Exhibit 10g (xiii)
KAMAN INDUSTRIAL TECHNOLOGIES
CORPORATION
AMENDED AND
RESTATED
CHANGE IN CONTROL
AGREEMENT
THIS AGREEMENT, is made effective as of January
1, 2007 (the “Effective Date”), by and between Kaman
Industrial Technologies Corporation (the “Company”), a
subsidiary of Kaman Corporation, a Connecticut corporation (the
“Parent Company”), and T. Jack Cahill (the
“Executive”).and is amended and restated as of November
11, 2008.
WHEREAS, the
Company and the Executive are parties to the Kaman Industrial
Technologies Corporation Change in Control Agreement dated as of
September 21, 1999, as amended by an Addendum to Change in Control
Agreement dated as of September 11, 2001, and a Second Addendum to
Change in Control Agreement dated as of November 11, 2003 (the
“Prior Agreement”); and
WHEREAS, the
Company and the Executive have agreed to replace and supersede the
Prior Agreement as set forth below.
NOW, THEREFORE,
in consideration of the premises and the mutual covenants herein
contained, the Company and the Executive hereby agree as
follows:
1.
Defined Terms . Definitions of capitalized terms
used in this Agreement are provided in the last Section of this
Agreement.
2.
Term . This Agreement shall terminate on the
fifth anniversary of the Effective Date. The term of
this Agreement shall be automatically extended thereafter for
successive one (1) year periods unless, at least ninety (90) days
prior to the end of the fourth anniversary of the Effective Date or
the then current succeeding one-year extended term of this
Agreement, the Company or Executive has notified the other that the
term hereunder shall expire at the end of the then-current
term. Notwithstanding any such notice, the term of this
Agreement shall not expire before the second anniversary of a
Change in Control that occurs within the term of this
Agreement. The initial term of this Agreement, as it may
be extended under this Section 2, is herein referred to as the
“Term.”
3.
Company’s Covenants Summarized . In order
to induce the Executive to remain in the employ of the Company and
in consideration of the Executive’s continued employment, the
Company agrees, under the conditions described herein, to pay the
Executive the Severance Payments and the other payments and
benefits described in this Agreement. Except as provided
in Section 5.1 of this Agreement, no Severance Payments (as defined
in Section 5) shall be payable under this Agreement unless there
shall have been a termination of the Executive’s employment
with the Company following a Change in Control. This
Agreement shall not be construed as creating an express or implied
contract of employment and, except as otherwise agreed in writing
between the Executive and the Company, the Executive shall not have
any right to be retained in the employ of the Company.
4.
Compensation Other Than Severance Payments .
4.1 If
the Executive’s employment shall be terminated for any reason
following a Change in Control, the Company shall pay the
Executive’s full salary to the Executive through the Date of
Termination at the rate in effect immediately prior to the Date of
Termination or, if Section 18(n)(ii) is applicable as an event or
circumstance constituting Good Reason, the rate in effect
immediately prior to such event or circumstance, together with all
compensation and benefits payable to the Executive through the Date
of Termination under the terms of the Company’s compensation
and benefit plans, programs or arrangements as in effect
immediately prior to the Date of Termination (or, if more favorable
to the Executive, as in effect immediately prior to the first
occurrence of an event or circumstance constituting Good
Reason). In addition, if the Executive’s
employment is terminated for any reason following a Change in
Control other than (a) by the Company for Cause and (b) by the
Executive without Good Reason, then the Company shall pay a
pro-rata portion of the Executive’s annual bonus for the
performance year in which such termination occurs to the Executive
on the later of (x) the date that annual bonuses are generally paid
to other senior executives and (y) the date that is the first
business day after the date that is six months after the Date of
Termination. This pro-rata bonus shall be determined by
multiplying the amount the Executive would have received based upon
actual financial performance through such termination, as
reasonably determined by the Company, by a fraction, the numerator
of which is the number of days during such performance year that
the Executive is employed by the Company and the denominator of
which is 365.
4.2 If
the Executive’s employment shall be terminated for any reason
following a Change in Control, the Company shall pay to the
Executive the Executive’s normal post-termination
compensation and benefits as such payments become
due. Such post-termination compensation and benefits
shall be determined under, and paid in accordance with, the
Company’s retirement, insurance and other compensation or
benefit plans, programs and arrangements as in effect immediately
prior to the Date of Termination or, if more favorable to the
Executive, as in effect immediately prior to the occurrence of the
first event or circumstance constituting Good Reason.
5.
Severance Payments.
5.1 If
the Executive’s employment is terminated during the
twenty-four (24) month period immediately following a Change in
Control, other than (A) by the Company for Cause, (B) by reason of
death or Disability, or (C) by the Executive without Good Reason,
then the Company shall pay the Executive the amounts, and provide
the Executive the benefits described in this Section 5
(collectively, the “Severance Payments”) in addition to
any payments and benefits to which the Executive is entitled under
Section 4 of this Agreement. The Executive shall also be
entitled to Severance Payments under this Agreement if the
Executive’s employment is terminated without Cause by the
Company or by the Executive for Good Reason at any time beginning
on the first day of the 90 day period immediately prior to the
execution of a definitive purchase and sale agreement that results
in such Change in Control and the closing of such Change in
Control.
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In lieu of any
further salary payments to the Executive for periods subsequent to
the Date of Termination and in lieu of any severance benefit
payable to the Executive under the Executive’s Employment
Agreement with the Company or otherwise, the Company shall pay to
the Executive a lump sum severance payment, in cash, equal to the
sum of (i) two (2) times the Executive’s base salary as in
effect immediately prior to the Date of Termination or, if Section
18(n)(ii) is applicable as an event or circumstance constituting
Good Reason, the rate in effect immediately prior to such event or
circumstance, and (ii) two (2) times the last annual bonus paid or
awarded (to the extent not yet paid) to the Executive in the
previous three years (if any) immediately preceding the Date of
Termination, pursuant to any annual bonus or incentive plan
maintained by the Company.
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For the
twenty-four (24) month period immediately following the Date of
Termination, the Company shall arrange to provide the Executive and
his dependents medical, dental, and accidental death and
dismemberment benefits on a monthly basis that is substantially
similar to such benefits as provided to the Executive and his
dependents immediately prior to the Date of Termination or, if more
favorable to the Executive, those provided to the Executive and his
dependents immediately prior to the first occurrence of an event or
circumstance constituting Good Reason, at no greater cost to the
Executive than the cost to the Executive immediately prior to such
date or occurrence. The parties intend that the first 18
months of continued medical and dental coverage shall not
constitute a “deferral of compensation” under Treas.
Reg. Sect. 1.409A-1(b), and that continued accidental death and
dismemberment benefits hereunder shall qualify as a “limited
payment” of an “in kind” benefit under Treas.
Reg. Sect. 1.409A-1(b)(9)(v)(C) and (D). Any portion of
the continued medical, dental and accidental death and
dismemberment coverage under this Section 5.1(b) that is subject to
Section 409A is intended to qualify as a “reimbursement or
in-kind benefit plan” under Treas. Reg. Sect.
1.409A-3(i)(1)(iv). Benefits otherwise receivable by the
Executive pursuant to this Section 5.1(b) shall be reduced to the
extent benefits of the same type are received by or made available
by a subsequent employer to the Executive during the twenty-four
(24) month period following the Date of Termination (and any such
benefits received by or made available to the Executive shall be
reported to the Company by the Executive); provided, however, that
the Company shall reimburse the Executive for the excess, if any,
of the cost of such benefits to the Executive over such cost
immediately prior to the Date of Termination or, if more favorable
to the Executive, the first occurrence of an event or circumstance
constituting Good Reason. Any such reimbursement under
this Section 5.1(b) shall be made promptly in accordance with
Company policy, but in any event on or before the last day of the
Executive’s taxable year following the taxable year in which
the expense or cost was incurred. In no event shall the
amount that the Company pays for any such benefit in any one year
affect the amount that it will pay in any other year and in no
event shall the benefits described in this paragraph be subject to
liquidation or exchange.
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Notwithstanding
any provision to the contrary in any plan or agreement maintained
by or through the Company pursuant to which the Executive has been
granted restricted stock, stock options, stock appreciation rights
or long-term performance awards, effective on the Date of
Termination, (i) all service and performance based restrictions
with respect to any then unvested restricted stock shall lapse,
(ii) all stock appreciation rights and stock options shall be
deemed fully vested and then canceled in exchange for a cash
payment equal to the excess of the fair market value of the shares
of Parent Company stock subject to the stock appreciation right or
stock option on the Date of Termination, over the exercise price(s)
of such stock appreciation rights or stock options, and (iii) all
unvested long-term performance awards (each, an “LTIP
Award”) shall be deemed fully vested and fully earned and
then shall be canceled in exchange for a cash payment equal to 100%
of the target value of each such award; provided, however that, if
necessary for such compensation to qualify as
“performance-based compensation” under Section 162(m)
of the Code, an unvested Post January 1, 2009 Award (as defined
herein) shall only vest when such award would otherwise have vested
and the actual amount that the Executive shall receive with respect
to any such award will be determined by multiplying the amount the
Executive would have received based upon actual performance for the
entire period by a fraction, the numerator which is the number of
days the Executive remained employed with the Company during such
award’s performance period and the denominator of which is
the total number of days during such award’s performance
period. For purposes of this Section 5.1(c), a
“Post January 1, 2009 Award” shall mean an LTIP Award
intended to qualify as “performance-based compensation”
within the meaning of Section 162(m) of the Code with a performance
period beginning after January 1, 2009.
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In addition to
the retirement benefits to which the Executive is entitled under
any tax-qualified, supplemental or excess benefit pension plan
maintained by the Company and any other plan or agreement entered
into between the Executive and the Company which is designed to
provide the Executive supplemental retirement benefits (the
“Pension Plans”) or any successor plan thereto,
effective upon the Date of Termination, the Executive’s
Annual Benefit (as defined under the Kaman Corporation Amended and
Restated Employees' Pension Plan) shall be multiplied by a
fraction, the numerator of which is 32, and the denominator of
which is 30, for purposes of determining the Executive's benefit
under the Post-2004 Kaman Corporation Supplemental Employees’
Retirement Plan (“SERP”). The enhancement to
the SERP provided under this Section 5.1(d) shall be paid at the
same time and in the same manner as other benefits provided to the
Executive under the SERP. For avoidance of doubt, the
Severance Payments payable under this Agreement shall be
disregarded when determining the Executive’s Final Average
Salary (as defined under the Kaman Corporation Amended
and Restated Employees’ Pension Plan) for purposes of
calculating the benefits payable under the SERP as modified by this
Section 5.1(d).
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If the
Executive would have become entitled to benefits under the
Company’s post-retirement health care plans, as in effect
immediately prior to the Date of Termination or, if more favorable
to the Executive, as in effect immediately prior to the first
occurrence of an event or circumstance constituting Good Reason,
had the Executive’s employment terminated at any time during
the period of twenty-four (24) months after the Date of
Termination, the Company shall provide such post-retirement health
care benefits to the Executive and the Executive’s dependents
commencing on the later of (i) the date on which such coverage
would have first become available and (ii) the date on which
benefits described in Section 5.1 (b) terminate.
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The Company (i)
shall prepay all remaining premiums under any insurance policy
maintained by the Company insuring the life of the Executive that
is in effect and (ii) shall transfer to the Executive any and all
rights and incidents of ownership in such arrangements at no cost
to the Executive.
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The Company
shall provide the Executive with reimbursement for up to Thirty
Thousand Dollars ($30,000) in the aggregate for outplacement
services, relocation costs, or both provided however that
reimbursement shall only be provided until the earlier of the first
anniversary of the Date of Termination or the Executive’s
first day of employment with a new employer. It is
intended that reimbursements under this Section 5.1(g) shall not
constitute a “deferral of compensation” for purposes of
Section 409A of the Code pursuant to Treas. Reg. Sect.
1.409A-1(a)(9)(v)(A) and (C).
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The Executive
shall be entitled to the Company automobile provided to the
Executive immediately prior to employment termination under this
Section 5.1 at no cost for a period of six months after employment
termination (the “Car Lease
Benefit”). Notwithstanding the foregoing, the
Executive must pay the Company for the fair market value of the Car
Lease Benefit to the extent that it, when added to the cost of
continued accidental death and dismemberment coverage under Section
5.1(b) during this six month period, exceeds the applicable dollar
amount under Section 402(g)(1)(B) of the Code. It is
intended that the Car Lease Benefit qualify as a “limited
payment” of an “in-kind” benefit under Treas.
Reg. Sect. 1.409A-1(a)(9)(v)(C) and (D). The Company
shall continue to maintain an insurance policy that will cover the
Executive’s use during the period of the Car Lease
Benefit.
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On the first
business day following expiration of the Car Lease Benefit, the
Company shall transfer all of its then current rights to the
Company automobile described in Section 5.1(h) above to the
Executive.
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The Executive
acknowledges that the Car Lease Benefit (less payments by the
Executive, if any) and the Company’s transfer of its rights
to the Company automobile to the Executive will constitute taxable
compensation reportable by the Company on IRS Form W-2.
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5.2
Section 4999 Excise Tax .
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If any
payments, rights or benefits (whether pursuant to the terms of
this Agreement or any other plan, arrangement or agreement of
Executive with the Company or with any person affiliated with the
Company and whether or not the Executive’s employment has
then terminated (the “Payments”)) received or to be
received by Executive will be subject to the tax (the “Excise
Tax”) imposed by Section 4999 of the Code (or any similar tax
that may hereafter be imposed), then, except as set forth in
Section 5.2(b) below, the Company shall pay to Executive an amount
in addition to the Payments (the “Gross-Up Payment”) as
calculated below. The Gross-Up Payment shall be in an
amount such that, after deduction of any Excise Tax on the Payments
and any federal, state and local income and employment tax and
Excise Tax on the Gross-Up Payment, but before deduction for any
federal, state or local income and employment tax on the Payments,
the net amount retained by the Executive shall be equal to the
Payments.
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Notwithstanding
anything in this Agreement to the contrary, if the amount of
Payments that will be subject to the Excise Tax does not exceed the
amount of Payments that Executive could receive without having any
Payments become subject to the Excise Tax by at least $100,000,
then Executive’s taxable cash-based benefits
under this Agreement will first be reduced in the order selected by
Executive, and then, if necessary, Executive’s equity-based
compensation (based on the value of such equity-based compensation
as a “parachute payment” as defined in Treasury
Regulations promulgated under Section 280G of the Code and IRS
revenue rulings, revenue procedures and other official guidance)
shall be reduced in the order selected by Executive, and then any
other Payments shall be reduced as reasonably determined by the
Company, to the extent necessary to avoid imposition of the Excise
Tax. If Executive does not select the amount to be
reduced within the time prescribed by the Company, the reductions
specified herein shall be made by the Company in its sole
discretion from such compensation as it shall
determine. Any amount so reduced shall be irrevocably
forfeited and Executive shall have no further rights to receive
it.
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The process for
calculating the Excise Tax, determining the amount of any Gross-Up
Payment and other procedures relating to this Section 5.2 are set
forth in Appendix A attached hereto. For purposes of
making the determinations and calculations required herein, the
Consultant may rely on reasonable, good faith interpretations
concerning the application of Section 280G and 4999 of the Code,
provided that the Consultant shall make such determinations and
calculations on the basis of “substantial
authority” (within the meaning of Section 6662 of
the Code) and shall provide opinions to that effect to both the
Company and Executive.
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5.3 The
Company also shall reimburse the Executive for legal fees and
expenses incurred by the Executive in disputing in good faith any
issue hereunder relating to the termination of the
Executive’s employment or in seeking in good faith to obtain
or enforce any benefit or right provided by this
Agreement. Such payments shall be made within ten (10)
business days after delivery of the Executive’s written
request for payment accompanied with such evidence of fees and
expenses incurred as the Company reasonably may require.
5.4 The
Company shall pay the cash amounts described in subsections (a) and
(c)(iii) of Section 5.1 and shall provide the benefits described in
Section 5.1(f) and (i) to the Executive on the first business day
after the date that is six months following the Date of
Termination; provided, however, that in the case of a Post January
1, 2009 Award under Section 5.1(c)(iii), the date for payment shall
be the later of (a) the date that such award is generally paid to
other senior executives and (b) the date that is the first business
day after the date that is six months after the Date of
Termination. The cash amounts described in subsections (a) and
(c)(iii) of Section 5 shall be paid with interest at the applicable
federal rate under Section 1274 of the Code determined as of the
Date of Termination. In addition, to the extent that
payment of the pro-rata portion of the annual bonus provided for in
Section 4.1 is delayed until the date that it is the first business
day after the date that is six months following the Date of
Termination as described above, the pro-rata bonus payment shall be
credited with interest at the short-term applicable federal rate
under Section 1274 of the Code determined as of March 15th of the
year following such termination from such March 15th to the date
that payment is made to the Executive hereunder. If
payments are not made in the time frame required by this
subsection, interest on the unpaid amounts will accrue at 120% of
the rate provided in Section 1274(b)(2)(B) of the Code determined
as of the first day following the time frame provided for herein
until the date such payments are actually made. At the
time that payments are made under this Agreement, the Company shall
provide the Executive with a written statement setting forth the
manner in which such payments were calculated and the basis for
such calculations including, without limitation, any opinions or
other advice the Company has received from the Consultant or other
advisors (and any such opinions or advice which are in writing
shall be attached to the statement).
5.5
Coordination with Employment Agreement .
Severance Payments made under this Section 5
shall be in lieu of any severance benefit payable to the Executive
under the Executive’s Employment Agreement with the Company
or otherwise.
6.
Termination Procedures and Compensation During Dispute
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6.1
Notice of Termination . After a Change in
Control, any purported termination of the Executive’s
employment (other than by reason of death) shall be communicated by
written Notice of Termination from one party hereto to the other
party hereto in accordance with Section 9 of this
Agreement. For purposes of this Agreement, a
“Notice of Termination” shall mean a notice which shall
indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the
Executive’s employment under the provision so
indicated. Further, a Notice of Termination for Cause is
required to include a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters (3/4) of the
entire membership of the Board at a meeting of the Board which was
called and held for the purpose of considering such termination
(after reasonable notice to the Executive and an opportunity for
the Executive, together with the Executive’s counsel, to be
heard before the Board) finding that, in the good faith opinion of
the Board, the Executive was guilty of conduct set forth in clause
(i) or (ii) of the definition of Cause herein, and specifying the
particulars thereof in detail.
6.2
Date of Termination . “Date of
Termination,” with respect to any purported termination of
the Executive’s employment after a Change in Control, shall
mean (i) if the Executive’s employment is terminated for
Disability, thirty (30) days after Notice of Termination is given
(provided that the Executive shall not have returned to the
full-time performance of the Executive’s duties during such
thirty (30) day period), and (ii) if the Executive’s
employment is terminated for any other reason, the date specified
in the Notice of Termination (which, in the case of a termination
by the Company, shall not be less than thirty (30) days (except in
the case of a termination for Cause) and, in the case of a
termination by the Executive, shall not be less than fifteen (15)
days nor more than sixty (60) days, respectively, from the date
such Notice of Termination is given). For purposes of
determining the date on which to make the severance payments
described under Section 5.4, a “Date of Termination”
shall only occur upon the Executive’s “separation from
service” within the meaning of Section 409A of the Code and
as determined after applying the presumptions set forth in Treas.
Reg. Section 1.409A-1(h)(1).
6.3
Dispute Concerning Termination . If within
fifteen (15) days after any Notice of Termination is given, or, if
later, prior to the Date of Termination (as determined without
regard to this Section 6.3), the party receiving such Notice of
Termination notifies the other party that a dispute exists
concerning the termination, the Date of Termination shall be
extended until the date on which the dispute is finally resolved,
either by mutual written agreement of the parties or by a final
judgment, order or decree of an arbitrator or a court of competent
jurisdiction (which is not appealable or with respect to which the
time for appeal therefrom has expired and no appeal has been
perfected); provided, however, that the Date of Termination shall
be extended by a notice of dispute given by the Executive only if
such notice is given in good faith and the Executive pursues the
resolution of such dispute with reasonable diligence.
6.4
Compensation During Dispute . If a purported
termination occurs following a Change in Control and the Date of
Termination is extended in accordance with Section 6.3 of this
Agreement, the Company shall continue to pay the Executive the full
compensation in effect when the notice giving rise to the dispute
was given (including, but not limited to, salary) and continue the
Executive as a participant in all compensation, benefit and
insurance plans in which the Executive was participating when the
notice giving rise to the dispute was given, until the Date of
Termination, as determined in accordance with Section 6.3 of this
Agreement. Amounts paid under this Section 6.4 are in
addition to all other amounts due under this Agreement (other than
those due under Section 4.1 of this Agreement) and shall not be
offset against or reduce any other amounts due under this
Agreement. Notwithstanding anything to the contrary in
Section 6.3 and 6.4, if the Company, after delivery of a Notice of
Termination, promptly (and in any event within 30 days) determines
that grounds existed prior to the delivery of the Notice of
Termination to terminate the Executive’s employment for Cause
after complying with the procedural requirements of this Agreement,
the Company shall have the right to recover any payments that have
been made to the Executive or on the Executive’s behalf under
this Agreement including but not limited to offset against or
reduction of any amounts due under this Agreement or
otherwise.
7.
No Mitigation . The Company agrees that under
this Agreement, if the Executive’s employment with the
Company terminates, the Executive is not required to seek other
employment or to attempt in any way to reduce any amounts payable
to the Executive by the Company pursuant to Section 5 of this
Agreement or Section 6.4 of this Agreement. Further,
the
amount of any
payment or benefit provided for in this Agreement (other than as
specifically provided in Section 5.1(b) of this Agreement) shall
not be reduced by any compensation earned by the Executive as the
result of employment by another employer, by retirement benefits,
by offset against any amount claimed to be owed by the Executive to
the Company, or otherwise.
8.
Successors; Binding Agreement .
8.1 In
addition to any obligations imposed by law upon any successor to
the Company, the Company will require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the
Company to expressly assume and agree to perform this Agreement in
accordance with its terms.
8.2 This
Agreement shall inure to the benefit of and be enforceable by the
Executive’s personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees. If the Executive shall die while any amount
would still be payable to the Executive hereunder (other than
amounts which, by their terms, terminate upon the death of the
Executive) if the Executive had continued to live, all such
amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to the executors,
personal representatives or administrators of the Executive’s
estate.
9.
Notice . For the purpose of this Agreement,
notices and all other communications provided for in this Agreement
shall be in writing and shall be deemed to have been duly given (a)
on the date of delivery if delivered by hand, (b) on the date of
transmission, if delivered by confirmed facsimile, (c) on the first
business day following the date of deposit if delivered by
guaranteed overnight delivery service, or (d) on the fourth
business day following the date delivered or mailed by United
States registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
If to the
Executive: at the address (or to the facsimile number) shown on the
records of the Company.
If to the
Company: Kaman Corporation, 1332 Blue Hills Avenue, P.O. Box 1,
Bloomfield, CT 06002 - Attention: Chief Legal Officer (Facsimile
No.: 860 243-7397), or to such other address as either party may
have furnished to the other in writing in accordance herewith,
except that notices of change of address shall be effective only
upon receipt.
10.
Obligations after the Date of Termination.
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Confidentiality . The Executive agrees that the
Executive shall not, directly or indirectly, use, make available,
sell, disclose or otherwise communicate to any person, other than
in the course of the Executive’s employment and for the
benefit of the Parent Company and the Company, at any time
following the Date of Termination, any nonpublic, proprietary or
confidential information, knowledge or data relating to the Parent
Company or the Company, any of their subsidiaries, affiliated
companies or businesses, which shall have been obtained by the
Executive during the Executive’s employment by the
Company. The foregoing shall not apply to information
that (i) was known to the public prior to its disclosure to the
Executive; (ii) becomes known to the public subsequent to
disclosure to the Executive through no wrongful act of the
Executive or any representative of the Executive; or (iii) the
Executive is required to disclose by applicable law, regulation or
legal process (provided that the Executive provides the Parent
Company and the Company with prior notice of the contemplated
disclosure and reasonably cooperates with the Parent Company and
the Company at their expense in seeking a protective order or other
appropriate protection of such
information). Notwithstanding clauses (i) and (ii) of
the preceding sentence, the Executive’s obligation to
maintain such disclosed information in confidence shall not
terminate where only portions of the information are in the public
domain.
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Non-Solicitation . In the event that the Executive
receives Severance Payments under Section 5 of this Agreement, the
Executive agrees that for the two (2) year period following the
Date of Termination, the Executive will not, directly or
indirectly, individually or on behalf of any other person, firm,
corporation or other entity, knowingly solicit, aid or induce any
managerial level employee of the Parent Company or the Company or
any of their subsidiaries or affiliates to leave such employment in
order to accept employment with or render services to or with any
other person, firm, corporation or other entity unaffiliated with
the Parent Company or the Company or knowingly take any action to
materially assist or aid any other person, firm, corporation or
other entity in identifying or hiring any such employee (provided,
that the foregoing shall not be violated by general advertising not
targeted at Parent Company or Company employees nor by serving as
a
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