AMENDED
AND RESTATED
EMPLOYMENT
AGREEMENT
THIS
AMENDED AND RESTATED EMPLOYMENT AGREEMENT is entered into as of this 26th day of
February, 2008, by and between Textron Inc. (the “Company”), a Delaware
corporation having its principal office at 40 Westminster Street, Providence,
Rhode Island 02903 and Kenneth C. Bohlen (the “Executive”).
W I T N E
S S E T H:
WHEREAS,
the Company desires to employ the Executive and the Executive is willing to be
employed by the Company; and
WHEREAS,
the Company and the Executive desire to set forth the terms and conditions of
such employment.
NOW
THEREFORE, in consideration of the foregoing and of the mutual covenants and
agreements of the parties set forth in this Agreement, and of other good and
valuable consideration, the adequacy and receipt of which is acknowledged, the
parties hereto agree as follows:
The
Company hereby agrees to employ the Executive and the Executive hereby accepts
employment, in accordance with the terms and conditions set forth herein, for a
term (the “Employment Term”) commencing on July 18, 2000 (the “Effective Date”)
and terminating, unless otherwise terminated earlier in accordance with Section
5 hereof, on the third anniversary of the Effective Date, provided that the
Employment Term shall be automatically extended, subject to earlier termination
as provided in Section 5 hereof, for successive additional one (1) year periods
(the “Additional Terms”), unless, at least ninety (90) days prior to the end of
the then Additional Term, the Company or the Executive has notified the other in
writing that the Employment Term shall terminate at the end of the then current
term.
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2.
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Position
and Responsibilities
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During
the Employment Term, the Executive shall serve as the Executive Vice President
and Chief Innovation Officer of the Company or in such higher capacity as agreed
by the Company and the Executive. The Executive shall report
exclusively to the Chief Executive Officer and the Board of Directors of the
Company (the “Board”). The Executive shall, to the extent appointed or elected,
serve on the Board as a director and as a member of any committee of the Board,
in each case, without additional compensation. The Executive shall, to the
extent appointed or elected, serve as a director or as a member of any committee
of the board (or the equivalent bodies in a non-corporate subsidiary or
affiliate) of any of the Company’s subsidiaries or affiliates and as an officer
or employee (in a capacity commensurate with his position with the Company) of
any such subsidiaries or affiliates, in all cases, without additional
compensation or benefits and any compensation paid to the Executive, or benefits
provided to the Executive, in such capacities shall be a credit with regard to
the amounts due hereunder from the Company. The Executive shall have duties,
authorities and responsibilities generally commensurate with the
duties, authorities and responsibilities of persons in similar capacities
in similarly sized companies, subject to the By-laws of the Company the
organizational structure of the Company. The Executive shall devote
substantially all of his business time, attention and energies to the
performance of his duties hereunder, provided the foregoing will not prevent the
Executive from participating in charitable, community or industry affairs, from
managing his and his family’s personal passive investments, and (with the
consent of the Chief Executive Officer or the Organization and Compensation
Committee (or its successor) of the Board (the “O&C Committee”), which
consent will not be unreasonably withheld, conditioned or delayed) serving on
the board of directors of other companies, provided that these activities do not
materially interfere with the performance of his duties hereunder or create a
potential business conflict or the appearance thereof.
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3.
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Compensation
and Benefits
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During
the Employment Term, the Company shall pay and provide the Executive the
following:
3.1
Base
Salary. The Company shall pay the Executive an initial base salary
(the “Base Salary”) at a rate of $380,000. Base Salary shall be paid to the
Executive in accordance with the Company’s normal payroll practices for
executives. Base Salary shall be reviewed at least annually by the O&C
Committee (or as otherwise designated by the Board) to ascertain whether, in the
judgment of the reviewing committee, such Base Salary should be increased. If so
increased, Base Salary shall not be thereafter decreased and shall thereafter,
as increased, be the Base Salary hereunder.
3.2
Annual
Bonus. The Company shall provide the Executive with the opportunity to earn an
annual cash bonus under the Company’s current annual incentive compensation plan
for executives or a replacement plan therefor at a level commensurate with his
position, provided that the minimum annual target award payable upon the
achievement of reasonably attainable objective performance goals shall be at
least 55% of Base Salary.
3.3
Long-Term
Incentives. The Company shall provide the Executive the opportunity to earn
long-term incentive awards under the current equity and cash based plans and
programs or replacements therefore; provided, however, that unless replaced with
Executive’s written consent, Executive shall be entitled to stock
options and performance share units as previously granted.
3.4
Employee
Benefits. The Executive shall, to the extent eligible, be entitled to
participate at a level commensurate with his position in all employee benefit
welfare and retirement plans and programs, as well as equity plans, generally
provided by the Company to its senior executives in accordance with the terms
thereof as in effect from time to time; provided, however, that unless replaced
with Executive’s written consent, Executive shall be entitled to the “Special
Pension Arrangement” attached as Exhibit B.
3.5
Vacation. The
Executive shall be entitled to paid vacation in accordance with the standard
written policies of the Company with regard to vacations of executives, but in
no event less than four (4) weeks per calendar year.
3.6
Perquisites. The
Executive may use the Company’s aircraft for personal travel, including travel
in which the Executive is accompanied by family or other persons traveling for
non-business reasons. The Executive shall not be required to pay the
cost of personal travel on Company aircraft by the Executive and members of the
Executive’s immediate family (although the cost shall be imputed as income to
the Executive to the extent required by applicable tax laws). The
Executive shall pay the cost (as reasonably determined by the Company) of any
other person who travels with the Executive for non-business
reasons. To the extent legally permissible, the Company shall not
treat perquisites provided to the Executive as income to the
Executive.
3.7
Right to
Change Plans. The Company shall not be obligated by reason of this
Section 3 to institute, maintain, or refrain from changing, amending, or
discontinuing any benefit plan, program, or perquisite, so long as such changes
are similarly applicable to executive employees generally.
Upon
submission of appropriate documentation, in accordance with its policies in
effect from time to time, the Company shall pay, or reimburse, the Executive for
all ordinary and necessary expenses, in a reasonable amount, which the Executive
incurs during the Employment Term in performing his duties under this Agreement
including, but not limited to, travel, entertainment, and professional dues and
subscriptions. To the extent that any reimbursement under this
paragraph would be includable in the Executive’s gross income for federal income
tax purposes, the Executive shall submit the necessary documentation and shall
receive the reimbursement no later than March 15 of the year following the year
in which the expense is incurred.
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5.
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Termination
of Employment
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The
Executive’s employment with the Company (including but not limited to any
subsidiary or affiliate or the Company) and the Employment Term shall terminate
upon the occurrence of the first of the following events:
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(a)
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Automatically
on the date of the Executive’s
death.
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(b)
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Except
as provided in the following sentence, upon thirty (30) days written
notice by the Company to the Executive of a termination due to Disability,
provided such notice is delivered during the period of
Disability. If the Executive’s Disability results in a
“separation from service” within the meaning of Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”) (for example,
because there is no reasonable expectation that the Executive will return
to perform services for the Company, or because the permitted time period
under Section 409A for a bona fide leave of absence expires), and if the
Employment Term has not terminated pursuant to the preceding sentence on
or before the date of the Executive’s separation from service, the
Employment Term shall terminate automatically when the separation from
service occurs, without any requirement for written notice
by
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the
Company. The term “Disability” shall mean, for purposes of this
Agreement, the inability of the Executive, due to any medically
determinable physical or mental impairment, to engage in the performance
of his material duties of employment with the Company as contemplated by
Section 2 herein for a period of more than one hundred eighty (180)
consecutive days or for a period that is reasonably expected to exist for
a period of more than one hundred eighty (180) consecutive days, provided
that interim returns to work of less than ten (10) consecutive business
days in duration shall not be deemed to interfere with a determination of
consecutive absent days if the reason for absence before and after the
interim return are the same. The existence or non-existence of
a Disability shall be determined by a physician agreed upon in good faith
by the Executive (or his representatives) and the Company. It is expressly
understood that the Disability of the Executive for a period of one
hundred eighty (180) consecutive days or less shall not constitute a
failure by him to perform his duties hereunder and shall not be deemed a
breach or default; and, as long as the Executive’s employment has not been
terminated pursuant to this paragraph, the Executive shall receive full
compensation for any such period of Disability or for any other temporary
illness or incapacity during the term of this
Agreement.
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(c)
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Immediately
upon written notice by the Company to the Executive of a termination due
to his retirement at or after the Executive’s attainment of age sixty-five
(65).
