EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit
10g (v)
This
EXECUTIVE EMPLOYMENT AGREEMENT (the “Agreement”) is effective as of January 1,
2007 (the “Effective Date”) between Kaman Corporation, a Connecticut corporation
(the “Company”), and Xxxxxx X. Xxxxx (the “Executive”), and is amended and
restated as of November 11, 2008.
W I T N E
S S E T H:
WHEREAS,
the Executive is currently employed as the Senior Vice President and Chief
Information Officer of the Company;
WHEREAS,
the Company has offered to continue employing the Executive on the terms set
forth below; and
WHEREAS,
the Executive has agreed to continued employment with the Company on the terms
as set forth below;
NOW
THEREFORE, in consideration of the foregoing, of the mutual promises contained
herein and of other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. EMPLOYMENT
TERM.
The
Executive’s term of employment under this Agreement shall be for an initial term
commencing on the Effective Date and shall end on the third anniversary of the
Effective Date. The term of this Agreement shall be automatically
extended thereafter for successive one (1) year periods unless, at least ninety
(90) days prior to the end of the initial term of this Agreement or the then
current succeeding one-year extended term of this Agreement, the Company or
Executive has notified the other that the term hereunder shall terminate upon
its expiration date. The initial term of this Agreement, as it may be
extended from year to year thereafter, is herein referred to as the "Employment
Term." In all events hereunder, Executive's employment is subject to
earlier termination pursuant to Section 7 hereof, and upon such earlier
termination the Employment Term shall be deemed to have ended.
2. POSITION
& DUTIES.
(a) The
Executive shall serve as the Company’s Senior Vice President and Chief
Information Officer under this Agreement during the Employment
Term. As Senior Vice President and Chief Information Officer, the
Executive shall have such duties, authorities and responsibilities commensurate
with the duties, authorities and responsibilities of persons in similar
capacities in similarly sized companies and such other duties and
responsibilities as the Company’s Board of Directors (the “Board”) shall
designate that are consistent with the Executive’s positions as Senior Vice
President and Chief Information Officer.
(b) During
the Employment Term, the Executive shall use the Executive’s best reasonable
efforts to perform faithfully and efficiently the duties and responsibilities
assigned to the Executive hereunder (including applicable obligations under
state law) and devote substantially all of the Executive’s business time
(excluding periods of vacation and other approved leaves of absence) to the
performance of the Executive’s duties with the Company, provided the foregoing
shall not prevent the Executive from (i) participating in charitable, civic,
educational, professional, community or industry affairs or, with prior written
approval of the Board, serving on the board of directors or advisory boards of
other companies; and (ii) managing the Executive’s and the Executive’s family’s
personal investments so long as such activities do not materially interfere with
the performance of the Executive’s duties hereunder or create a potential
business conflict or the appearance thereof. If at any time service
on any board of directors or advisory board would, in the good faith judgment of
the Board, conflict with the Executive’s fiduciary duty to the Company or create
any appearance thereof, the Executive shall promptly resign from such other
board of directors or advisory board after written notice of the conflict is
received from the Board.
(c) The
Executive further agrees to serve without additional compensation as an officer
and director of any of the Company’s subsidiaries and agrees that any amounts
received from any such corporation may be offset against the amounts due
hereunder.
3. BASE
SALARY. The Company agrees to pay the Executive a base salary (the
“Base Salary”) during the Employment Period at an annual rate of $293,000
(subject to possible increase if the Board, in its sole discretion, so
determines), payable in accordance with the regular payroll practices of the
Company, but not less frequently than monthly.
4. BONUSES. The
Executive shall be eligible to participate in the Company’s bonus and other
short and long term incentive compensation plans and programs for the Company’s
senior executives at a level commensurate with the Executive’s position during
the Employment Term. The Executive shall have the opportunity to earn
an annual target bonus measured against performance criteria to be determined by
the Board (or a committee thereof) of at least 45% of Base Salary as an initial
target bonus opportunity as described in the terms of the Company’s annual bonus
plan as then in effect. Except as provided under Section 8 of the
Agreement, the Executive shall receive payments with respect to the plans and
programs described in this Section 4 in accordance with the terms of such plans
and programs.
5. EQUITY
AWARDS. The Executive shall be eligible to receive additional grants
of stock options, stock appreciation rights, restricted stock and other equity
awards at the sole discretion of the Board or the Personnel and Compensation
Committee (the “Committee”). The Executive shall be subject to, and
shall comply with, the Company’s stock ownership guidelines (unless waived by
the Compensation Committee) and the Company’s reasonable policies regarding
forfeitures of cash and equity incentive awards due to material financial
restatements due to executive misconduct, as may be in effect from time to time,
it being agreed that any such policies shall only be effective with respect to
awards made on or after the Effective Date. If there is a Change in
Control (as defined in the Kaman Corporation 2003 Stock Incentive Plan in effect
on the date hereof), all then outstanding unvested equity awards granted to the
Executive (for example, stock options, stock appreciation rights and restricted
stock), whether under this Agreement or otherwise, will fully vest and become
non-forfeitable and remain exercisable in accordance with the terms of the
applicable Company plans.
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6. EMPLOYEE
BENEFITS.
(a) BENEFIT
PLANS. The Executive shall be entitled to participate in all employee
benefit plans of the Company including, but not limited to, pension, thrift,
profit sharing, medical coverage, education, other retirement or welfare
benefits and perquisites (as approved by the Committee) that the Company has
adopted or may adopt, maintain or contribute to for the benefit of its senior
executives at a level commensurate with the Executive’s positions subject to
satisfying the applicable eligibility requirements.
(b) VACATION. The
Executive shall be entitled to at least 4 weeks paid vacation per year. Vacation
may be taken at such times as the Executive elects with due regard to the needs
of the Company. Unused vacation at the end of a calendar year shall
be forfeited according to the Company’s vacation policy.
(c) AUTOMOBILE. The
Company shall provide the Executive with a leased automobile as approved by the
Committee as per the Company’s perquisites policy from time to
time.
(d) BUSINESS
AND ENTERTAINMENT EXPENSES. Upon presentation of appropriate
documentation, the Executive shall be reimbursed in accordance with the
Company’s expense reimbursement policy for all reasonable and necessary business
and entertainment expenses incurred in connection with the performance of the
Executive’s duties hereunder.
(e) CERTAIN
AMENDMENTS. Nothing herein shall be construed to prevent the Company
from amending, altering, eliminating or reducing any plans, benefits or programs
so long as the Executive continues to receive compensation and benefits
consistent with Sections 3 through 6.
7. TERMINATION. The
Executive’s employment and the Employment Term shall terminate on the first of
the following to occur:
(a) DISABILITY. Upon
written notice by the Company to the Executive of termination due to Disability,
while the Executive remains Disabled. For purposes of this Agreement,
“Disability” shall be deemed the reason for the termination by the Company of
the Executive’s employment, if, as a result of the Executive incapacity due to
physical or mental illness, the Executive shall have been absent from fully
performing the Executive’s duties with the Company for a period of 6 consecutive
months, the Company shall have provided a notice of termination under this
Section 7(a), and, within thirty days after such notice being given, the
Executive shall not have returned to the fully performing the Executive’s duties
hereunder.
(b) DEATH. Automatically
on the date of death of the Executive.
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(c) CAUSE. Immediately
upon written notice by the Company to the Executive of a termination for
Cause. “Cause” shall mean (i) Executive’s conviction of (or a plea of
guilty or nolo contendere to) a felony or any crime involving moral turpitude,
dishonesty, fraud, theft or financial impropriety; or (ii) a determination by a
majority of the Board in good faith that Executive has (A) willfully and
continuously failed to perform substantially the Executive’s duties (other than
any such failure resulting from the Executive’s Disability or incapacity due to
bodily injury or physical or mental illness), after a written demand for
substantial performance is delivered to the Executive by the Board that
specifically identifies the manner in which the Board believes that the
Executive has not substantially performed the Executive’s duties, (B) engaged in
illegal conduct, an act of dishonesty or gross misconduct, in each case which is
in the course of the Executive’s employment and materially injurious to the
Company, or (C) willfully violated a material requirement of the Company’s code
of conduct or the Executive’s fiduciary duty to the Company. No act
or failure to act on the part of the Executive shall be considered “willful”
unless it is done, or omitted to be done, by the Executive in bad faith and
without reasonable belief that the Executive’s action or omission was in, or not
opposed to, the best interests of the Company. Notwithstanding the
foregoing, Cause shall not include any act or omission of which the Audit
Committee of the Board (or the full Board) has had actual knowledge of all
material facts related thereto for at least 90 days without asserting that the
act or omission constitutes Cause.
(d) WITHOUT
CAUSE. Upon written notice by the Company to the Executive of an
involuntary termination without Cause and other than due to death or
Disability.
(e) GOOD
REASON. Upon written notice by the Executive to the Company of a
termination for Good Reason, unless such events are corrected in all material
respects by the Company within 30 days following written notification by the
Executive to the Company, that the Executive intends to terminate the
Executive’s employment hereunder for one of the reasons set forth
below. “Good Reason” shall mean, without the Executive’s express
written consent, the occurrence of any of the following events:
(1) the
Company removing the Executive from the positions of Senior Vice President and
Chief Information Officer (other than for Cause);
(2) a
reduction of the Executive’s Base Salary, annual initial target bonus
opportunity or modified bonus opportunity to the extent the modification to the
initial target bonus opportunity is adverse to the Executive relative to the
modification made to the initial target bonus opportunity of other senior
officers of the Executive’s business unit;
(3) a
failure to pay the Executive’s compensation or benefits provided or referred to
under this Agreement;
(4) the
Executive being required to relocate to a principal place of employment more
than 50 miles from the Executive’s principal place of employment with the
Company as of the Effective Date; or
(5) the
assignment of duties to the Executive that are materially inconsistent with the
Executive’s positions as Senior Vice President and Chief Information
Officer.
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Notwithstanding
the foregoing, (i) a suspension of the Executive’s title and authority while on
administrative leave due to a reasonable belief that the Executive has engaged
in misconduct, whether or not the suspected misconduct constitutes Cause for
employment termination, shall not be considered “Good Reason”; provided that if
such leave is unpaid and either the Executive returns to full-time employment
under this Agreement or it is subsequently determined the Executive’s employment
is to be terminated without Cause, then the compensation and benefits that would
have been payable during such leave will be paid as soon as reasonably
practicable with interest at the prime rate beginning as of the date such leave
commenced plus 100 basis points; (ii) a condition shall not be considered Good
Reason if the Executive does not provide written notification to the Company of
the existence of a condition described above in clauses (1) – (5) above within
90 days following the initial existence of such condition, and (iii) prospective
changes to employee benefits (as defined in Section 6) for future employment
made on an across-the-board basis to all similarly situated executives of the
Company and its subsidiaries shall not be considered Good Reason.
(f) WITHOUT
GOOD REASON. Upon 60 days’ prior written notice by the Executive to
the Company of the Executive’s termination of employment without Good Reason
(which the Company may, in its sole discretion, make effective earlier than any
notice date).
(g) RETIREMENT. Upon
remaining employed with the Company until at least the attainment of age 65 (the
“Retirement Eligibility Date”). Nothing herein shall be construed as
limiting the Executive’s right, if any, to terminate employment prior to the
Retirement Eligibility Date and receive compensation and benefits, as
applicable, provided under the respective terms of the Company’s benefit
plans.
8. CONSEQUENCES
OF TERMINATION. Any termination payments made and benefits provided
under this Agreement to the Executive shall be in lieu of any termination or
severance payments or benefits for which the Executive may be eligible under any
of the plans, policies or programs of the Company or its affiliates as may be in
effect from time to time including but not limited to the Change in Control
Agreement. For purposes of determining the date on which to make
payments under this Section 8, a termination of employment shall only occur upon
the Executive’s “separation from service” within the meaning of Section 409A of
the Code and as determined after applying the presumptions set forth in Treas.
Reg. Section 1.409A-1(h)(1). Except to the extent otherwise provided
in this Agreement, all benefits, including, without limitation, stock options,
stock appreciation rights, restricted stock units and other awards under the
Company’s long-term incentive programs, shall be subject to the terms and
conditions of the plan or arrangement under which such benefits accrue, are
granted or are awarded. Subject to Section 9, the following amounts
and benefits shall be due to the Executive.
(a) DISABILITY. Upon
employment termination due to Disability, the Company shall pay or provide the
Executive (i) any unpaid Base Salary through the date of termination and any
accrued vacation in accordance with Company policy; (ii) any unpaid bonus or
other short-term and long-term incentive compensation as described in Section 4
above earned with respect to any completed fiscal year; (iii) reimbursement for
any unreimbursed expenses incurred through the date of termination; (iv) all
other payments and benefits to which the Executive may be entitled under the
terms of any applicable compensation arrangement or benefit, equity or
perquisite plan or program or grant or this Agreement, including but not limited
to any applicable pension, retirement and insurance benefits (collectively,
“Accrued Amounts”). The Executive will also be paid a pro-rata
portion of the Executive’s annual bonus for the performance year in which the
Executive’s termination occurs, payable at the time that annual bonuses are paid
to other senior executives (determined by multiplying the amount the Executive
would have received upon target performance had employment continued through the
end of the performance year by a fraction, the numerator of which is the number
of days during the performance year of termination that the Executive is
employed by the Company and the denominator of which is 365).
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(b) DEATH. In
the event the Employment Term ends on account of the Executive’s death, the
Executive’s estate (or to the extent a beneficiary has been designated in
accordance with a program, the beneficiary under such program) shall be entitled
to any Accrued Amounts, including but not limited to proceeds from any Company
sponsored life insurance programs. Executive’s estate (or
beneficiary) will also be paid a pro-rata portion of the Executive’s annual
bonus for the performance year in which the Executive’s death occurs, payable at
the time that annual bonuses are paid to other senior executives (determined by
multiplying the amount the Executive would have received based upon target
performance had employment continued through the end of the performance year by
a fraction, the numerator of which is the number of days during the performance
year of termination that the Executive is employed by the Company and the
denominator of which is 365).
(c) TERMINATION
FOR CAUSE OR WITHOUT GOOD REASON. If the Executive’s employment
should be terminated (i) by the Company for Cause, or (ii) by the Executive
without Good Reason, the Company shall pay to the Executive any Accrued
Amounts.
(d) TERMINATION
WITHOUT CAUSE OR FOR GOOD REASON. If the Executive’s employment by
the Company is terminated by the Company other than for Cause (other than a
termination due to Disability or death) or by the Executive for Good Reason,
then the Company shall pay or provide the Executive with:
(1) Accrued
Amounts;
(2) a
pro-rata portion of the Executive’s annual bonus for the performance year in
which the Executive’s termination occurs, payable at the time that annual
bonuses are paid to other senior executives (determined by multiplying the
amount the Executive would have received based upon actual financial performance
had employment continued through the end of the performance year by a fraction,
the numerator of which is the number of days during the performance year that
the Executive is employed by the Company and the denominator of which is
365);
(3) an
amount equal to the product of two times the sum of (i) the Executive’s then
current Base Salary and (ii) the most recent annual bonus paid to the Executive
(or awarded by the Board or the Committee for the preceding calendar year if not
then paid), payable in a single lump sum within 30 days after employment
termination. Notwithstanding the foregoing, if the Executive terminates
employment within two years of his Retirement Eligibility Date, the lump sum
amount described in the immediately preceding sentence shall be reduced by
multiplying it by a fraction, the numerator of which is the number of days from
the Executive’s employment termination date until the Retirement Eligibility
Date, and the denominator of which is 730;
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(4) (x)
each cash-based long-term performance award for which the performance period has
not yet been completed as of the date of such termination that was granted with
a performance period beginning on or prior to January 1, 2009 (and except as
provided in clause (y) below, with respect to any such award granted with a
performance period beginning after January 1, 2009) shall be deemed fully vested
and fully earned and then shall be cancelled in exchange for an amount payable
in cash 30 days after employment termination equal to 100% of the target value
of such award multiplied by a fraction, the numerator which is the number of
days the Executive remained employed with the Company during the award’s
performance period and the denominator of which is the total number of days
during the award’s performance period; and (y) to the extent necessary for such
compensation to qualify as “performance-based compensation” under Section 162(m)
of the Code, each cash-based long-term performance award for which the
performance period has not yet been completed as of the date of such termination
that was granted with a performance period beginning after January 1, 2009 shall
be payable in cash, at the time that any such long-term performance award is
paid to other senior executives, such payment to be made on a pro-rata basis
(determined by multiplying the amount the Executive would have received based
upon actual financial performance had employment continued through the end of
the performance period by a fraction, the numerator which is the number of days
the Executive remained employed with the Company during the award’s performance
period and the denominator of which is the total number of days during the
award’s performance period);
(5) immediate
title to the Company automobile to the Executive on an “as is” basis, with the
automobile’s fair market value being taxable to the Executive;
(6) subject
to the Executive’s continued co-payment of premiums, if required under Company
policy, continued participation for 24 months but in no event later than the
Retirement Eligibility Date in all medical, dental and vision plans which cover
the Executive (and eligible dependents) on a monthly basis upon the same terms
and conditions (except for the requirements of the Executive’s continued
employment) in effect for active employees of the Company. In the
event the Executive obtains other employment that offers substantially similar
or improved benefits, as to any particular medical, dental or vision plan, such
continuation of coverage by the Company for such similar or improved benefit
under such plan under this subsection shall immediately cease. The
continuation of health benefits under this subsection shall reduce and count
against the Executive’s rights under the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended (“COBRA”). The parties intend
that the first 18 months of continued medical, dental an vision coverage shall
not constitute a “deferral of compensation” under Treas. Reg. Sect. 1.409A-1(b),
and that the remaining portion of such coverage shall qualify as a
“reimbursement or in-kind benefit plan” under Treas. Reg. Sect.
1.409A-3(i)(1)(iv); and
(7) the
Company shall continue to pay all premiums on the life insurance coverage issued
to the Executive for 24 months but in no event later than the Retirement
Eligibility Date.
(e) RETIREMENT. If
the Executive terminates employment on or following the Executive’s Retirement
Eligibility Date, the Company shall pay to the Executive:
(1) any
Accrued Amounts;
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(2) a
pro-rata portion of the Executive’s annual bonus for the performance year in
which the Executive’s retirement occurs, payable at the time that annual bonuses
are paid to other senior executives (determined by multiplying the amount the
Executive would have received based upon actual financial performance had
employment continued through the end of the performance year by a fraction, the
numerator of which is the number of days during the performance year of
termination that the Executive is employed by the Company and the denominator of
which is 365);
(3) (x) each
cash-based long-term performance award for which the performance period has not
yet been completed as of the date of such termination that was granted with a
performance period beginning on or prior to January 1, 2009 (and except as
provided in clause (y) below, with respect to any such award granted with a
performance period beginning after January 1, 2009) shall be deemed fully vested
and fully earned and then shall be cancelled in exchange for an amount payable
in cash 30 days after employment termination equal to 100% of the target value
of such award multiplied by a fraction, the numerator which is the number of
days the Executive remained employed with the Company during the award’s
performance period and the denominator of which is the total number of days
during the award’s performance period; and (y) to the extent necessary for such
compensation to qualify as “performance-based compensation” under Section 162(m)
of the Code, each cash-based long-term performance award for which the
performance period has not yet been completed as of the date of such termination
that was granted with a performance period beginning after January 1, 2009 shall
be payable in cash, at the time that any such long-term performance award is
paid to other senior executives, such payment to be made on a pro-rata basis
(determined by multiplying the amount the Executive would have received based
upon actual financial performance had employment continued through the end of
the performance period by a fraction, the numerator which is the number of days
the Executive remained employed with the Company during the award’s performance
period and the denominator of which is the total number of days during the
award’s performance period);
(4) immediate
title to the Company automobile to the Executive on an “as is” basis, with the
automobile’s fair market value being taxable to the Executive; and
(5) the
Executive shall be considered to have “retired” on the Executive’s date of
termination of employment with the Company on or following the Executive’s
Retirement Eligibility Date for purposes of any plans, programs, agreements or
arrangements with the Company or its affiliates.
(f) ACCELERATION
OF EQUITY AWARDS
If the
Executive’s employment by the Company is terminated by the Company for
Disability (as defined in Section 7(a)) or without Cause (as defined in Section
7(c)), or by the Executive for Good Reason (as defined in Section 7(e)),
Retirement (as defined in Section 7(g)) or due to death, all then outstanding
unvested equity awards granted to the Executive (for example, stock options,
stock appreciation rights and restricted stock), whether under this Agreement or
otherwise, will fully vest and become non-forfeitable and remain exercisable in
accordance with the terms of the applicable Company
plans. Notwithstanding the foregoing, to the extent that any unvested
equity award is intended to qualify as “performance-based compensation” within
the meaning of Section 162(m) of the Code, based solely on a vesting condition
requiring achievement of one or more performance goals with respect to a
performance period beginning after January 1, 2009, and the Executive’s
employment is terminated under Section 8(d) (without Cause or for Good Reason)
or under Section 8(e) (Retirement), then the number of shares that will vest due
to such event shall equal the number of shares the Executive would have received
based upon actual performance had employment continued through the end of the
performance period multiplied by a fraction, the numerator which is the number
of days the Executive remained employed with the Company during such award’s
performance period and the denominator of which is the total number of days
during such award’s performance period.
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(g) COORDINATION
WITH CHANGE IN CONTROL AGREEMENT.
(h) TIMING
OF BONUSES AND CERTAIN CASH-BASED LONG-TERM PERFORMANCE AWARDS
Reference
to paying a pro-rata bonus or a pro-rata cash-based long-term performance award
under Section 8 at the same time as such compensation is paid to other senior
executives shall mean the payment date as determined under the terms of the
Company’s annual bonus plan or cash-based long term performance program then in
effect. Notwithstanding anything to the contrary in this Section 8,
the pro-rata annual bonus for the performance year of termination (under Section
8(a) (in the event of Disability), Section 8(b) (in the event of death), Section
8(d) (in the event of termination without Cause or for Good Reason) or Section
8(e) (in the event of Retirement) and the pro-rata cash-based long-term
performance award, if any, for any outstanding performance period at the time of
employment termination (under Section 8(d) (in the event of termination with
Cause or for Good Reason) or Section 8(e) (in the event of Retirement)) shall
not be paid earlier than the first business day after the date that is
six-months following the date of the Executive’s termination of employment in
the event that annual bonuses paid to other senior executive for that year are
not paid by March 15th of the calendar year immediately following the calendar
year in respect of which such bonuses are earned. To the extent that
payment of the pro-rata portion of the annual bonus, cash-based long-term
performance award, or both as provided for herein is so delayed, such payment
shall be credited with interest at the short-term applicable federal rate under
Section 1274 of the Code, determined as of March 15th of the year following such
termination, from such March 15th to the date that such payment is made to the
Executive hereunder.
9. CONDITIONS. Any
payments or benefits made or provided pursuant to Section 8 (other than Accrued
Amounts) are subject to the Executive’s:
(a) compliance
with the provisions of Section 11 hereof;
(b) delivery
to the Company of an executed Agreement and General Release (the “General
Release”), which shall be substantially in the form attached hereto as Appendix
A (with such changes therein or additions thereto as needed under then
applicable law to give effect to its intent and purpose) within 21 days (42 days
in the case of an employment termination due to Disability) of presentation
thereof by the Company to the Executive (which presentation by the Company shall
be made no later than two (2) business days following the date of employment
termination as determined under Section 8), which is not subsequently revoked;
and
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(c) delivery
to the Company of a resignation from all offices, directorships and fiduciary
positions with the Company, its affiliates and employee benefit
plans.
For
purposes of any payments or benefits provided under Section 8 (other than
Accrued Amounts) to an Executive’s beneficiary or estate, the beneficiary or
estate shall comply with the provisions of Section 9(b) and Section
11(e).
Notwithstanding
the due date of any post-employment payments, any amounts or benefits due
following an Executive’s employment termination under this Agreement (other than
Accrued Amounts) shall not be due until after the expiration of any revocation
period applicable to the General Release without the Executive having revoked
such General Release. If the Executive fails to return an executed
General Release to the Company within such 21-day period (42-day period in the
case of an employment termination due to Disability), or the Executive
subsequently revokes such timely release, the Company shall not have any
obligation to pay any amounts or benefits under Section 8 of this
Agreement. The Executive shall provide the General Release in the
same manner as written notice is provided to the Company under Section 13
below.
Nevertheless
(and regardless of whether the General Release has been executed by the
Executive), upon any termination of Executive’s employment, Executive shall be
entitled to receive any Accrued Amounts, payable within thirty (30) days after
the date of termination of employment or in accordance with the applicable plan,
program or policy. In the event that the Executive dies before all
payments pursuant to this Section 9 have been paid, all remaining payments shall
be made to the beneficiary specifically designated by the Executive in writing
prior to the Executive’s death, or, if no such beneficiary was designated (or
the Company is unable in good faith to determine the beneficiary designated), to
the Executive’s personal representative or estate.
10. SECTION
4999 EXCISE TAX. The Company shall provide the Executive with a
“Gross-Up Payment”, as defined in the Change in Control Agreement between the
Company and the Executive effective as of January 1, 2007, in the event that any
payment made under this Agreement is subject to excise tax under Section 4999 of
the Code and the Change in Control Agreement does not apply to such
payment.
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11. POST-EMPLOYMENT
OBLIGATIONS
(a) CONFIDENTIALITY. The
Executive agrees that the Executive shall not, directly or indirectly, use, make
available, sell, disclose or otherwise communicate to any person, other than in
the course of the Executive’s employment and for the benefit of the Company,
either during the period of the Executive’s employment 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 the Executive during the
Executive’s employment by the Company. The foregoing shall not apply
to information that (i) was known to the public prior to its disclosure to the
Executive; (ii) becomes known to the public subsequent to disclosure to the
Executive through no wrongful act of the Executive or any representative of the
Executive; or (iii) the Executive is required to disclose by applicable law,
regulation or legal process (provided that the Executive provides the Company
with prior notice of the contemplated disclosure and reasonably cooperates with
the Company at its expense in seeking a protective order or other appropriate
protection of such information). Notwithstanding clauses (i) and (ii)
of the preceding sentence, the Executive’s obligation to maintain such disclosed
information in confidence shall not terminate where only portions of the
information are in the public domain.
(b) NON-SOLICITATION. In
the event that the Executive receives severance benefits under Section 8(d) of
this Agreement, the Executive agrees that for the two (2) year period following
the date of termination the Executive will not, directly or indirectly,
individually or on behalf of any other person, firm, corporation or other
entity, knowingly solicit, aid or induce any managerial level employee of the
Company or any of its subsidiaries or affiliates to leave such employment in
order to accept employment with or render services to or with any other person,
firm, corporation or other entity unaffiliated with the Company or knowingly
take any action to materially assist or aid any other person, firm, corporation
or other entity in identifying or hiring any such employee (provided, that the
foregoing shall not be violated by general advertising not targeted at Company
employees nor by serving as a reference for an employee with regard to an entity
with which the Executive is not affiliated). For the avoidance of
doubt, if a managerial level employee on his or her own initiative contacts the
Executive for the primary purpose of securing alternative employment, any action
taken by the Executive thereafter shall not be deemed a breach of this Section
11(b).
(c) NON-COMPETITION. The
Executive acknowledges that the Executive performs services of a unique nature
for the Company that are irreplaceable, and that the Executive’s performance of
such services to a competing business will result in irreparable harm to the
Company. Accordingly, in the event that the Executive receives
severance benefits under Section 8(d) of this Agreement, the Executive agrees
that for a period of two (2) years following the date of termination, but not
later than the Executive’s Retirement Eligibility Date, the Executive will not,
directly or indirectly, become connected with, promote the interest of, or
engage in any other business or activity competing with the business of the
Company within the geographical area in which the business of the Company is
conducted.
(d) NON-DISPARAGEMENT. Each
of the Executive and the Company (for purposes hereof, “the Company” shall mean
only (i) the Company by press release or otherwise and (ii) the executive
officers and directors thereof and not any other employees) agrees not to make
any public statements that disparage the other party, or in the case of the
Company, its respective affiliates, officers, directors, products or
services. Notwithstanding the foregoing, statements made in the
course of sworn testimony in administrative, judicial or arbitral proceedings
(including, without limitation, depositions in connection with such proceedings)
or otherwise as required by law shall not be subject to this Section
11(d).
11
(e) RETURN
OF COMPANY PROPERTY AND RECORDS. The Executive agrees that upon
termination of the Executive’s employment, for any cause whatsoever, the
Executive will surrender to the Company in good condition (reasonable wear and
tear excepted) all property and equipment belonging to the Company and all
records kept by the Executive containing the names, addresses or any other
information with regard to customers or customer contacts of the Company, or
concerning any proprietary or confidential information of the Company or any
operational, financial or other documents given to the Executive during the
Executive’s employment with the Company.
(f) COOPERATION. The
Executive agrees that, following termination of the Executive’s employment for
any reason, the Executive shall upon reasonable advance notice, and to the
extent it does not interfere with previously scheduled travel plans and does not
unreasonably interfere with other business activities or employment obligations,
assist and cooperate with the Company with regard to any matter or project in
which the Executive was involved during the Executive’s employment, including
any litigation. The Company shall compensate the Executive for any
lost wages (or, if the Executive is not then employed, provide reasonable
compensation as determined by the Compensation Committee) and expenses
associated with such cooperation and assistance.
(g) ASSIGNMENT
OF INVENTIONS. The Executive will promptly communicate and disclose
in writing to the Company all inventions and developments including software,
whether patentable or not, as well as patents and patent applications
(hereinafter collectively called “Inventions”), made, conceived, developed, or
purchased by the Executive, or under which the Executive acquires the right to
grant licenses or to become licensed, alone or jointly with others, which have
arisen or jointly with others, which have arisen or which arise out of the
Executive’s employment with the Company, or relate to any matters directly
pertaining to, the business of the Company or any of its
subsidiaries. Included herein as if developed during the employment
period is any specialized equipment and software developed for use in the
business of the Company. All of the Executive’s right, title and
interest in, to, and under all such Inventions, licenses, and right to grant
licenses shall be the sole property of the Company. As to all such
Inventions, the Executive will, upon request of the Company execute all
documents which the Company deems necessary or proper to enable it to establish
title to such Inventions or other rights, and to enable it to file and prosecute
applications for letters patent of the United States and any foreign country;
and do all things (including the giving of evidence in suits and other
proceedings) which the Company deems necessary or proper to obtain, maintain, or
assert patents for any and all such Inventions or to assert its rights in any
Inventions not patented.
(h) EQUITABLE
RELIEF AND OTHER REMEDIES. The parties acknowledge and agree that the
other party’s remedies at law for a breach or threatened breach of any of the
provisions of this Section would be inadequate and, in recognition of this fact,
the parties agree that, in the event of such a breach or threatened breach, in
addition to any remedies at law, the other party, without posting any bond,
shall be entitled to obtain equitable relief in the form of specific
performance, temporary restraining order, a temporary or permanent injunction or
any other equitable remedy which may then be available.
(i) REFORMATION. If
it is determined by a court of competent jurisdiction in any state that any
restriction in this Section 11 is excessive in duration or scope or is
unreasonable or unenforceable under the laws of that state, it is the intention
of the parties that such restriction may be modified or amended by the court to
render it enforceable to the maximum extent permitted by the law of that
state.
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(j) SURVIVAL
OF PROVISIONS. The obligations contained in this Section 11 shall
survive the termination or expiration of the Executive’s employment with the
Company and shall be fully enforceable thereafter.
12. NO
ASSIGNMENT.
(a) This
Agreement is personal to each of the parties hereto. Except as
provided in Section 12(b) below, no party may assign or delegate any rights or
obligations hereunder without first obtaining the written consent of the other
party hereto.
(b) The
Company may assign this 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
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 the Executive.
13. NOTICE. For
the purpose of this Agreement, notices and all other communications provided for
in this Agreement shall be in writing and shall be deemed to have been duly
given (a) on the date of delivery if delivered by hand, (b) on the date of
transmission, if delivered by confirmed facsimile, (c) on the first business day
following the date of deposit if delivered by guaranteed overnight delivery
service, or (d) on the fourth business day following the date delivered or
mailed by United States registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
If to the
Executive: at the address (or to the facsimile number) shown on the records of
the Company
If to the
Company:
Kaman
Corporation
0000 Xxxx
Xxxxx Xxxxxx, X.X. Xxx 0
Xxxxxxxxxx,
XX 00000
Attention:
Chief Legal Officer
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.
14. SECTION
HEADINGS; INCONSISTENCY. The section headings used in this Agreement
are included solely for convenience and shall not affect, or be used in
connection with, the interpretation of this Agreement. Except as
provided in the last sentence of Section 15 hereof, if there is any
inconsistency between this 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 Agreement shall control over such Other
Provision.
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15. PRIOR
AGREEMENTS. This Agreement supersedes and replaces any and
all prior employment agreements (collectively, the “Prior
Agreements”) between the Company and the Executive. By signing this
Agreement, the Executive acknowledges that the Prior Agreements are terminated
and cancelled, and releases and discharges 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
Agreement effective immediately shall supersede and be in lieu of the Prior
Agreements. It is specifically acknowledged by the Company that this
Agreement does not supersede the Change in Control Agreement or any existing
employee benefits as described in Section 6 above or otherwise provided by the
Company or its affiliates.
16. SEVERABILITY. The
provisions of this 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.
17. COUNTERPARTS. This
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.
18. ARBITRATION. Any
dispute or controversy arising under or in connection with this Agreement, other
than injunctive relief under Section 11(h) hereof or damages for breach of
Section 11, 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 the Executive, 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.
19. MISCELLANEOUS. No
provision of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing and signed by the
Executive and 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 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 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
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.
20. PAYMENT
OF COMPENSATION. The parties intend that the benefits and payments
provided under this Agreement shall be exempt from, or comply with, the
requirements of Section 409A of the Code. Notwithstanding the
foregoing, the Company shall in no event be obligated to indemnify the Executive
for any taxes or interest that may be assessed by the IRS pursuant to Section
409A of the Code.
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21. MITIGATION
OF DAMAGES. In no event shall the Executive be obliged to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement, nor shall the
amount of any payment hereunder be reduced by any compensation earned by the
Executive as a result of employment by another employer, except as set forth in
this Agreement.
22. REPRESENTATIONS. The
Executive represents and warrants to the Company that the Executive has the
legal right to enter into this Agreement and to perform all of the obligations
on the Executive’s part to be performed hereunder in accordance with its terms
and that the Executive is not a party to any agreement or understanding, written
or oral, which could prevent the Executive from entering into this Agreement or
performing all of the Executive’s obligations hereunder.
23. WITHHOLDING. The
Company may withhold from any and all amounts payable under this Agreement such
federal, state and local taxes as may be required to be withheld pursuant to any
applicable law or regulation.
24. SURVIVAL. The
respective obligations of, and benefits afforded to, the Company and Executive
which by their express terms or clear intent survive termination of Executive’s
employment with the Company, including, without limitation, the provisions of
Sections 5 and 8 through 25, inclusive of this Agreement, will survive
termination of Executive’s employment with the Company, and will remain in full
force and effect according to their terms.
25. AGREEMENT
OF THE PARTIES. The language used in this Agreement will be deemed to
be the language chosen by the parties hereto to express their mutual intent, and
no rule of strict construction will be applied against any party
hereto. Neither Executive nor the Company shall be entitled to any
presumption in connection with any determination made hereunder in connection
with any arbitration, judicial or administrative proceeding relating to or
arising under this Agreement.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement.
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KAMAN
CORPORATION
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By:
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XXXX
X. XXXXXXX
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Its:
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PRESIDENT AND CHIEF
EXECUTIVE OFFICER
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XXXXXX
X. XXXXX
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APPENDIX
A
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. Xxxxx (“Executive”), the Executive’s
heirs, executors, administrators, successors and assigns (collectively referred
to throughout this Agreement as “Employee”) agree:
1. Last Day of
Employment. Executive’s last day of employment with Employer
is ______________. In addition, effective as of DATE, Executive
resigns from the Executive’s positions as Senior Vice President and Chief
Information Officer of Employer and will not be eligible for any benefits or
compensation after ________, including payments under the Executive’s Change in
Control Agreement, other than as specifically provided in Sections 6 and 8 of
the Executive Employment Agreement between Employer and Executive effective as
of January 1, 2007 (the “Employment Agreement”). Executive further
acknowledges and agrees that, after DATE, the Executive will not represent the
Executive as being a director, employee, officer, trustee, agent or
representative of Employer for any purpose. In addition, effective as
of DATE, Executive resigns from all offices, directorships, trusteeships,
committee memberships and fiduciary capacities held with, or on behalf of,
Employer or any benefit plans of Employer. These resignations will
become irrevocable as set forth in Section 3 below.
2. Consideration. The
parties acknowledge that this Agreement and General Release is being executed in
accordance with Section 9 of the Employment Agreement.
3. Revocation. Executive
may revoke this Agreement and General Release for a period of seven (7) calendar
days following the day Executive executes this Agreement and General
Release. Any revocation within this period must be submitted, in
writing, to Employer and state, “I hereby revoke my acceptance of our Agreement
and General Release.” The revocation must be personally delivered to
Employer’s Chief Legal Officer, or his/her designee, or mailed to Kaman
Corporation, 0000 Xxxx Xxxxx Xxxxxx, X.X. Xxx 0, Xxxxxxxxxx, XX 00000,
Attention: Chief Legal Officer, 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 Employment Agreement, Employee knowingly and
voluntarily releases and forever discharges Employer from any and all claims,
causes of action, demands, fees and liabilities of any kind whatsoever, whether
known and unknown, against Employer, Employee has, has ever had or may have as
of the date of execution of this Agreement and General Release, including, but
not limited to, any alleged violation of:
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Title
VII of the Civil Rights Act of 1964, as
amended;
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The
Civil Rights Act of 1991;
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Sections
1981 through 1988 of Title 42 of the United States Code, as
amended;
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The
Employee Retirement Income Security Act of 1974, as
amended;
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The
Immigration Reform and Control Act, as
amended;
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The
Americans with Disabilities Act of 1990, as
amended;
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The
Age Discrimination in Employment Act of 1967, as
amended;
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The
Older Workers Benefit Protection Act of
1990;
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The
Worker Adjustment and Retraining Notification Act, as
amended;
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The
Occupational Safety and Health Act, as
amended;
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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.
18
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
Sections 6 and 8 of the Employment 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 Employment
Agreement which are intended to survive termination of the Employment Agreement,
including but not limited to those contained in Section 11 thereof, shall
survive and continue in full force and effect. Employee acknowledges
Executive has not relied on any representations, promises, or agreements of any
kind made to Executive in connection with Executive’s decision to accept this
Agreement and General Release.
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EMPLOYEE
HAS BEEN ADVISED THAT EXECUTIVE HAS UP TO TWENTY-ONE (21) CALENDAR DAYS TO
REVIEW THIS AGREEMENT AND GENERAL RELEASE AND HAS BEEN ADVISED IN WRITING TO
CONSULT WITH AN ATTORNEY PRIOR TO EXECUTION OF THIS AGREEMENT AND GENERAL
RELEASE.
EMPLOYEE
AGREES ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS AGREEMENT AND
GENERAL RELEASE DO NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL TWENTY-ONE
(21) CALENDAR DAY CONSIDERATION PERIOD.
HAVING
ELECTED TO EXECUTE THIS AGREEMENT AND GENERAL RELEASE, TO FULFILL THE PROMISES
SET FORTH HEREIN, AND TO RECEIVE THE SUMS AND BENEFITS SET FORTH IN THE
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:
