EXHIBIT 10.28
EMPLOYMENT AGREEMENT
THIS AGREEMENT dated this 1st day of July, 1999 by and
between TRIUMPH GROUP, INC., a Delaware corporation (the "Company"), and
Xxxxx X. Kitchen "Executive").
WITNESSETH:
WHEREAS, Executive has served as Vice President of the Company since
1999; and
WHEREAS, the Company wishes to assure itself of Executive's continued
employment by the Company during the period set forth herein; and
WHEREAS, Executive is willing to continue to serve the Company during
such period upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the Company and Executive hereby agree as
follows:
1. TERMS OF EMPLOYMENT. The Company hereby agrees to employ
Executive, and Executive agrees to be employed by the Company, for a term
commencing on July 1, 1999 (the "Effective Date") and ending on June 30, 2001
(such term being hereinafter referred to as the "Period of Employment"),
subject to earlier termination as provided in Section 6 hereof.
1
2. DUTIES AND RESPONSIBILITIES. During the Period of
Employment, Executive shall serve as Vice President of the Company and devote
substantially all of his time and effort during normal business hours
(reasonable sick leave and vacations excepted) to the business and affairs of
the Company. The Executive shall report to the President and Chief Executive
Officer and the Board of Directors of the Company, and shall have such
duties, responsibilities and authority as are delegated to him by the Board
of Directors. The Executive's primary place of employment during the Period
of Employment shall be Phoenix, Arizona, unless changed with the Executive's
consent.
3. SALARY. During the Period of Employment, the Company
shall pay the Executive, in periodic installments on the same basis as other
senior salaried executives of the Company, a base salary of $150,000 per
annum (the "Base Salary"), subject to such increases during the Period of
Employment as shall be approved by the Board of Directors of the Company
(which increases, when so approved, to thereafter constitute Executive's Base
Salary for purposes of this Agreement).
4. INCENTIVE COMPENSATION. In addition to the Base Salary
provided in Section 3 hereof, the Company shall pay to Executive, at such
times as such payments are made to other senior salaried executives of the
Company and its subsidiaries (hereinafter referred to as the "Group"), such
incentive payments as shall be approved from time to time by the Board of
Directors of the Company or shall be due Executive pursuant to the terms of
incentive compensation plans approved by the Board of Directors of the
Company, subject to such deferral
2
arrangements as are provided in the Group's Supplemental Executive Retirement
Plan effective April 1, 1994 (the "Supplemental Retirement Plan") or
otherwise approved by the Board of Directors. The Executive's objectives
under such plans shall be set forth in writing annually by the Board of
Directors or a duly authorized committee thereof.
5. ADDITIONAL BENEFITS AND PERQUISITES.
(a) EMPLOYEE BENEFIT PLANS. During the Period of
Employment, Executive shall be entitled to participate on substantially the
same basis as other senior salaried executives of the Group in all employee
benefit plans maintained in effect by the Group from time to time during the
Period of Employment (all such plans hereinafter referred to as "Employee
Benefit Plans").
(b) PERQUISITES. During the Period of Employment,
Executive shall be entitled to such perquisites and fringe benefits as are
generally made available to the senior salaried executives of the Group.
(c) LIFE AND DISABILITY INSURANCE. During the
Period of Employment, Executive shall be entitled to participate in the group
life and disability insurance plan made available to the senior salaried
executives of the Group.
(d) VACATION. During the Period of Employment the
Executive shall be entitled to four (4) weeks of vacation during each
calendar year.
6. EARLY TERMINATION.
3
(a) DISABILITY. The Company shall have the right to
terminate Executive's employment during the Period of Employment upon not
less than thirty (30) days prior written notice to Executive or his personal
representative if, because of mental or physical disability, Executive shall
have been incapable, with reasonable accommodation, of satisfactorily
performing his duties under Section 2 hereof for a continuous period of one
hundred twenty (120) days or for a total period of two hundred ten (210) days
in any three hundred sixty (360) day-period prior to the date of such notice.
(b) DEATH. In the event of Executive's death
during the Period of Employment, this Agreement shall automatically terminate
as of the date of such death.
(c) FOR CAUSE. Notwithstanding any other
provisions of this Agreement, the Company may terminate Executive's
employment at any time during the Period of Employment for Cause, as herein
defined, upon written notice to the Executive. As used herein, "Cause" shall
mean the doing of any wilful act which is, in the judgment of the Board of
Directors, materially adverse to the best interests of the Company or which
constitutes common law fraud or a felony.
(d) WITHOUT CAUSE. The Company may terminate
Executive's employment at any time during the Period of Employment without
Cause, as defined in subparagraph (c) above, upon written notice to the
Executive. The decision to terminate Executive without Cause can be taken
only at a duly called meeting of the Board of Directors of the Company at
which Executive is present and afforded a full opportunity to be heard.
4
(e) GOOD REASON. Following a Control Transaction,
as herein defined, Executive may terminate this Agreement for Good Reason, as
herein defined. A "Control Transaction" shall be: (i) a reorganization,
merger or consolidation of the Company unless (A) the Company or a parent or
subsidiary of the Company is the surviving or resulting corporation or (B)
the shareholders of the Company immediately before such transaction own a
majority of the outstanding voting stock (after giving effect to the
conversion of all shares of Class D Common Stock of the Company) in the
surviving or resulting corporation or a parent thereof following the
transaction; (ii) the sale by the Company of all or substantially all of its
assets to a purchaser which is not a member of the Group immediately before
such sale; or (iii) any transaction or series of transactions which results
in the acquisition of a majority of the outstanding voting shares (after
giving effect to the conversion of all of the outstanding Class D Common
Stock of the Company) of the Company by a purchaser or purchasers (A) who are
not currently shareholders of the Company and who acquired such voting shares
in a transaction or transactions not involving an offering registered under
the Securities Act of 1933, as amended; (B) which was not a subsidiary of the
Company immediately before such acquisition; or (C) a majority of whose
outstanding voting shares, immediately following the acquisition, are owned
by persons who were not shareholders of the Company immediately before the
acquisition. "Good Reason," as use herein, shall mean (i) a determination by
Executive in good faith that due to acts of the Company occurring after the
Control Transaction he is unable effectively to carry
5
out his duties and responsibilities as of the time of the Control
Transaction; (ii) a material reduction in the duties and responsibilities
assigned to Executive pursuant to Section 2 hereof following the Control
Transaction; (iii) the transfer following the Control Transaction of
Executive's principal place of business to a location more than fifty (50)
miles from the location as of the time of the Control Transaction; or (iv)
the failure or refusal of the Successor, as defined in Section 9 hereof, to
assume all duties and obligations of the Company under this Agreement, as
contemplated by Section 9.
7. EFFECTS OF EARLY TERMINATION.
(a) In the event of the Company's termination of
Executive's employment during the Period of Employment as a result of his
disability, Executive shall be entitled to receive his Base Salary for the
month in which such termination becomes effective and for a period of six (6)
months thereafter, without prejudice to any other payments or disability
benefits due Executive under any Employee Benefit Plan as a result of
Executive's disability.
(b) In the event of Executive's death, Executive's
legal representative shall be entitled to receive Executive's Base Salary
through the end of the sixth month following the month in which Executive's
death occurred, without prejudice to any other payments or benefits due under
any Employee Benefit Plan as a result of Executive's death.
(c) In the event of the Company's termination of
Executive's employment during the Period of Employment for Cause, as defined
in Section 6(c), the
6
Company shall have no obligation to pay Executive any compensation or
benefits other than (i) his then current Base Salary to the date of
termination and (ii) payments or benefits due under any Employee Benefits
Plans upon or following such termination.
(d) In the event the Company terminates Executive's
employment during the Period of Employment without Cause or Executive
terminates his employment during such period for Good Reason, as defined in
Section 6(d), the Company shall pay Executive the following amounts:
(i) Executive's Base Salary for the balance
of the month in which such termination occurs, plus credit
for any vacation earned but not taken prior to the date of
termination;
(ii) as severance payments, commencing on
the last day of the month in which the termination occurs
and on the last day of each month thereafter, an amount
equal to one-twelfth of the Executive's then current Base
Salary for a period of twelve (12) months.
(iii) any payments due under any Employee
Benefits Plans upon or following such termination.
(e) Under no circumstances shall Executive, upon
termination of his employment hereunder, be entitled to receive any incentive
compensation payments with respect to the fiscal year in which an early
termination occurs. Nothing herein, however, shall affect
7
Executive's right to receive any previously earned but unpaid deferred
compensation payments to which Executive may be entitled under the
Supplemental Executive Retirement Plan.
(f) Except as provided in Section 7(e), during the
period Executive continues to receive payment of his Base Salary following
the termination of the Executive's employment, Executive, his dependents,
beneficiaries and estate shall continue to be entitled to all benefits under
all Employee Benefit Plans as if Executive were still employed during such
period under this Agreement. Executive, to the extent that he has at the time
of termination sufficient service credits or has otherwise satisfied
applicable eligibility requirements under the terms of the Employee Benefit
Plans shall be deemed to have retired from the Company as of such time, and
shall be eligible for any and all benefits and rights provided to retirees at
a comparable executive level from the Company or the Group under all Employee
Benefits Plans.
(g) The severance compensation and benefits
provided in this Section 7 shall constitute Executive's sole and exclusive
right to severance payments and benefits upon termination of Executive's
employment and no other severance compensation of any kind, nature and amount
shall be payable to Executive in connection with any termination during the
Period of Employment.
8. TERMINATION NOTICE. Any termination by the Company or by
Executive hereunder shall be communicated by written Notice of Termination to
the other party hereto. For purposes of this Agreement, a "Notice of
Termination" shall mean a written notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
8
reasonable detail all facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated.
Any such notice shall be by registered or certified mail and mailed to
Executive at the last address he has filed in writing with the Company, or,
in the case of the Company, to the Secretary at Four Glenhardie Corporate
Center, 0000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxx, XX 00000-0000 or such other
address to which the Company's principal executive offices are removed during
the Period of Employment.
9. SUCCESSORS/BINDING AGREEMENT. The Company shall require
any successor or surviving entity in any Control Transaction ("Successor"),
by agreement in form and substance satisfactory to Executive, expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform if no such succession
had taken place. Regardless of whether such agreement is executed, this
Agreement shall be binding upon any Successor in accordance with the
operation of law and such Successor shall be deemed the "Company" for
purposes of this Agreement. This Agreement shall inure to the benefit of and
be enforceable by Executive and his personal or legal representative,
executors, administrators, successors, heirs, distributees, devisees and
legatees.
10. SEVERABILITY. In the event any provision or portion of
this Agreement shall be determined to be invalid or unenforceable for any
reason, the remaining provisions of this Agreement shall remain in full force
and effect to the fullest extent permitted by law.
11. AMENDMENT/WAIVER. This Agreement may not be amended,
modified, waived or canceled except by a writing signed by each party hereto.
No waiver by either party
9
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 any prior or subsequent time.
12. ENTIRE AGREEMENT. This Agreement constitutes the entire
Agreement between the parties relative to the employment of the Executive by
the Company during the Period of Employment. Any previous agreement among the
parties not mentioned in this Agreement is superseded by this Agreement.
13. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
TRIUMPH GROUP, INC.
By: /s/ Xxxxxxx X. III
----------------------
Title: President
-------------------
Executive: /s/ Xxxxx X. Kitchen
--------------------
10