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(d)
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Immediately
upon written notice by the Company to the Executive of a termination for
Cause, provided such notice is given within ninety (90) days after the
discovery by the Board or the Chief Executive Officer of the Cause event
and has been approved by the O&C Committee at a meeting at which the
Executive and his counsel had the right to appear and address such meeting
after receiving at least five (5) business days written notice of the
meeting and reasonable detail of the facts and circumstances claimed to
provide a basis for such termination. The term “Cause” shall mean, for
purposes of this Agreement: (i) an act or acts of willful
misrepresentation, fraud or willful dishonesty (other than good faith
expense account disputes) by the Executive which in any case is intended
to result in his or another person or entity’s substantial personal
enrichment at the expense of the Company; (ii) any willful misconduct by
the Executive with regard to the Company, its business, assets or
employees that has, or was intended to have, a material adverse impact
(economic or otherwise) on the Company; (iii) any material, willful and
knowing violation by the Executive of (x) the Company’s Business Conduct
Guidelines, or (y) any of his fiduciary duties to the Company which in
either case has, or was intended to have, a material adverse impact
(economic or otherwise) on the Company; (iv) the willful or reckless
behavior of the Executive with regard to a matter of a material nature
which has a material adverse impact (economic or otherwise) on the
Company; (v) the Executive’s willful failure to attempt to perform his
duties under Section 2 hereof or his willful failure to attempt to follow
the legal written direction of the Board,
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which
in either case is not remedied within ten (10) days after receipt by the
Executive of a written notice from the Company specifying the details
thereof; (vi) the Executive’s conviction of, or pleading nolo contendere
or guilty to, a felony (other than (x) a traffic infraction or (y)
vicarious liability solely as a result of his position provided the
Executive did not have actual knowledge of the actions or inactions
creating the violation of the law or the Executive relied in good faith on
the advice of counsel with regard to the legality of such action or
inaction (or the advice of other specifically qualified professionals as
to the appropriate or proper action or inaction to take with regard to
matters which are not matters of legal interpretation)); or (vii) any
other material breach by the Executive of this Agreement that is not cured
by the Executive within twenty (20) days after receipt by the Executive of
a written notice from the Company of such breach specifying the details
thereof. No action or inaction should be deemed willful if not
demonstrably willful and if taken or not taken by the Executive in good
faith as not being adverse to the best interests of the Company. Reference
in this paragraph (d) to the Company shall also include direct and
indirect subsidiaries of the Company, and materiality and material adverse
impact shall be measured based on the action or inaction and the impact
upon, and not the size of, the Company taken as a whole, provided that
after a Change in Control, the size of the Company, taken as a whole,
shall be a relevant factor in determining materiality and material adverse
impact.
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(e)
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Upon
written notice by the Company to the Executive of an involuntary
termination without Cause. A notice by the Company of non-renewal of the
Employment Term pursuant to Section 1 above shall be deemed an involuntary
termination of the Executive by the Company without Cause as of the end of
the Employment Term, but the Executive may terminate at any time after the
receipt of such notice and shall be treated as if he was terminated
without Cause as of his termination
date.
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(f)
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Upon
twenty (20) days written notice by the Executive to the Company of a
termination for Good Reason (which notice sets forth in reasonable detail
the facts and circumstances claimed to provide a basis for such
termination) unless the Good Reason event is cured within such twenty (20)
day period. The term “Good Reason” shall mean, for purposes of this
Agreement, without the Executive’s express written consent, the occurrence
of any one or more of the following: (i) the assignment to the Executive
of duties materially inconsistent with the Executive’s then authorities,
duties, responsibilities, and status (including offices, titles, and
reporting requirements), or any reduction in the Executive’s then title,
position, reporting lines or a material reduction (other than temporarily
while Disabled or otherwise incapacitated) in his then status,
authorities, duties, or responsibilities or, if then a director of the
Company, failure to be nominated or reelected as a director of the Company
or removal as such; (ii) relocation of the Executive from the principal
office of the Company (excluding reasonable travel on the Company’s
business to an extent substantially consistent with the Executive’s
business obligations) or relocation of the principal office of the Company
to a location which is at least fifty
(50)
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miles
from the Company’s current headquarters, provided, however, if the
Executive at the time of the relocation is not located at the principal
office, such relocation provision shall apply based on his then location
but shall not cover a relocation to the principal office prior to a Change
in Control; (iii) a reduction by the Company in the Executive’s Base
Salary; (iv) a reduction in the Executive’s aggregate level of
participation in any of the Company’s short and/or long-term incentive
compensation plans, or employee benefit or retirement plans, policies,
practices, or arrangements in which the Executive participated as of the
Effective Date, or, after a Change in Control, participated immediately
prior to the Change in Control; (v) the failure of the Company to obtain
and deliver to the Executive a satisfactory written agreement from any
successor to the Company to assume and agree to perform this Agreement; or
(vi) any other material breach by the Company of this
Agreement.
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(g)
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Upon
written notice by the Executive to the Company of the Executive’s
voluntary termination of employment without Good Reason (which the Company
may, in its sole discretion, make effective earlier than the effective
date specified in the Executive’s notice). A notice by the Executive of
non-renewal of the Employment Term pursuant to Section 1 above shall be
deemed a voluntary termination by the Executive without Good Reason as of
the end of the Employment Term.
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To the extent that any payment would be
made or any benefit would be provided under this Agreement as a result of the
Executive’s termination of employment under paragraph (b), (c), (d), (e), (f),
or (g) of this Section 5, the payment or benefit shall be provided only if the
Executive has also incurred a “separation from service” within the meaning of
Section 409A of the Code; and any timing requirements associated with the
payment or benefit (such as, for example, a requirement that a payment be
delayed for six months following the Executive’s termination) shall be applied
in relation to the date on which the “separation from service” occurs for
purposes of Section 409A. The preceding sentence shall apply solely
to determine the timing of payments under the Agreement in compliance with
Section 409A. The Agreement is not intended, and shall not be
construed, to require that the Executive incur a “separation from service”
within the meaning of Section 409A before the Executive or the Company shall
have grounds to terminate the Executive’s employment under paragraph (b), (c),
(d), (e), (f), or (g) of this Section 5.
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6.
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Consequences
of a Termination of Employment
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6.1
Termination
Due to Death or Retirement. If the Employment Term ends on account of the
Executive’s termination due to death pursuant to Section 5(a) above or
retirement pursuant to Section 5(c) above, the Executive (or the Executive’s
surviving spouse, or other beneficiary as so designated by the Executive during
his lifetime, or to the Executive’s estate, as appropriate) shall be entitled,
in lieu of any other payments or benefits, to (i) payment promptly of any unpaid
Base Salary, unpaid annual incentive compensation (for the preceding fiscal
year) and any accrued vacation, (ii) reimbursement for any unreimbursed business
expenses incurred prior to the date of termination, and (iii) any amounts,
benefits or fringes due under any equity, benefit or fringe plan, grant or
program in accordance with the terms of said
plan, grant or program but without duplication (collectively, the “Accrued
Obligations”). The Accrued Obligations described in clauses (i) and
(ii) of the preceding sentence shall be paid on the first regular payroll date
after the Executive’s termination (or, if earlier, within 45 days after the
Executive’s termination).
6.2
Termination
Due to Disability. If the Employment Term ends as a result of Disability
pursuant to Section 5(b) above, the Executive shall be entitled, in lieu of any
other payments or benefits, to any Accrued Obligations.
6.3
Involuntary
Termination by the Company Without Cause or Termination by the Executive for
Good Reason. If the Executive is involuntarily terminated by the Company without
Cause in accordance with Section 5(e) above or the Executive terminates his
employment for Good Reason in accordance with Section 5(f) above, the Executive
shall be entitled, in lieu of any other payments or benefits, subject to Section
7(b) hereof, to any Accrued Obligations and the following:
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(a)
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Payment
in a lump sum of the Prorated Portion (as determined in the next sentence)
of the earned annual incentive compensation award for the fiscal year in
which the Executive’s termination occurs, payable on March 1 after the end
of such fiscal year. “Prorated Portion” shall be determined by multiplying
such amount by a fraction, the numerator of which is the number of days
during the fiscal year of termination that the Executive is employed by
the Company, and the denominator of which is,
365.
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(b)
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An
amount equal to two times the sum of (i) the Executive’s Base Salary and
(ii) the higher of (x) the Executive’s target incentive compensation
established for the fiscal year in which the Executive’s termination
occurs or (y) a multiple thereof equal to the product of such target
amount and the multiple of target earned by the Executive for the prior
fiscal year (whether or not deferred) (the sum of (i) and (ii) being
hereinafter referred to as “Final Annual Compensation”). An
amount equal to one and one half (1½) times the Final Annual Compensation
shall be paid in a lump sum on the first regular payroll date after the
end of the six-month period following the Executive’s
termination. An amount equal to the remaining one half (½)
times Final Annual Compensation shall be calculated as equal monthly
installments payable over a period of two (2) years; provided, however,
that the monthly installments for the first six months following the
Executive’s termination shall be paid in a lump sum, without interest, on
the first regular payroll date after the end of the six-month period, and
the remaining monthly installments shall commence on the first regular
payroll date after the end of the sixth month following the Executive’s
termination and shall be paid for the remainder of the two (2) year
period.
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(c)
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Immediate
full vesting of the Executive’s accounts under the Deferred Income
Plan.
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(d)
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Payment
of the premium for COBRA continuation health coverage for the Executive
and the Executive’s dependents until the earliest of (i) eighteen (18)
months after such termination, (ii) until no longer eligible for COBRA
continuation benefit coverage or (iii) the Executive commences other
substantially full-time employment.
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(e)
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If
the Executive dies after the Executive’s termination of employment and
before the end of the six-month period following the Executive’s
termination, any payment provided under this Section 6.3 that would have
been made (in the case of a lump-sum payment) or that would have commenced
(in the case of a periodic payment) on the first regular payroll date
after the end of the six-month period shall instead be made or commence on
the first regular payroll date following the Executive’s death, provided
that the Executive’s beneficiary is otherwise entitled to receive the
payment under this Section 6.3. To the extent that any payment
under this Section 6.3 is made “on the first regular payroll date”
following a date or event, the regular payroll date shall be determined
based on the Company’s payroll cycle applicable to the Executive at the
time of his separation from service (within the meaning of Section 409A of
the Code), without regard to any change in the payroll cycle that becomes
effective after the Executive’s separation from
service.
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6.4
Termination
by the Company for Cause or Termination by the Executive without Good
Reason. If the Executive is terminated by the Company for Cause or
the Executive terminates his employment without Good Reason, the Executive shall
be entitled to receive all Accrued Obligations.
6.5
Coordination
With Other Plans. The rules set forth in this Section 6.5 shall apply
to all amounts provided under the Agreement.
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To
the extent that the Executive’s Base Salary, annual incentive
compensation, or other amounts payable under this Agreement are subject to
a valid deferral election (or are deferred pursuant to a plan provision)
that had become irrevocable at the time of the Executive’s termination of
employment, the deferred amounts shall be paid in accordance with the
terms of the deferred compensation arrangement. Any amount
payable under this Agreement that would be regarded as a substitute for an
amount that was deferred as provided in the preceding sentence (for
example, a payment made in lieu of deferred annual incentive compensation)
also shall be paid in accordance with the terms of the deferred
compensation arrangement. This Section 6.5(a) is intended, and
shall be applied, solely to prevent the Executive’s deferral election or
an automatic deferral provision from being revocable to the extent that
its revocation would violate Section 409A of the
Code.
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(b)
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The
amounts and benefits provided under Sections 6 and 8 hereof are intended
to be inclusive and not duplicative of the amounts and benefits due under
the Company's employee benefit plans and programs, and this
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Agreement
shall be applied in a manner consistent with that intent. To
the extent that a duplicative benefit is provided under this Agreement and
under another employee benefit plan, policy, or program of the Company,
the following rules shall apply:
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(i)
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Any
benefit provided under a retirement plan that is tax-qualified under
Section 401(a) of the Code shall be paid exclusively as provided under the
tax-qualified retirement plan, and the duplicative benefit provided under
this Agreement shall be reduced by the value of the tax-qualified
retirement benefit.
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(ii)
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Any
benefit provided under a disability pay plan, death benefit plan, bona
fide vacation pay plan, or other plan or policy that is excluded from the
definition of “nonqualified deferred compensation” under Treasury
Regulations § 1.409A-1(a)(5) shall be paid exclusively as provided
under the plan or policy, and the duplicative benefit provided under this
Agreement shall be reduced by the value of the benefit provided under the
plan or policy.
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(iii)
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To
the extent that a provision of this Agreement makes specific reference to
another plan or program of the Company and states that the terms of the
other plan or program shall govern with respect to the calculation,
payment, or timing of payment of a particular benefit, that benefit shall
be paid as provided in the other plan or program, as stated in this
Agreement.
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(iv)
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In
all other circumstances in which any payment or benefit under this
Agreement duplicates a payment or benefit provided under another employee
benefit plan, policy, or program of the Company, or to the extent that the
payment or benefit under this Agreement is or could be subject to offset
by the benefit under another employee benefit plan, policy, or program of
the Company, the duplicative benefit shall be paid exclusively as provided
in this Agreement, and the duplicative benefit provided under the other
employee benefit plan, policy, or program shall be reduced by the value of
the benefit provided under this
Agreement.
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(v)
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The
benefit coordination provisions in this Section 6.5(b) are intended, and
shall be applied, to ensure that the payments made to the Executive are
exempt from, or comply with, Section 409A of the Code, and that the
coordination of benefits between this Agreement and the other employee
benefit plans, policies, or programs in which the Executive participates
will not result in any acceleration or re-deferral of deferred
compensation that would violate Section 409A of the
Code.
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6.6
The
Executive’s right under this Section 6 to receive any payments in installments
shall be treated as a right to a series of separate payments for purposes of
Section 409A of the Code, as provided in Treas. Reg.
§ 1.409A-2(b)(2)(iii).
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7.
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No
Mitigation/No Offset/Release
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(a)
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In
the event of any termination of employment hereunder, the Executive shall
be under no obligation to seek other employment and there shall be no
offset against any amounts due the Executive under this Agreement on
account of any remuneration attributable to any subsequent employment that
the Executive may obtain. The amounts payable hereunder shall not be
subject to setoff, counterclaim, recoupment, or defense. The
preceding sentence shall not limit the Company’s right to enforce the
forfeiture provision in Section
9.6(b).
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(b)
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Any
amounts payable and benefits or additional rights provided pursuant to
Section 6.3 or Section 8.2 beyond Accrued Obligations and beyond the sum
of any amounts due (without execution of a release) under the Company
severance program then in effect, or, if greater, three (3) months Base
Salary as severance, shall only be payable if the Executive delivers to
the Company a release of all claims of the Executive (other than those
specifically payable or providable hereunder on or upon the applicable
type of termination and any rights to indemnification, contribution,
exculpation, advances, or directors and officers liability insurance under
the Company’s organizational documents, under any plan or agreement, or at
law) with regard to the Company, its subsidiaries and related entities and
their respective past or present officers, directors and employees, in the
form attached to this Agreement as Exhibit C, that has become irrevocable
before the date on which such payment or benefit is due to be paid or
provided. To the extent that options and other equity awards
are eligible for accelerated vesting pursuant to the last sentence of
Section 8.2(i), the equity award shall not vest pursuant to Section 8.2(i)
until the Executive’s release has become irrevocable. The
Company and the Executive shall execute the release of claims and shall
deliver executed copies to one another within forty-five days following
the Executive’s separation from
service.
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(c)
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Upon
any termination of employment, upon the request of the Company, the
Executive shall deliver to the Company a resignation from all offices and
directorships and fiduciary positions of the Executive in which the
Executive is serving with, or at the request of, the Company or its
subsidiaries, affiliates or benefit
plans.
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8.1
Employment
Termination in Connection with a Change in Control.
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(a)
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In
the event of a Qualifying Termination during the period commencing
one-hundred eighty (180) days prior to the effective date of a Change in
Control and terminating on the second anniversary of the effective date of
a Change in
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Control
(the “Change in Control Protection Period”), then in lieu of the benefits
provided to the Executive under Section 6.3 of this Agreement, the Company
shall pay the Executive the amounts and provide the benefits described in
Section 8.2, below. For purposes of this Section 8, a
Qualifying Termination shall mean any termination of the Executive’s
employment (i) by the Company without Cause, or (ii) by the Executive for
Good Reason.
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(b)
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If
the Change in Control is a “Section 409A Change in Control,” as defined in
Section 8.3, and if the Qualifying Termination occurs after the Section
409A Change in Control, all applicable payments shall be made in a lump
sum on the first regular payroll date after the end of the six-month
period following the Qualifying Termination), except as otherwise provided
in Section 8.2(a) through (k),
below.
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(c)
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If
the Change in Control is not a Section 409A Change in Control, or if the
Qualifying Termination occurs before a Section 409A Change in Control, any
payment or benefit that would have been provided under Section 6.3 or
under a separate compensation plan in the absence of a Change in Control
shall be paid exclusively as provided in Section 6.3 or in the separate
compensation plan, without acceleration or other adjustment to reflect the
Change in Control. Any incremental additional payment or
benefit that is provided under this Section 8 solely upon an Executive’s
Qualifying Termination during the Change in Control Protection Period
shall be paid in a lump sum within 30 business days after the effective
date of the Change in Control (or, if later, on the first regular payroll
date after the end of the six-month period following the Qualifying
Termination).
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8.2
Payments
Upon a Qualifying Termination. Subject to the provisions of Section
8.1(b) and (c) regarding the time and manner of payment, the payments and
benefits payable upon a Qualifying Termination are as follows:
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(a)
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Any
Accrued Obligations.
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(b)
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A
lump-sum cash payment (subject to the distribution rules set forth later
in this paragraph) equal to three (3) times the highest rate of the
Executive’s Base Salary rate in effect at any time up to and including the
date of the Executive’s termination. If the Qualifying
Termination occurs after a Section 409A Change in Control, the entire
amount shall be paid in a lump sum, without interest, on the first regular
payroll date after the end of the sixth month following the Executive’s
termination. If the Change in Control is not a Section 409A
Change in Control, or if the Qualifying Termination precedes a Section
409A Change in Control, an amount equal to 2 times the Executive’s Base
Salary (reduced by any payments attributable to Base Salary made under
Section 6.3(b) before the Change in Control) shall be paid as provided in
Section 6.3(b), and any incremental additional amount payable under this
Section 8.2(b) solely as a result of the Change in Control shall be paid
in a lump sum, without interest, on the later of (i) on the first regular
payroll date after the end of the
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sixth
month following the Executive’s termination, or (ii) within 30 business
days after the effective date of the Change in
Control.
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(c)
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A
lump-sum cash payment equal to the Prorated Portion of the greater of: (i)
the Executive’s target annual incentive compensation award established for
the fiscal year during which the Executive’s award termination occurs, or
(ii) the Executive’s earned annual incentive award for the fiscal year
prior to the fiscal year in which the earlier of the Change in Control or
the Qualifying Termination occurs (whether or not
deferred).
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(d)
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A
lump-sum cash payment (subject to the distribution rules set forth later
in this paragraph) equal to three (3) times the greater of: (i) the
Executive’s highest annual incentive compensation earned over the three
(3) fiscal years ending prior to the earlier of the Change in Control or
the Qualifying Termination (whether or not deferred); or (ii) the
Executive’s target incentive compensation established for the fiscal year
in which the Executive’s date of termination occurs. If the
Qualifying Termination occurs after a Section 409A Change in Control, the
entire amount shall be paid in a lump sum, without interest, on the first
regular payroll date after the end of the sixth month following the
Executive’s termination. If the Change in Control is not a
Section 409A Change in Control, or if the Qualifying Termination precedes
a Section 409A Change in Control, an amount equal to 2 times the bonus
amount described in Section 6.3(b)(ii) (reduced by any installment
payments attributable to the bonus amount made under Section 6.3(b) before
the Change in Control) shall be paid as provided in Section 6.3(b), and
any incremental additional amount payable under this Section 8.2(d) solely
as a result of the Change in Control shall be paid in a lump sum, without
interest, on the later of (i) on the first regular payroll date after the
end of the sixth month following the Executive’s termination, or (ii)
within 30 business days after the effective date of the Change in
Control.
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(e)
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To
the extent the Executive is eligible, was eligible prior or after the
Change in Control (or, if earlier, the Qualifying Termination) or if the
Executive would be eligible with credit for an additional three (3) years
of age and service credit, coverage under applicable retiree health and
retiree life insurance plans for the Executive and (in the case of retiree
health coverage) the Executive’s eligible dependents. If the
Executive is eligible for retiree life insurance coverage only because of
the additional age and service credit, the Executive shall pay the full
cost of purchasing the coverage (under the Company’s group insurance
policy, or under an individual policy if coverage under the Company’s
policy is not available), and the Company shall reimburse the Executive
for the cost (before tax) of the coverage. The Company shall
reimburse the cost of coverage for the first six months following the
Executive’s termination in a lump sum, without interest, on the first
regular payroll date after the end of the six-month period, and the
Company shall reimburse the cost monthly
thereafter.
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(f)
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To
the extent eligible prior or after the Change in Control (or, if earlier,
the Qualifying Termination), continued participation, (coordinated with
(e) above to the extent duplicative), at no additional cost (before tax)
to the Executive than the Executive would have as an employee, in the
Company’s Survivor Benefit Plan for Textron Key Executives, accidental
death and dismemberment insurance coverage, and dependent life insurance
coverage, until three (3) years after the date of termination, provided,
however, that in the event the Executive obtains other employment that
offers substantially similar or improved benefits, as to any particular
welfare plan, such continuation of coverage by the Company for such
similar or improved benefit under such plan shall immediately cease. The
Company shall also reimburse the Executive for the cost (before tax) of
purchasing (under the Company’s group insurance policy, or under an
individual policy if coverage under the Company’s policy is not
available), for the continuation period described in the preceding
sentence, the level of Company-paid term life insurance coverage and
long-term disability insurance coverage that the Executive received on the
date of termination. The Company shall reimburse the cost of
coverage for the first six months following the Executive’s termination in
a lump sum, without interest, on the first regular payroll date after the
end of the six-month period, and the Company shall reimburse the cost
monthly thereafter for the remainder of the continuation
period.
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(g)
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A
lump-sum cash payment (subject to the distribution rules set forth later
in this paragraph) of the actuarial present value equivalent (as
determined in accordance with the most favorable (to the Executive)
overall actuarial assumptions and subsidies in any of the Company’s
tax-qualified or nonqualified type defined benefit pension plans in which
the Executive then participates) of the accrued benefits accrued by the
Executive as of the date of termination under the terms of any
nonqualified defined benefit type retirement plan, including but not
limited to, the Amended and Restated Supplemental Executive Retirement
Plan for Textron Inc. Key Executives and the Spillover Pension Plan and
assuming the benefit was fully vested without regard to any minimum age or
service requirements. For this purpose, such benefits shall be calculated
under the assumption that the Executive’s employment continued following
the date of termination for three (3) full years (i.e., three (3)
additional years of age (including, but not limited to, for purposes of
determining the actuarial present value), compensation and service credits
shall be added). If the Qualifying Termination occurs after a
Section 409A Change in Control, the present value of the amount that would
have been payable under the nonqualified defined benefit type retirement
plans if no Change in Control had occurred shall be paid in a lump sum,
without interest, on the date when it would otherwise have been payable
under the nonqualified plans if no Change in Control had
occurred. If the Change in Control is not a Section 409A
Change in Control, or if the Qualifying Termination precedes a Section
409A Change in Control, the amount that would have been payable under the
nonqualified defined benefit type retirement plans if no Change in Control
had occurred (reduced by any payments made under the plans before the
Change in
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Control)
shall be paid as provided under the terms of the applicable nonqualified
plans. In either case, any incremental additional amount
payable under this Section 8.2(g) solely as a result of the Change in
Control shall be paid in a lump sum, without interest, on the later of (i)
on the first regular payroll date after the end of the sixth month
following the Executive’s termination, or (ii) within 30 business days
after the effective date of the Change in
Control.
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(h)
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A
lump-sum cash payment, on the later of (i) on the first regular payroll
date after the end of the sixth month following the Executive’s Qualifying
Termination, or (ii) within 30 business days after the effective date of
the Change in Control, equal to three (3) times the amount of the maximum
Company contribution or match to any defined contribution type plan in
which the Executive participates.
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(i)
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Full
vesting and payment of any outstanding performance share units, assuming
performance at target levels for the full performance
cycle. Subject to Section 8.1(c), the payment described in the
preceding sentence shall be made in a lump sum, without interest, on the
later of (i) on the first regular payroll date after the end of the sixth
month following the Executive’s Qualifying Termination, or (ii) within 30
business days after the effective date of the Change in
Control. For equity awards other than performance share units,
immediate full vesting of any outstanding stock options and other equity
awards (and lapse of any forfeiture
provisions).
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(j)
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Outplacement
services at a level commensurate with the Executive’s position, including
use of an executive office and secretary, for a period of one (1) year
commencing on the date of termination but in no event extending beyond the
date on which the Executive commences other full time
employment. The only taxable payments or in-kind benefits
provided under this paragraph during the first six months following the
Executive’s Qualifying Termination shall be (A) in-kind benefits that the
Executive could otherwise deduct as business expenses under Sections 162
or 167 of the Code (disregarding limitations based on adjusted gross
income), and (B) reasonable outplacement expenses actually incurred
by the Executive and directly related to the Qualifying
Termination. Any taxable outplacement expenses incurred during
the first six months following the Executive’s termination that are
otherwise payable under this paragraph, but whose payment during the
initial six-month period would result in additional tax under Section 409A
of the Code, shall be paid by the Executive during the initial six-month
period; and the Company shall reimburse the Executive for the payments in
a lump sum, without interest, on the first regular payroll date after the
end of the sixth month following the Executive’s Qualifying
Termination.
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(k)
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If
the Executive dies after the Executive’s termination of employment and
before the end of the six-month period following the Executive’s
termination, any payment provided under Section 8.1 or this Section 8.2
that would have
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been
made (in the case of a lump-sum payment) or that would have commenced (in
the case of a periodic payment) on the first regular payroll date after
the end of the six-month period shall instead be made or commence on the
first regular payroll date following the Executive’s death, provided that
the Executive’s beneficiary is otherwise entitled to receive the payment
under Section 8.1 or this Section 8.2. To the extent that any
payment under Section 8.1 or this Section 8.2 is made “on the first
regular payroll date” following a date or event, the regular payroll date
shall be determined based on the Company’s payroll cycle applicable to the
Executive at the time of his separation from service (within the meaning
of Section 409A of the Code), without regard to any change in the payroll
cycle that becomes effective after the Executive’s separation from
service.
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8.3
Definition
of “Change in Control.” A Change in Control of the Company shall be deemed to
have occurred as of the first day any one or more of the following conditions
shall have been satisfied:
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(a)
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Any
“person” or “group” (within the meaning of Section 13(d) and 14(d)(2) of
the Securities Exchange Act of 1934, as amended (the “Exchange Act”))
other than the Company, any trustee or other fiduciary holding Company
common stock under an employee benefit plan of the Company or a related
company, or any corporation which is owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of the Company’s common stock, is or becomes the beneficial
owner (as defined in Rule 13d-3 under the Exchange Act) of more than
thirty percent (30%) of the then outstanding voting
stock;
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(b)
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During
any period of two (2) consecutive years, individuals who at the beginning
of such period constitute the Board and any new director whose election by
the Board or nomination for election by the Company’s stockholders was
approved by a vote of at least two-thirds of the directors then still in
office who either were directors at the beginning of the two year period
or whose election or nomination for election was previously so approved,
cease for any reason to constitute at least a majority of the
Board;
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(c)
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The
consummation of a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would result in
the voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or being
converted into voting securities of the surviving entity) more than fifty
percent (50%) of the combined voting securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation; or
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(d)
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The
approval of the stockholders of the Company of a plan of complete
liquidation of the Company or an agreement for the sale or disposition by
the Company of all or substantially all of its
assets.
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A “Section 409A Change in Control”
shall be deemed to have occurred as of the first day any one or more of the
conditions in paragraphs (a) through (d), above, has been satisfied, if the
event also constitutes a “change in ownership,” “change in effective control,”
or “change in the ownership of a substantial portion of the Company’s assets” as
defined in regulations or other guidance under Section 409A of the
Code.
8.4
Excise
Tax Equalization Payment. In the event that the Executive becomes entitled to
payments and/or benefits which would constitute “parachute payments” within the
meaning of Section 280G(b)(2) of the Code, the provisions of Exhibit A will
apply.
8.5
The
Executive’s right under this Section 8 to receive any payments in installments
shall be treated as a right to a series of separate payments for purposes of
Section 409A of the Code, as provided in Treas. Reg.
§ 1.409A-2(b)(2)(iii).
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9.
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Noncompetition,
Confidentiality and
Nondisparagement
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9.1
Agreement
Not to Compete.
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(a)
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The
Executive agrees that for a period of two (2) years after the termination
of the Executive’s employment, the Executive will not engage in
Competition with the Company with the Listed Companies, provided that
after the Executive’s termination of employment the Listed Companies shall
be limited to those effectively listed at the time of his termination and
still on such list at the time of any alleged activity of the Executive,
including, but not limited to, (i) soliciting customers, business or
orders for, or selling any products and services in, Competition with the
Company for such Listed Companies or (ii) diverting, enticing, or
otherwise taking away customers, business or orders of the Company, or
attempting to do so, in either case in Competition with the Company for
such Listed Companies.
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(b)
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The
Executive agrees that if, while he is receiving severance pay from the
Company pursuant to Section 6.3(b), the Executive: (i) violates (a) above,
or (ii) otherwise engages in Competition in the Restricted Territory,
whether or not with the Listed Companies, Section 9.6(b) hereof shall
apply.
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(c)
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The
Executive agrees that the restrictions contained in this Section 9 are
necessary for the protection of the business and goodwill of the Company
because of the trade secrets within the Executive’s knowledge and are
considered by the Executive to be reasonable for such
purpose.
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9.2
Definitions.
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(a)
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“Competition”
shall mean engaging in, as an employee, director, partner, principal,
shareholder, consultant, advisor, independent contractor or similar
capacity, with (a) the Listed Companies or (b) in any business, activity
or conduct which directly competes with the business of the Company,
provided that, with regard to the period after termination of the
Executive’s employment, Section 9.1(b)(ii) shall only apply to business
lines in which the Company is
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engaged
both at the time of termination of employment and at the time of the
determination and which during the last fiscal year ending prior to the
date of such termination represented at least five percent (5%) of the
Company’s revenues (the “Prohibited Lines”). Notwithstanding anything else
in this Section 9, Competition shall not include: (A) (i) holding five
percent (5%) or less of an interest in the equity or debt of any publicly
traded company, (ii) engaging in any activity with the prior written
approval of the Chief Executive Officer or the O&C Committee, (iii)
the practice of law in a law firm that represents entities in Competition
with the Company, provided that the Executive does not personally
represent such entities, or (iv) the employment by, or provision of
services to, an investment banking firm or consulting firm that provides
services to entities that are in Competition with the Company provided
that the Executive does not personally represent or provide services to
such entities that are Listed Companies or otherwise with regard to
businesses in Competition with the Prohibited Lines, or (B) with regard to
Section 9.1(b)(ii), (i) being employed by, or consulting for, a
non-Competitive division or business unit of an entity which is in
Competition with the Company (and participating in such entity’s employee
equity plans), (ii) being employed by, or consulting for, an entity which
had annual revenues in the last fiscal year prior to the Executive being
employed by, or consulting for, the entity generated through business
lines in Competition with the Prohibited Lines of the Company that do not
exceed five percent (5%) of such entity’s total annual revenues, provided
that revenues within the Executive’s area of responsibility or authority
are not more than ten percent (10%) composed of the revenues from the
businesses in Competition with the Prohibited Lines, or (iii) any
activities conducted after a Change in Control of the
Company.
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(b)
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The
Restricted Territory shall mean any geographic area in which the Company
with regard to the Prohibited Lines did more than nominal
business.
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(c)
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Listed
Companies shall mean those entities which are within the “peer group”
established by the Company for the performance graphs in its proxy
statement pursuant to Item 402(l) of Regulation S-K under the Exchange Act
and which are in a list of no more than five (5) entities established by
the Company from time to time and available from the Chief Human Resources
Officer, provided that the addition of any entity to the list shall not be
effective until sixty (60) days after it is so
listed.
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(d)
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For
purposes of this Section 9, “Company” shall mean the Company and its
subsidiaries and affiliates.
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9.3
Agreement
Not to Engage in Certain Solicitation. The Executive agrees that the Executive
will not, during the Executive’s employment with the Company or during the two
(2) year period thereafter, directly or indirectly, solicit or induce, or
attempt to solicit or induce, any non-clerical employee(s), sales
representative(s), agent(s), or consultant(s) of the Company to terminate such
person’s employment, representation or other association with the
Company for the purpose of affiliating with any entity with which the
Executive is associated (“Solicitation”).
9.4
Confidential
Information.
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(a)
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The
Executive specifically acknowledges that any trade secrets or confidential
business and technical information of the Company or its vendors,
suppliers or customers, whether reduced to writing, maintained on any form
of electronic media, or maintained in mind or memory and whether compiled
by the Executive or the Company (collectively, “Confidential
Information”), derives independent economic value from not being readily
known to or ascertainable by proper means by others; that reasonable
efforts have been made by the Company to maintain the secrecy of such
information; that such information is the sole property of the Company or
its vendors, suppliers, or customers and that any retention, use or
disclosure of such information by the Executive during the Employment Term
(except in the course of performing duties and obligations of employment
with the Company) or any time after termination thereof, shall constitute
misappropriation of the trade secrets of the Company or its vendors,
suppliers, or customers, provided that Confidential Information shall not
include: (i) information that is at the time of disclosure public
knowledge or generally known within the industry, (ii) information deemed
in good faith by the Executive, while employed by the Company, desirable
to disclose in the course of performing the Executive’s duties, (iii)
information the disclosure of which the Executive in good faith deems
necessary in defense of the Executive’s rights provided such disclosure by
the Executive is limited to only disclose as necessary for such purpose,
or (iv) information disclosed by the Executive to comply with a court, or
other lawful compulsory, order compelling him to do so, provided the
Executive gives the Company prompt notice of the receipt of such order and
the disclosure by the Executive is limited to only disclosure necessary
for such purpose.
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(b)
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The
Executive acknowledges that the Company from time to time may have
agreements with other persons or with the United States Government, or
agencies thereof, that impose obligations or restrictions on the Company
regarding inventions made during the course of work under such agreements
or regarding the confidential nature of such work. If the Executive’s
duties hereunder will require disclosures to be made to him subject to
such obligations and restrictions, the Executive agrees to be bound by
them.
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9.5
Scope of
Restrictions. If, at the time of enforcement of this Section 9, a
court holds that the restrictions stated herein are unreasonable under
circumstances then existing, the parties hereto agree that the maximum period,
scope or geographical area reasonable under such circumstances shall be
substituted for the stated period, scope or area and that the court shall be
allowed to revise the restrictions contained herein to cover the maximum period,
scope and area permitted by law.
9.6
Remedies.
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(a)
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In
the event of a material breach or threatened material breach of Section
9.1(a), Section 9.3, Section 9.4 or Section 9.10, the Company, in addition
to its other remedies at law or in equity, shall be entitled to injunctive
or other equitable relief in order to enforce or prevent any violations of
the provisions of this Section 9. Except as specifically provided with
regard to Listed Companies, the Company agrees that it will not assert to
enjoin or otherwise limit the Executive’s activities based on an argument
of inevitable disclosure of confidential
information.
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(b)
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In
the event Section 9.1(b) applies, the Company may immediately cease
payment to the Executive of all future amounts due under Sections 6.3(a)
or (b) as well as otherwise specifically provided in any other plan, grant
or program.
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(c)
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Upon
written request of the Executive, the Company shall within thirty (30)
days notify the Executive in writing whether or not in good faith it
believes any proposed activities would be in Competition and, if it so
determines or does not reply within thirty (30) days, it shall be deemed
to waive any right to treat such activities as Competition unless the
facts are otherwise than as presented by the Executive or there is a
change thereafter in such activities. The Executive shall promptly provide
the Company with such information as it may reasonably request to evaluate
whether or not such activities are in
Competition.
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9.7
Uniformity. In
no event shall any definitions of Competition or Solicitation (or a similar
provision) as it applies to the Executive with regard to any plan of program or
grant of the Company be interpreted to be any broader than as set forth in this
Section 9.
9.8
Delivery
of Documents. Upon termination of this Agreement or at any other time
upon request by the Company, the Executive shall promptly deliver to the Company
all records, files, memoranda, notes, designs, data, reports, price lists,
customer lists, drawings, plans, computer programs, software, software
documentation, sketches, laboratory and research notebooks and other documents
(and all copies or reproductions of such materials in his possession or control)
belonging to the Company. Notwithstanding the foregoing, the Executive may
retain his rolodex and similar phone directories (collectively, the “Rolodex”)
to the extent the Rolodex does not contain information other than name, address,
telephone number and similar information, provided that, at the request of the
Company, the Executive shall provide the Company with a copy of the
Rolodex.
9.9
Nondisparagement.
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(a)
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During
the Employment Term and thereafter, the Executive shall not with willful
intent to damage economically or as to reputation or vindictively
disparage the Company, its subsidiaries or their respective past or
present officers, directors or employees (the “Protected Group”), provided
that the foregoing shall not apply to (i) actions or statements taken or
made by the
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Executive
while employed by the Company in good faith as fulfilling the Executive’s
duties with the Company or otherwise at the request of the Company, (ii)
truthful statements made in compliance with legal process or governmental
inquiry, (iii) as the Executive in good faith deems necessary to rebut any
untrue or misleading public statements made about him or any other member
of the Protected Group, (iv) statements made in good faith by the
Executive to rebut untrue or misleading statements made about him or any
other member of the Protected Group by any member of the Protected Group,
and (v) normal commercial puffery in a competitive business situation. No
member of the Protected Group shall be a third party beneficiary of this
Section 9.9(a).
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(b)
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During
the Employment Term and thereafter, neither the Company officially nor any
then member of the Executive Leadership Team (or the equivalent) of the
Company, as such term is currently used within the Company, shall with
willful intent to damage the Executive economically or as to reputation or
otherwise vindictively disparage the Executive, provided the foregoing
shall not apply to (i) actions or statements taken or made in good faith
within the Company in fulfilling duties with the Company, (ii) truthful
statements made in compliance with legal process, governmental inquiry or
as required by legal filing or disclosure requirements, (iii) as in good
faith deemed necessary to rebut any untrue or misleading statements by the
Executive as to any member of the Protected Group, or (iv) normal
commercial puffery in a competitive business
situation.
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(c)
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In
the event of a material breach or threatened material breach of clauses
(a) or (b) above, the Company or the Executive, as the case may be, in
addition to its or the Executive’s other remedies at law or in equity,
shall be entitled to injunctive or other equitable relief in order to
enforce or prevent any violations of this Section
9.9.
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The
Company shall cover the Executive under directors and officers liability
insurance for bona fide (within the meaning of Treas. Reg. § 1.409A-1(b)(10))
claims based on the Executive’s actions or failure to act in his capacity as a
director, officer, employee, or fiduciary of the Company in the same amount and
to the same extent, if any, as the Company covers its other officers and
directors. The Company shall maintain the coverage both during and,
while potential liability exists, after the Employment Term.
11.1
Assignment
by the Company. This Agreement may and shall be assigned or
transferred to, and shall be binding upon and shall inure to the benefit of, any
successor of the Company, and any such successor shall be deemed substituted for
all purposes of the “Company” under the terms of this Agreement. As used in this
Agreement, the term “successor” shall mean any person, firm, corporation or
business entity which at any time, whether by merger, purchase, or otherwise,
acquires all or substantially all of the assets of the Company.
Notwithstanding such assignment, the Company shall remain, with such
successor, jointly and severally liable for all its obligations hereunder.
Except as herein provided, this Agreement may not otherwise be assigned by the
Company.
11.2
Assignment
by the Executive. This Agreement is not assignable by the Executive.
This Agreement shall inure to the benefit of and be enforceable by the
Executive’s personal or legal representatives, executors, and administrators,
successors, heirs, distributees, devisees, and legatees. If the Executive should
die while any amounts payable to the Executive hereunder remain outstanding, all
such amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to the Executive’s devisee, legatee, or other
designee or, in the absence of such designee, to the Executive’s
estate.
12.1
Payment
of Legal Fees. The Company shall pay the Executive’s reasonable legal
fees and costs associated with entering into this Agreement. To the fullest
extent permitted by law, the Company shall promptly pay upon submission of
statements all legal and other professional fees, costs of litigation,
prejudgment interest, and other expenses incurred during the Executive’s
lifetime or in the five-year period following the Executive’s death in
connection with any dispute arising hereunder and/or in connection with any
release of claims executed or to be executed in connection herewith; provided,
however, the Company shall be reimbursed by the Executive for (i) the fees and
expenses advanced in the event the Executive’s claim is in a material manner in
bad faith or frivolous and the arbitrator or court, as applicable, determines
that the reimbursement of such fees and expenses is appropriate, or (ii) to the
extent that the arbitrator or court, as appropriate, determines that such legal
and other professional fees are clearly and demonstrably
unreasonable. Prejudgment interest shall be paid at the rate awarded
by the arbitrator or court on any money award or judgment obtained by the
Executive or by any person claiming by or through the Executive, payable at the
same time as the underlying award or judgment is paid. The only
taxable payments or reimbursements provided under this paragraph
during the first six months following the Executive’s Qualifying Termination
shall be reimbursements that the Executive could otherwise deduct as business
expenses under Sections 162 or 167 of the Code (disregarding limitations based
on adjusted gross income). After the end of the sixth month following
the Executive’s Qualifying Termination, taxable reimbursements shall be provided
under this paragraph subject to the following requirements: (A) all
reimbursements shall be provided pursuant to a written policy that provides an
objectively determinable nondiscretionary description of the reimbursements
provided; (B) all reimbursements shall be paid no later than the end of the
calendar year following the year in which the expense was incurred; (C) no
reimbursement shall be subject to liquidation or exchange for another benefit;
and (D) the amount of reimbursable expense incurred in one year shall not affect
the amount of reimbursement available in another year. Any taxable
expenses incurred during the first six months following the Executive’s
termination that are otherwise payable or reimbursable under this paragraph, but
whose payment during the initial six-month period would result in additional tax
under Section 409A of the Code, shall be paid or reimbursed in a lump sum,
without interest, on the first regular payroll date after the end of the sixth
month following the Executive’s Qualifying Termination.
12.2
Arbitration. All
disputes and controversies arising under or in connection with this Agreement,
other than the seeking of injunctive or other equitable relief pursuant to
Section 9 hereof, shall be settled by arbitration conducted before a panel of
three (3) arbitrators sitting in New York City, New York, or such other location
agreed by the parties hereto, in accordance with the rules for expedited
resolution of commercial disputes of the American Arbitration Association then
in effect. The determination of the majority of the arbitrators shall be final
and binding on the parties. Judgment may be entered on the award of the
arbitrator in any court having proper jurisdiction. All expenses of such
arbitration, including the fees and expenses of the counsel of the Executive,
shall be borne by the Company and the Executive shall be entitled to
reimbursement of his expenses as provided in Section 12.1 hereof.
12.3
Notice.
Any notices, requests, demands, or other communications provided for by this
Agreement shall be sufficient if in writing and if delivered personally, sent by
telecopier, sent by an overnight service or sent by registered or certified
mail. Notice to the Executive not delivered personally (or by telecopy where the
Executive is known to be) shall be sent to the last address on the books of the
Company, and notice to the Company not delivered personally (or by telecopy to
the known personal telecopy of the person it is being sent to) shall be sent to
it at its principal office. All notices to the Company shall be delivered to the
Chief Executive Officer with a copy to the [senior legal officer]. Delivery
shall be deemed to occur on the earlier of actual receipt or tender and
rejection by the intended recipient.
12.4
Continued
Payments. In the event after a Change in Control either party files for
arbitration to resolve any dispute as to whether a termination is for Cause or
Good Reason, until such dispute is determined by the arbitrators, the Executive
shall continue to be treated economically and benefit wise in the manner
asserted by him in the arbitration effective as of the date of the filing of the
arbitration, subject to the Executive promptly refunding any amounts paid to
him, paying the cost of any benefits provided to him and paying to the Company
the profits in any stock option or other equity awards exercised or otherwise
realized by him during the pendency of the arbitration which he is ultimately
held not to be entitled to; provided the arbitrators may terminate such payments
and benefits in the event that they determine at any point that the Executive is
intentionally delaying conclusion of the arbitration.
13.1
Entire
Agreement. This Agreement, except to the extent specifically provided
otherwise herein, supersedes any prior agreements or understandings, oral or
written, between the parties hereto or between the Executive and the Company,
with respect to the subject matter hereof and constitutes the entire Agreement
of the parties with respect to the subject matter hereof. To the
extent any severance plan or program of the Company that would apply to the
Executive is more generous to the Executive than the provisions hereof, the
Executive shall be entitled to any additional payments or benefits which are not
duplicative.
13.2
Modification. This
Agreement shall not be varied, altered, modified, canceled, changed, or in any
way amended, nor any provision hereof waived, except by mutual agreement of the
parties in a written instrument executed by the parties hereto or their legal
representatives.
13.3
Severability. In
the event that any provision or portion of this Agreement shall be determined to
be invalid or unenforceable for any reason, the remaining provisions of this
Agreement shall be unaffected thereby and shall remain in full force and
effect.
13.4
Counterparts. This
Agreement may be executed in two (2) or more counterparts, each of which shall
be deemed to be an original, but all of which together will constitute one and
the same Agreement.
13.5
Tax
Withholding. The Company may withhold from any benefits payable under
this Agreement all federal, state, city, or other taxes as may be required
pursuant to any law or governmental regulation or ruling.
13.6
Beneficiaries. The
Executive may designate one or more persons or entities as the primary and/or
contingent beneficiaries of any amounts to be received under this Agreement.
Such designation must be in the form of a signed writing acceptable to the Board
or the Board’s designee. The Executive may make or change such designation at
any time.
13.7
Representation. The
Executive represents that the Executive’s employment by the Company and the
performance by the Executive of his obligations under this Agreement do not, and
shall not, breach any agreement that obligates him to keep in confidence any
trade secrets or confidential or proprietary information of his or of any other
party, to write or consult to any other party or to refrain from competing,
directly or indirectly, with the business of any other party. The Executive
shall not disclose to the Company, and the Company shall not request that the
Executive disclose, any trade secrets or confidential or proprietary information
of any other party.
13.8
Section
409A.
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(a)
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Although
the payments and benefits provided under the Agreement are intended to be
exempt from, or to comply with, Section 409A of the Code, the Company
shall not be liable for any additional tax, interest, or penalty the
Executive incurs as a result of the failure of any payment or benefit to
satisfy the requirements of Section 409A, except as provided in subsection
(c), below. The Company will promptly make any change in the
Agreement that the Executive reasonably requests to ensure that the
Agreement will comply with Section 409A, provided that the requested
change does not alter any substantive provision of the Agreement in a
manner that the Company, in its sole discretion, reasonably regards as
being contrary to the Company’s
interest.
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(b)
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The
Company will consider in good faith any change in the Agreement that the
Executive reasonably requests to ensure that the Agreement will comply
with Section 409A. If the Company is not willing to accept the
proposed change as written, the Company will promptly communicate to the
Executive the reasons for the Company’s refusal and any revisions that
would make the proposed change acceptable to the
Company.
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(c)
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The
Company shall indemnify the Executive, as provided in this subsection (c),
if a violation of Section 409A occurs as a result of (1) the Company’s
clerical error,
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(2)
the Company’s failure to administer this Agreement or any benefit plan or
program in accordance with its written terms, or (3) a provision of any
benefit plan or program of the Company (other than this Agreement) that
fails to comply with Section 409A (each event described in clauses (1)
through (3) is referred to as an “Indemnified Section 409A Violation”),
and the Executive incurs additional tax under Section 409A as a result of
the Indemnified Section 409A Violation. The Company shall
reimburse the Executive for (i) the 20% additional income tax
described in Section 409A(a)(1)(B)(i)(II) of the Code (to the extent that
the Executive incurs the 20% additional income tax as a result of the
Indemnified Section 409A Violation), and (ii) any interest or penalty that
is assessed with respect to the Executive’s failure to make a timely
payment of the 20% additional income tax described in clause (i), provided
that the Executive pays the 20% additional income tax promptly upon being
notified that the tax is due (the amounts described in clause (i) and
clause (ii) are referred to collectively as the “Section 409A
Tax”). The Company shall make a payment (the “Gross-Up
Payment”) to the Executive such that the net amount the Executive retains,
after paying any federal, state, or local income tax or FICA tax on the
Gross-Up Payment, shall be equal to the Section 409A Tax. The
Company and the Executive shall calculate, adjust (if necessary), and pay
or repay the Gross-Up Payment in accordance with the procedures specified
in subsections (c) through (g) of Exhibit A (but substituting “Section
409A Tax” for “Excise Tax” wherever the latter term appears in Exhibit
A).
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The
provisions of this Agreement shall be construed and enforced in accordance with
the laws of the State of Delaware, without regard to any otherwise applicable
principles of conflicts of laws.
IN
WITNESS WHEREOF, the Executive and the Company have executed this Agreement, as
of the day and year first above written.
/s/ Kenneth C.
Bohlen
________________
Kenneth
C. Bohlen
TEXTRON
INC.
By:
/s/ Lewis B.
Campbell
__________
Name: Lewis
B. Campbell
Title: Chairman,
President, and CEO
EXHIBIT
A
Parachute
Gross Up
(a)
In the
event that the Executive shall become entitled to payments and/or benefits
provided by this Agreement or any other amounts in the “nature of compensation”
(whether pursuant to the terms of this Agreement or any other plan, arrangement
or agreement with the Company, any person whose actions result in a change of
ownership or effective control covered by Section 280G(b)(2) of the Code or any
person affiliated with the Company or such person) as a result of such change in
ownership or effective control (collectively the “Company Payments”), and such
Company Payments will be subject to the tax (the “Excise Tax”) imposed by
Section 4999 of the Code (and any similar tax that may hereafter be imposed by
any taxing authority) the Company shall pay to the Executive at the time
specified in subsection (d) below an additional amount (the “Gross-up Payment”)
such that the net amount retained by the Executive, after deduction of any
Excise Tax on the Company Payments and any U.S. federal, state, and for local
income or payroll tax upon the Gross-up Payment provided for by this paragraph
(a), but before deduction for any U.S. federal, state, and local income or
payroll tax on the Company Payments, shall be equal to the Company
Payments. Notwithstanding the foregoing, if the then present
aggregate value of the Company Payments (calculated in accordance with the
principles of Section 280G of the Code and the regulations promulgated
thereunder) does not exceed 110% of the “Safe Harbor Amount” (which shall be
2.99 times the Executive’s “base amount” within the meaning of Section
280G(b)(3) of the Code), then the Company shall not pay the Executive a Gross-up
Payment, and the Company Payments (whether due pursuant to the terms of this
Agreement or any other plan, arrangement or agreement with the Company) shall be
reduced so that the then present aggregate value of the Company Payments equals
the Safe Harbor Amount. The reduction of the Company Payments, if
applicable, shall be effected in the following order (unless the Executive
elects another method of reduction by written notice to the Company prior to the
Change in Control): (i) any cash severance benefits based on a multiple of Base
Salary or annual incentive compensation; (ii) any other cash amounts payable to
the Executive; (iii) any benefits valued as parachute payments; (iv)
acceleration of vesting of any stock option for which the exercise price exceeds
the then fair market value of the underlying stock; and (v) acceleration of
vesting of any equity award not covered by subsection (iv).
(b)
For
purposes of determining whether any of the Company Payments and Gross-up
Payments (collectively the “Total Payments”) will be subject to the Excise Tax
and the amount of such Excise Tax, (x) the Total Payments shall be treated as
“parachute payments” within the meaning of Section 280G(b)(2) of the Code, and
all “parachute payments” in excess of the “base amount” (as defined under Code
Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax,
unless and except to the extent that, in the opinion of the Company’s
independent certified public accountants appointed prior to any change in
ownership (as defined under Code Section 280G(b)(2)) or tax counsel selected by
such accountants (the “Accountants”) such Total Payments (in whole or in part)
either do not constitute “parachute payments,” represent reasonable compensation
for services actually rendered within the meaning of Section 280G(b)(4) of the
Code in excess of the “base amount” or are otherwise not subject to the Excise
Tax, and (y) the value of any non-cash benefits or any deferred payment or
benefit shall be determined by the Accountants in accordance with the principles
of Section 280G of the Code.
(c)
For
purposes of determining the amount of the Gross-up Payment, the Executive shall
be deemed to pay U.S. federal income taxes at the highest marginal rate of U.S.
federal income taxation in the calendar year in which the Gross-up Payment is to
be made and state and local income taxes at the highest marginal rate of
taxation in the state and locality of the Executive’s residence for the calendar
year in which the Company Payment is to be made, net of the maximum reduction in
U.S. federal income taxes which could be obtained from deduction of such state
and local taxes if paid in such year. In the event that the Excise Tax is
subsequently determined by the Accountants to be less than the amount taken into
account hereunder at the time the Gross-up Payment is made, the Executive shall
repay to the Company, at the time that the amount of such reduction in Excise
Tax is finally determined, the portion of the prior Gross-up Payment
attributable to such reduction (plus the portion of the Gross-up Payment
attributable to the Excise Tax and U.S. federal, state and local income tax
imposed on the portion of the Gross-up Payment being repaid by the Executive if
such repayment results in a reduction in Excise Tax or a U.S. federal, state and
local income tax deduction), plus interest on the amount of such repayment at
the rate provided in Section 1274(b)(2)(B) of the Code. Notwithstanding the
foregoing, in the event any portion of the Gross-up Payment to be refunded to
the Company has been paid to any U.S. federal, state and local tax authority,
repayment thereof (and related amounts) shall not be required until actual
refund or credit of such portion has been made to the Executive, and interest
payable to the Company shall not exceed the interest received or credited to the
Executive by such tax authority for the period it held such portion. The
Executive and the Company shall mutually agree upon the course of action to be
pursued (and the method of allocating the expense thereof) if the Executive’s
claim for refund or credit is denied.
In the
event that the Excise Tax is later determined by the Accountant or the Internal
Revenue Service to exceed the amount taken into account hereunder at the time
the Gross-up Payment is made (including by reason of any payment the existence
or amount of which cannot be determined at the time of the Gross-up Payment),
the Company shall make an additional Gross-up Payment in respect of such excess
(plus any interest or penalties payable with respect to such excess) at the time
that the amount of such excess is finally determined.
(d)
The
Gross-up Payment or portion thereof provided for in subsection (c) above shall
be paid not later than the thirtieth (30th) day following an event occurring
which subjects the Executive to the Excise Tax; provided, however, that if the
amount of such Gross-up Payment or portion thereof cannot be finally determined
on or before such day, the Company shall pay to the Executive on such day an
estimate, as determined in good faith by the Accountant, of the minimum amount
of such payments and shall pay the remainder of such payments (together with
interest at the rate provided in Section 1274(b)(2)(B) of the Code), subject to
further payments pursuant to subsection (c) hereof, as soon as the amount
thereof can reasonably be determined, but in no event later than the ninetieth
day after the occurrence of the event subjecting the Executive to the Excise
Tax. In the event that the amount of the estimated payments exceeds the amount
subsequently determined to have been due, the Company shall promptly notify the
Executive of the excess payment, and the Executive shall repay the excess amount
to the Company within fifteen days after the Executive receives the notice
(together with interest at the rate provided in Section 1274(b)(2)(B) of the
Code).
(e)
In the
event of any controversy with the Internal Revenue Service (or other taxing
authority) with regard to the Excise Tax, the Executive shall permit the Company
to
control issues related to the Excise Tax (at its expense), provided that
such issues do not potentially materially adversely affect the Executive, but
the Executive shall control any other issues. In the event the issues are
interrelated, the Executive and the Company shall in good faith cooperate so as
not to jeopardize resolution of either issue, but if the parties cannot agree
the Executive shall make the final determination with regard to the issues. In
the event of any conference with any taxing authority as to the Excise Tax or
associated income taxes, the Executive shall permit the representative of the
Company to accompany the Executive, and the Executive and the Executive’s
representative shall cooperate with the Company and its representative.
(f)
The
Company shall be responsible for all charges of the Accountant.
(g)
The
Company and the Executive shall promptly deliver to each other copies of any
written communications, and summaries of any verbal communications, with any
taxing authority regarding the Excise Tax covered by this Exhibit
A.
EXHIBIT
B
Kenneth
C. Bohlen
Special
Pension Arrangement:
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·
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2.5
years of credited service for each year employed for the first five years
of employment provided he is employed for a minimum of five
years.
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·
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2.0
years of credited service for each year of service thereafter through age
65.
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·
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Minimum
Pension Guarantee: If this special pension arrangement results
in a lesser pension benefit than would result from the following
arrangement, the credited service schedule described above will be
adjusted upon retirement to provide a pension benefit equal to the
following arrangement. A review of the two pension calculations
will be made at the completion of 5 years of actual service and every year
thereafter. Any adjustments to the credited service arrangement
that may be necessary will be done at the time of
retirement.
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·
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Two
years of credited service for each year employed for the first five years
of employment provided he is employed for a minimum of five
years.
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·
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50%
of capped long-term incentive compensation will be treated as pensionable
compensation.
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·
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The
special pension provisions described above shall apply for purposes of
determining (i) the amount of the Executive’s accrued benefit under the
Spillover Pension Plan, and (ii) the extent to which the Executive’s
accrued benefit is vested. The time and form of payment of the
Executive’s benefit under the Spillover Pension Plan, the amount of any
reduction for early retirement, and eligibility for death benefits shall
be based on the Executive’s actual age and service at the time of his
retirement.
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EXHIBIT
C
Form of
Release
NOTICE:
YOU MAY CONSIDER THIS GENERAL RELEASE OF CLAIMS FOR UP TO TWENTY-ONE (21) DAYS
FROM YOUR NOTICE OF TERMINATION. IF YOU DECIDE TO SIGN IT, YOU MAY
REVOKE THIS GENERAL RELEASE OF CLAIMS WITHIN SEVEN (7) DAYS AFTER SIGNING
IT. IF YOU REVOKE THE RELEASE WITHIN THIS PERIOD, YOUR REVOCATION
MUST BE IMMEDIATELY SUBMITTED IN WRITING AS DESCRIBED IN THE
RELEASE. YOU MIGHT WISH TO CONSULT WITH AN ATTORNEY BEFORE SIGNING
THIS DOCUMENT.
TEXTRON,
INC.
GENERAL
RELEASE OF CLAIMS
My
Employment Agreement with Textron Inc. (“
Textron
”) states that I will
receive certain payments and benefits in the event of the termination of my
employment only if I execute a general release of claims and I do not revoke the
general release during the applicable revocation period. In
consideration of the payments and benefits that I will receive under my
Employment Agreement, on behalf of myself and on behalf of any person acting by,
through, or under me (collectively, the “
Executive Releasors
”), I
hereby release, waive, and forever discharge Textron, Inc.; its current and
former subsidiaries and related entities; its and their respective past or
present officers and directors; its and their employees, fiduciaries, agents,
and insurers (but only in their capacity as employees, fiduciaries, agents, or
insurers of Textron and its current and former subsidiaries and related
entities); and the successors and assigns of each of them (collectively, the
“
Textron Releasees
”)
from any and all liability, charges, causes of action, demands, damages, or
claims for relief of any kind whatsoever, whether known or unknown at this time,
arising out of, or connected with, my employment with Textron and/or the
termination of my employment from the beginning of the world through the
effective date of this Release. The claims waived by me under this
General Release of Claims (the “
Release
”) include, but are not
limited to, all matters in law, in equity, in contract, in tort, or pursuant to
statute, including any claim for discrimination in employment on the basis of
age, race, sex, national origin, disability, religion, or any other type of
discrimination under the Age Discrimination in Employment Act (“
ADEA
”), Title VII of the Civil
Rights Act of 1964, the Americans with Disabilities Act, or other federal, state
or local law or ordinance, to the fullest extent permitted under
law.
This
Release does not apply to any claims or rights that may arise after the date I
signed this Release. I understand that Textron is not admitting to
any violation of my rights or any duty or obligation owed to me.
Exclusions
Excluded
from this Release are my claims that, by law, cannot be waived, including but
not limited to (1) the right to file a charge with or participate in an
investigation conducted by
certain government agencies including, but not limited to, the United
States Equal Employment Opportunity Commission, (2) any rights or claims to
benefits accrued under benefit plans maintained by Textron under the Employee
Retirement Income Security Act, and (3) any claims that cannot be waived under
the Fair Labor Standards Act or the Family and Medical Leave
Act. Also excluded from this Release are my claims for payments,
benefits, indemnity, contribution, exculpation, advances, and insurance that are
expressly excluded from the requirement that I execute a Release by specific
reference in my Employment Agreement with Textron. Further, nothing
set forth herein shall serve to release or waive Textron’s obligations pursuant
to and in accordance with the terms of Sections 6, 7(a), 8, 9.9(b), 9.9(c), 10,
11.1, 12, 13.6, and 13.8 of my Employment Agreement with Textron, each of which
shall survive the execution of this Release, or serve to release or waive my
right to enforce the terms of this Release.
Acknowledgements
I
acknowledge and agree to the following:
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1.
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The
benefits I am receiving under the Employment Agreement constitute
consideration over and above any benefits that I might be entitled to
receive without executing this
Release;
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2.
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Textron
advised me in writing to consult with an attorney prior to signing this
Release;
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3.
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I
was given a period of at least twenty-one (21) days within which to
consider this Release; and
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4.
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Textron
has advised me of my statutory right to revoke my agreement to this
Release at any time within seven (7) days after my signing this
Release.
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Representations
and Warranties
I warrant
and represent that my decision to sign this Release was entirely voluntary on my
part. My decision was not made in reliance on any inducement,
promise, or representation, whether express or implied, other than the
inducements, representations, and promises expressly set forth herein and in the
Employment Agreement, and my decision did not result from any threats or other
coercive activities to induce my agreement to this Release.
In
addition, I warrant and represent that neither I nor any other Executive
Releasor will sue Textron or any other Textron Releasee in any forum for any
claim covered by this Release, except that I may bring a claim under ADEA to
challenge this Release.
I further warrant and represent that I
fully understand and appreciate the consequences of my signing this
Release.
Textron further warrants and represents
that it has obtained or will obtain any approvals that are necessary for Textron
to enter into and abide by the terms of this Release.
Revocation
If I decide to exercise my right to
revoke this Release within seven (7) days after my agreement to this Release, I
warrant and represent that I will notify Textron in writing, in accordance with
the notice provisions of my Employment Agreement, of my intent to revoke this
Release, and that I will simultaneously return in full any consideration
received from Textron that was subject to the condition that I execute a general
release of claims.
Entire
Agreement
This
Release, except to the extent specifically provided otherwise herein, supersedes
any prior agreements or understandings, oral or written, between the parties
hereto with respect to the subject matter hereof and constitutes the entire
agreement of the parties with respect to the subject matter hereof.
Modification
This
Release shall not be varied, altered, modified, canceled, changed, or in any way
amended, nor any provision hereof waived, except by mutual agreement of the
parties in a written instrument executed by the parties hereto or their legal
representatives.
Successors
and Assigns
This
Release shall inure to the benefit of and be binding upon each of the parties
and their respective successors and assigns;
provided
,
however
, that neither
this Release nor any of the rights, interests, or obligations hereunder shall be
assigned by either of the parties hereto without the prior written consent of
the other party, and no assignment of any right, interest or obligation shall
release any such assigning party therefrom unless the other party shall have
consented to such release in writing specifically referring to the right,
interest or obligation from which such assigning party is to be
released. Any purported assignment in violation of this paragraph
shall be void and of no force or effect. This paragraph shall not
prevent any successor to a Textron Releasee from receiving the benefit of (and
being bound by) the Release automatically, without the need for prior written
consent by the Executive Releasors.
Governing
Law
The
provisions of this Release shall be construed and enforced in accordance with
the laws of the State of Delaware, without regard to any otherwise applicable
principles of conflicts of laws.
Counterparts
This Release may be executed in two (2)
or more counterparts, each of which shall be deemed to be an original, but all
of which together will constitute one and the same agreement.
IN
WITNESS WHEREOF, the Executive and Textron have executed this Release as of the
day and year first above written.
____________________________
[EXECUTIVE]
TEXTRON
INC.
By:
___________________________
Name:
Title:
