Kaman Corporation
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Kaman
Corporation
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0000
Xxxx Xxxxx Xxxxxx
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Bloomfield,
CT 06002
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(000)
000-0000
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(000)
000-0000 Fax
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Xxxx.Xxxxxxx@Xxxxx.xxx
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Xxxx
X. Xxxxxxx
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Chairman
of the Board
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President
and Chief Executive Officer
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November 13, 2008
Xx.
Xxxxxx X. Xxxxxxx
Chief
Financial Officer
Kaman
Corporation
0000 Xxxx
Xxxxx Xxxxxx
P.O. Box
1
Bloomfield,
CT 06002
Re:
Retirement and Consulting Letter Agreement
Dear Xx.
Xxxxxxx:
Please
accept this Letter Agreement as confirmation of our understanding regarding your
retirement as Executive Vice President and Chief Financial Officer of Kaman
Corporation (the "Company"), effective November 30, 2008 and service as a
consultant thereafter to the Company until March 31, 2009.
Our
mutual agreement and understanding is as follows:
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1.
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RETIREMENT. You
agree that your last day of employment with the Company shall be November
30, 2008 (the
“Retirement Date”), and concurrently therewith you shall resign from your
positions as Executive Vice President and Chief Financial Officer of the
Company and all other offices and directorships you hold with the Company
or any affiliate without further action on either your part or by the
relevant entity.
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2.
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TERMINATION
OF EMPLOYMENT AGREEMENT AND CHANGE IN CONTROL AGREEMENT. You
and the Company acknowledge and mutually agree to terminate (i) on the
date hereof, the Executive Employment Agreement effective as of January 1,
2007 (the “Employment Agreement”) and (ii) on November 30, 2008, the
Amended and Restated Change in Control Agreement effective as of January
1, 2007, and, except as specifically provided herein, neither you nor the
Company will have any further rights or obligations thereunder following
the respective termination dates
thereof.
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3.
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TERMINATION
PAYMENTS. In consideration of the covenants and releases contained in this
Letter Agreement, your consulting services to the Company, and in lieu of
any payments which may be due under the Employment Agreement, the Company
agrees to provide you with the following termination
payments:
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Xx.
Xxxxxx X. Xxxxxxx
November
13, 2008
Page
2
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a.
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EQUITY
AWARDS. All unvested equity awards granted to you which are
outstanding as of the date hereof (a list of which is set forth on Exhibit A) will
continue to vest, become non-forfeitable and remain exercisable in
accordance with the terms of the applicable Company plans and your award
agreements thereunder.
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b.
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ACCRUED
AMOUNTS. The Company shall pay to you all Accrued Amounts (as
such term is defined in Section 8(b) of the Employment Agreement) at such
time or times as required by applicable law or the terms of the applicable
Company plan, program, policy or
arrangement.
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c.
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PRO
RATA ANNUAL BONUS. The Company shall pay to you on March 15,
2009 (or, if sooner, the date in calendar 2009 that annual bonuses are
paid to other similarly situated executives) a pro-rata portion of your
annual bonus for the 2008 performance year (determined by multiplying the
amount you would have received based upon actual financial performance had
your employment continued through the end of 2008 by
91.1803%).
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d.
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PRO
RATA LTIP. Your currently outstanding cash-based long-term
performance awards under the Company's long-term incentive program shall
be deemed fully vested and fully earned and then shall be cancelled in
exchange for a cash payment on March 15, 2009 (or, if sooner, the date
that the pro rata bonus is paid to you pursuant to Section 3(c) above),
with payment equal to 100% of the target value of such award multiplied by
a fraction, the numerator which is the number of days you remained
employed with the Company during the applicable three-year performance
period through your Retirement Date and the denominator of which is the
total number of days during such three-year performance
period.
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e.
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RELEASE. You
and the Company agree that the obligation of the Company to provide you
with the termination payments set forth in Sections 3(c) and 3(d) are
conditioned on and subject to your execution of a release substantially in
the form attached hereto as Exhibit B (the
“Release”) on or prior to the Retirement Date and your not revoking the
Release within the revocation period set forth in the
Release.
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4.
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LUMP
SUM SERP CALCULATION AND PAYMENT. You will be eligible for and will
receive as a lump sum payment on December 1, 2008 of approximately
$4,045,596 under the Kaman
Corporation Supplemental Employees’ Retirement Plan, provided that you
commence payment under your qualified plans immediately upon your
Retirement Date. You will be eligible for and will receive as a
lump sum payment six months and one day after November 30, 2008 of approximately
$4,751,890 under the Kaman
Corporation Post-2004 Supplemental Employees’ Retirement Plan, as
amended (the “Post-2004 SERP”), plus interest on such amount at
1.62% (the November 2008 short-term applicable federal rate compounded,
semi-annually).
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Xx.
Xxxxxx X. Xxxxxxx
November
13, 2008
Page
3
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5.
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CONSULTING
SERVICES. From December 1, 2008 through March 31, 2009 (the
"Consulting Term"), you agree to assist Xxxxxxx X. Xxxxxxxxx with his
transition to Chief Financial Officer of the Company and to assist and
advise him regarding all matters in which you were involved or of which
you had knowledge while employed by the Company. You agree to render up to
30 hours of such services per calendar month during the Consulting Term,
as may be requested by the Chief Executive Officer or Chief Financial
Officer of the Company. During the Consulting Term, the Company
shall pay you a fee of $25,000 per calendar month, payable within five
business days after the end of each month (the "Consulting Fee"). Further,
you shall be entitled to reimbursement for all reasonable expenses
incurred by you in the performance of consulting services hereunder, in
accordance with the policies of the Company. As additional
consideration for the consulting services, the Company shall transfer,
effective as of the date that consulting services commence hereunder,
title to the Company automobile provided to you under Section 6(c) of the
Employment Agreement on an “as is” basis, with the automobile’s fair
market value being taxable to you.
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7.
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CONFIDENTIALITY;
FULL FORCE AND EFFECT. You agree that you shall not, directly
or indirectly, use, make available, sell, disclose or otherwise
communicate to any person, other than in the course of your consulting
services and for the benefit of the Company, either during the Consulting
Term or at any time thereafter, any nonpublic, proprietary or confidential
information, knowledge or data relating to the Company, any of its
subsidiaries, affiliated companies or businesses, which shall have been
obtained by you during the Consulting Term. The foregoing shall not apply
to information that (i) was known to the public prior to its disclosure to
you; (ii) becomes known to the public subsequent to disclosure to you
through no wrongful act of you or any of your representatives; or (iii)
you are required to disclose by applicable law, regulation or legal
process (provided that the you provide the Company with prior notice of
the contemplated disclosure and reasonably cooperate with the Company at
its expense in seeking a protective order or other appropriate protection
of such information). Notwithstanding clauses (i) and (ii) of the
preceding sentence, your obligation to maintain such disclosed information
in confidence shall not terminate where only portions of the information
are in the public domain. You hereby acknowledge and agree that
your confidentiality obligations set forth in Section 11(a) of the
Employment Agreement shall survive termination of the Employment Agreement
and shall remain in full force and
effect.
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Xx.
Xxxxxx X. Xxxxxxx
November
13, 2008
Page
4
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10.
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NON-DISPARAGEMENT;
FULL FORCE AND EFFECT. Each of you and the Company (for purposes hereof,
“the Company”
shall mean only (i) the Company by press release or otherwise and (ii) the
executive officers and directors thereof and not any other employees)
agrees not to make any public statements that disparage the other party,
or in the case of the Company, its respective affiliates, officers,
directors, products or services. Notwithstanding the foregoing, statements
made in the course of sworn testimony in administrative, judicial or
arbitral proceedings (including, without limitation, depositions in
connection with such proceedings) or otherwise as required by law shall
not be subject to this Section. You hereby
acknowledge and agree that your non-disparagement obligations set forth in
Section 11(d) of the Employment Agreement shall survive termination of the
Employment Agreement and shall remain in full force and
effect.
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Xx.
Xxxxxx X. Xxxxxxx
November
13, 2008
Page
5
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14.
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REFORMATION.
If it is determined by a court of competent jurisdiction in any state that
any restriction in Sections 7-12 of this Agreement is excessive in
duration or scope or is unreasonable or unenforceable under the laws of
that state, it is the intention of you and the Company that such
restriction may be modified or amended by the court to render it
enforceable to the maximum extent permitted by the law of that
state.
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15.
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SECTION
409A. It is intended that any amounts payable and benefits
provided under this Letter Agreement shall either be exempt from or comply
with Section 409A of the Code so as not to subject you to payment of
any interest, penalties or additional tax imposed under Section 409A.
If and to the extent that you or the Company reasonably determines that
any amount payable or benefit provided under this Letter Agreement would
fail to satisfy any applicable requirement of Section 409A and
trigger the additional tax and/or penalties or interest imposed by
Section 409A, the parties shall negotiate in good faith and use
reasonable efforts to modify this Letter Agreement to bring it into
compliance with Section 409A; provided, however, that nothing herein
shall adversely affect your entitlement to any compensation or benefits
hereunder. Based upon current law, the Company does not intend
to report any compensation payable to you hereunder as being in
non-compliance with Section 409A of the Code. Notwithstanding
the foregoing, the Company makes no representation or warranty and shall
have no liability to you or any other person if any provisions of this
Letter Agreement are determined to constitute deferred compensation
subject to Section 409A but do not satisfy an exemption from, or the
conditions of, such section.
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Xx.
Xxxxxx X. Xxxxxxx
November
13, 2008
Page
6
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16.
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NOTICE.
For the purpose of this Letter Agreement, notices and all other
communications provided for in this Letter Agreement shall be in writing
and shall be deemed to have been duly given (a) on the date of delivery if
delivered by hand, (b) on the date of transmission, if delivered by
confirmed facsimile, (c) on the first business day following the date of
deposit if delivered by guaranteed overnight delivery service, or (d) on
the fourth business day following the date delivered or mailed by United
States registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
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If to you: at the address (or to the
facsimile number) shown on the records of theCompany
If to the Company:
Kaman Corporation
0000 Xxxx Xxxxx Xxxxxx, P.O. Box
1
Bloomfield, CT 06002
Attention: Xxxxxxx X. Xxxxx,
Esq.
Facsimile No.: 000
000-0000
or to
such other address as either party may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
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17.
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SECTION
HEADINGS; INCONSISTENCY. The section headings used in this Letter
Agreement are included solely for convenience and shall not affect, or be
used in connection with, the interpretation of this Agreement. If there is
any inconsistency between this Letter Agreement and any other agreement
(including but not limited to any option, stock, long-term incentive or
other equity award agreement), plan, program, policy or practice
(collectively, “Other Provision”) of the Company, the terms of this Letter
Agreement shall control over such Other Provision; provided, however, that
nothing in this Letter Agreement shall adversely affect your entitlement
to the Accrued Amounts.
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18.
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PRIOR
AGREEMENTS. Subject to Section 2 of this Letter Agreement, this
Letter Agreement supersedes and replaces any and all
prior agreements, including the Employment Agreement and the
Amended and Change in Control Agreement between you and the Company dated
January 1, 2007 (collectively, the “Prior Agreements”) between the Company
and you. By signing this Agreement, you acknowledge that the Prior
Agreements are terminated and cancelled, and release and discharge the
Company from any and all obligations and liabilities heretofore or now
existing under or by virtue of such Prior Agreements, it being the
intention of the parties hereto that this Letter Agreement effective
immediately shall supersede and be in lieu of the Prior
Agreements.
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Xx.
Xxxxxx X. Xxxxxxx
November
13, 2008
Page
7
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19.
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NO
ASSIGNMENT. This Letter Agreement is personal to each of the parties
hereto. No party may assign or delegate any rights or
obligations hereunder without first obtaining the written consent of the
other party hereto, except that the Company may assign this Letter
Agreement to any successor to all or substantially all of the business
and/or assets of the Company provided the Company shall require such
successor to expressly assume and agree in writing to perform this Letter
Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place and shall
deliver a copy of such assignment to
you.
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20.
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SEVERABILITY.
The provisions of this Letter Agreement shall be deemed severable and the
invalidity of unenforceability of any provision shall not affect the
validity or enforceability of the other provisions
hereof.
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21.
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COUNTERPARTS.
This Letter Agreement may be executed in counterparts, each of which shall
be deemed to be an original but all of which together will constitute one
and the same instruments. One or more counterparts of this Agreement may
be delivered by facsimile, with the intention that delivery by such means
shall have the same effect as delivery of an original counterpart
thereof.
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22.
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ARBITRATION.
Any dispute or controversy arising under or in connection with this Letter
Agreement, other than injunctive relief under Section 13 hereof or damages
for breach of Sections 7-12, shall be settled exclusively by arbitration,
conducted before a single arbitrator in Hartford, Connecticut administered
by the American Arbitration Association (“AAA”) in accordance with its
Commercial Arbitration Rules then in effect. The single arbitrator shall
be selected by the mutual agreement of the Company and you, unless the
parties are unable to agree to an arbitrator, in which case, the
arbitrator will be selected under the procedures of the AAA. The
arbitrator will have the authority to permit discovery and to follow the
procedures that he/she determines to be appropriate. The arbitrator will
have no power to award consequential (including lost profits), punitive or
exemplary damages. The decision of the arbitrator will be final and
binding upon the parties hereto. Judgment may be entered on the
arbitrator’s award in any court having
jurisdiction.
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23.
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MISCELLANEOUS.
No provision of this Letter Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in
writing and signed by you and such officer or director as may be
designated by the Board. No waiver by either party hereto at any time of
any breach by the other party hereto of, or compliance with, any condition
or provision of this Letter Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time. This Letter Agreement
together with all exhibits hereto sets forth the entire agreement of the
parties hereto in respect of the subject matter contained herein. No
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which
are not expressly set forth in this Letter Agreement. The validity,
interpretation, construction and performance of this Agreement shall be
governed by the laws of the State of Connecticut without regard to its
conflicts of law principles.
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Xx.
Xxxxxx X. Xxxxxxx
November
13, 2008
Page
8
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24.
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REPRESENTATIONS.
You represent and warrant to the Company that you have the legal right to
enter into this Letter Agreement and to perform all of the obligations on
your part to be performed hereunder in accordance with its terms and that
you are not a party to any agreement or understanding, written or oral,
which could prevent you from entering into this Letter Agreement or
performing all of your obligations
hereunder.
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Very
truly yours,
/s/ Xxxx
X. Xxxxxxx
Acknowledged
and Agreed:
/s/ Xxxxxx X.
Xxxxxxx
Xxxxxx X.
Xxxxxxx
EXHIBIT
A
EQUITY
AWARDS
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Options
Not
Vested
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Option
Price
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Vesting
Date
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Non-Qualified
Bonus:
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6,000
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$11.495
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2/22/2009
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6,000
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$11.495
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2/22/2010
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Exhibit
B
AGREEMENT
AND GENERAL RELEASE
FORM
OF RELEASE
AGREEMENT
AND GENERAL RELEASE
Kaman
Corporation, its affiliates, subsidiaries, divisions, successors and assigns in
such capacity, and the current, future and former employees, officers,
directors, trustees and agents thereof (collectively referred to throughout this
Agreement as “Employer”), and Xxxxxx X. Xxxxxxx (“Executive”), the Executive’s
heirs, executors, administrators, successors and assigns (collectively referred
to throughout this Agreement as “Employee”) agree:
1. Last Day of
Employment. Executive’s last day of employment with Employer
is November 30, 2008. In addition, effective as of November 30, 2008,
Executive resigns from the Executive’s positions as Executive Vice President and
Chief Financial Officer of Employer and will not be eligible for any benefits or
compensation after such date, including payments under the Executive’s Change in
Control Agreement, other than as specifically provided in the Letter Agreement
between Employer and Executive effective as of November 13, 2008 (the “Letter
Agreement”). Executive further
acknowledges and agrees that, after November 30, 2008, the Executive will not
represent the Executive as being a director, employee, officer, trustee, agent
or representative of Employer for any purpose. In addition, effective
as of November 30, 2008, Executive resigns from all offices, directorships,
trusteeships, committee memberships and fiduciary capacities held with, or on
behalf of, Employer or any benefit plans of Employer. These
resignations will become irrevocable as set forth in Section 3
below.
2. Consideration. The
parties acknowledge that this Agreement and General Release is being executed in
accordance with Section 3.e. of the Letter Agreement.
3. Revocation. Executive
may revoke this Agreement and General Release for a period of seven (7) calendar
days following the day Executive executes this Agreement and General
Release. Any revocation within this period must be submitted, in
writing, to Employer and state, “I hereby revoke my acceptance of our Agreement
and General Release.” The revocation must be personally delivered to
Employer’s Chief Legal Officer, or his/her designee, or mailed to Kaman
Corporation, 0000 Xxxx Xxxxx Xxxxxx, X.X. Box 1, Bloomfield, CT 06002, Attention
Xxxxxxx Xxxxx, and postmarked within seven (7) calendar days of execution of
this Agreement and General Release. This Agreement and General
Release shall not become effective or enforceable until the revocation period
has expired. If the last day of the revocation period is a Saturday,
Sunday, or legal holiday in Hartford, Connecticut, then the revocation period
shall not expire until the next following day which is not a Saturday, Sunday,
or legal holiday.
4. General
Release of Claim. Subject to the full satisfaction by the Employer of
its obligations under the Letter Agreement, Employee knowingly and voluntarily
releases and forever discharges Employer from any and all claims, causes of
action, demands, fees and liabilities of any kind whatsoever, whether known and
unknown, against Employer, Employee has, has ever had or may have as of the date
of execution of this Agreement and General Release, including, but not limited
to, any alleged violation of:
- Title
VII of the Civil Rights Act of 1964, as amended;
- The
Civil Rights Act of 1991;
- Sections
1981 through 1988 of Title 42 of the United States Code, as
amended;
- The
Employee Retirement Income Security Act of 1974, as amended;
- The
Immigration Reform and Control Act, as amended;
- The
Americans with Disabilities Act of 1990, as amended;
- The
Age Discrimination in Employment Act of 1967, as amended;
- The
Older Workers Benefit Protection Act of 1990;
- The
Worker Adjustment and Retraining Notification Act, as amended;
- The
Occupational Safety and Health Act, as amended;
- The
Family and Medical Leave Act of 1993;
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Any
wage payment and collection, equal pay and other similar laws, acts and
statutes of the State of
Connecticut;
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Any
other federal, state or local civil or human rights law or any other
local, state or federal law, regulation or
ordinance;
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Any
public policy, contract, tort, or common law;
or
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Any
allegation for costs, fees, or other expenses including attorneys fees
incurred in these matters.
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Notwithstanding anything herein to the
contrary, the sole matters to which the Agreement and General Release do not
apply are: (i) Employee’s express rights under any pension (including but not
limited to any rights under the Kaman Corporation Supplemental Retirement Plan)
or claims for accrued vested benefits under any other employee benefit plan,
policy or arrangement maintained by Employer or under COBRA and other Accrued
Amounts (as such term is defined in the Employment Agreement); (ii) Employee’s
rights under the provisions of the Employment Agreement which are intended to
survive termination of employment; or (iii) Employee’s rights as a
stockholder.
5. No Claims Permitted. Employee waives Executive’s right to file any charge or complaint against Employer arising out of Executive’s employment with or separation from Employer before any federal, state or local court or any state or local administrative agency, except where such waivers are prohibited by law.
6. Affirmations. Employee
affirms Executive has not filed, has not caused to be filed, and is not
presently a party to, any claim, complaint, or action against Employer in any
forum. Employee further affirms that the Executive has been paid
and/or has received all compensation, wages, bonuses, commissions, and/or
benefits to which Executive may be entitled and no other compensation, wages,
bonuses, commissions and/or benefits are due to Executive, except as provided in
the Letter Agreement. Employee also affirms Executive has no known
workplace injuries.
7. Cooperation;
Return of Property. In accordance with Section 11(f) of the
Employment Agreement, Employee agrees to reasonably cooperate with Employer and
its counsel in connection with any investigation, administrative proceeding or
litigation relating to any matter that occurred during Executive’s employment in
which Executive was involved or of which Executive has knowledge and Employer
will reimburse the Employee for any reasonable out-of-pocket travel, delivery or
similar expenses incurred and lost wages (or will provide reasonable
compensation if Executive is not then employed) in providing such
service to Employer. Employee represents that Executive has complied
with Section 11(e) of the Employee Agreement regarding the return of
property.
8. Governing
Law and Interpretation. This Agreement and General Release shall be
governed and conformed in accordance with the laws of the State of Connecticut
without regard to its conflict of laws provisions. In the event
Employee or Employer breaches any provision of this Agreement and General
Release, Employee and Employer affirm either may institute an action to
specifically enforce any term or terms of this Agreement and General
Release. Should any provision of this Agreement and General Release
be declared illegal or unenforceable by any court of competent jurisdiction and
should the provision be incapable of being modified to be enforceable, such
provision shall immediately become null and void, leaving the remainder of this
Agreement and General Release in full force and effect. Nothing
herein, however, shall operate to void or nullify any general release language
contained in the Agreement and General Release.
9. No
Admission of Wrongdoing. Employee agrees neither this Agreement and
General Release nor the furnishing of the consideration for this Release shall
be deemed or construed at any time for any purpose as an admission by Employer
of any liability or unlawful conduct of any kind.
10. Amendment. This
Agreement and General Release may not be modified, altered or changed except
upon express written consent of both parties wherein specific reference is made
to this Agreement and General Release.
11. Entire
Agreement. This Agreement and General Release sets forth the entire
agreement between the parties hereto and fully supersedes any prior agreements
or understandings between the parties; provided, however, that notwithstanding
anything in this Agreement and General Release, the provisions in the Letter
Agreement which are intended to survive termination of the Letter Agreement
(and, by cross-reference, to the Employment Agreement), including but not
limited to those contained in Section 11 of the Employment Agreement, shall
survive and continue in full force and effect. Employee acknowledges
Executive has not relied on any representations, promises, or agreements of any
kind made to Executive in connection with Executive’s decision to accept this
Agreement and General Release.
EMPLOYEE
HAS BEEN ADVISED THAT EXECUTIVE HAS UP TO TWENTY-ONE (21) CALENDAR DAYS TO
REVIEW THIS AGREEMENT AND GENERAL RELEASE AND HAS BEEN ADVISED IN WRITING TO
CONSULT WITH AN ATTORNEY PRIOR TO EXECUTION OF THIS AGREEMENT AND GENERAL
RELEASE.
EMPLOYEE
AGREES ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS AGREEMENT AND
GENERAL RELEASE DO NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL TWENTY-ONE
(21) CALENDAR DAY CONSIDERATION PERIOD.
HAVING
ELECTED TO EXECUTE THIS AGREEMENT AND GENERAL RELEASE, TO FULFILL THE PROMISES
SET FORTH HEREIN, AND TO RECEIVE THE SUMS AND BENEFITS SET FORTH IN THE
EMPLOYMENT AGREEMENT, EMPLOYEE FREELY AND KNOWINGLY, AND AFTER DUE
CONSIDERATION, ENTERS INTO THIS AGREEMENT AND GENERAL RELEASE INTENDING TO
WAIVE, SETTLE AND RELEASE ALL CLAIMS EXECUTIVE HAS OR MIGHT HAVE AGAINST
EMPLOYER.
IN
WITNESS WHEREOF, the parties hereto knowingly and voluntarily executed this
Agreement and General Release as of the date set forth below:
