Exhibit 99.1
June 28, 2005
VIA FACSIMILE AND
OVERNIGHT COURIER
Kaman Corporation
Attention: Candace A. Clark,
Senior Vice President,
Chief Legal Officer
and Secretary
1332 Blue Hills Avenue
Bloomfield, Connecticut 06002
Ladies and Gentlemen:
Reference is made to that certain Agreement, dated as of
June 7, 2005, by and among (a) Kaman Corporation (the "Company"), (b) Newgate
Associates Limited Partnership, in its capacity as a shareholder of the
Company ("Newgate"), (c) Oldgate Limited Partnership, in its capacity as a
shareholder of the Company ("Oldgate"), (d) Charles H. Kaman, in his capacity
as a shareholder of the Company, (e) C. William Kaman II, in his capacity as
(i) a shareholder of the Company, (ii) the sole general partner of Newgate and
Oldgate, (iii) a voting trustee (a "Voting Trustee") under the Voting Trust
Agreement, dated August 14, 2000 and as amended as of June 7, 2005, (iv) an
attorney-in-fact (a "DPA Attorney-in-Fact") under a Durable Power of Attorney,
dated May 4, 1996 and (v) the trustee on behalf of his children, Charles Tyson
Kaman and Kathryn S. Kaman, as shareholders of the Company, (f) Roberta C.
Kaman, in her capacity as (i) a shareholder of the Company, (ii) a DPA
Attorney-in-Fact and (iii) a Voting Trustee, (g) Steven W. Kaman, in his
capacity as (i) a shareholder of the Company, (ii) a DPA Attorney-in-Fact,
(iii) a Voting Trustee and (iv) the trustee on behalf of his child, Cameryn H.
Kaman, as a shareholder of the Company, and (h) Cathleen H. Kaman, in her
capacity as (i) a shareholder of the Company, (ii) a DPA Attorney-in-Fact,
(iii) a Voting Trustee and (iv) the trustee on behalf of her child, Zane N.
Kaman-Wood, as a shareholder of the Company (the "Agreement"). All terms in
this letter shall be given the same definitions as are contained in the
Agreement.
In accordance with Section 14(a)(iv) of the Agreement, the
Shareholders, having previously notified the Company that they were in
discussions regarding a possible Qualifying Alternative Transaction, hereby
notify the Company that the Shareholders intend to terminate the Agreement to
complete such Qualifying Alternative Transaction.
The Shareholders hereby certify that the transaction has
been entered into with a good faith intention that it will be completed on the
stated terms promptly in the event that the Company were not to announce a
Substitute Recapitalization Proposal.
Enclosed as Exhibit A is the Securities Purchase Agreement
by and among MK Investments LLC, Mason Capital Management LLC and the
Shareholders and which is a complete and accurate copy of all agreements
between the Shareholders and the Third Party Offeror relating to the proposed
transaction. Enclosed as Exhibit B is a letter dated today from MK Investments
LLC addressed to the Company containing certain certifications. While not
required under the Agreement, enclosed as Exhibit C is a letter dated June 23,
2005 from Marjorie Boliscar of Goldman, Sachs & Co. to Mason Capital
Management LLC relating to the financial resources available to Mason Capital
Management LLC.
The Shareholders' calculation of the Class B Share Deemed
Value for the purpose of the proposed transaction is $55.00 per share.
To the knowledge of the Shareholders, no Claims have been
made as of the date hereof.
Sincerely,
/s/ John C. Yavis, Jr.
----------------------------------
John C. Yavis, Jr., as
attorney-in-fact on behalf of
Charles H. Kaman and as
authorized representative on
behalf of the other Shareholders
/s/ Thomas J. Groark, Jr.,
---------------------------------
Thomas J. Groark, Jr., as
authorized representative on
behalf of the Shareholders other
than Charles H. Kaman
cc: Eileen S. Kraus
Randall H. Doud, Esq.
EXHIBIT A
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (this "Agreement"), dated as of
June 28, 2005 (the "Effective Date"), is made by and among (i) MK Investments
LLC, a Delaware limited liability company ("Buyer") and Mason Capital
Management LLC, a Delaware limited liability company ("Mason"), on the one
hand, and (ii) Newgate Associates Limited Partnership, a Connecticut limited
partnership ("Newgate"), in its capacity as a shareholder of Kaman
Corporation, a Connecticut corporation (the "Company"), Oldgate Limited
Partnership, a Connecticut limited partnership ("Oldgate"), in its capacity as
a shareholder of the Company, Charles H. Kaman ("Kaman"), in his capacity as a
shareholder of the Company, C. William Kaman II ("CWK"), in his capacity as
(A) as a shareholder of the Company, (B) the sole general partner of Newgate
and Oldgate, (C) a voting trustee (a "Voting Trustee") under the Voting Trust
Agreement, dated August 14, 2000 and as amended as of June 7, 2005 (as so
amended, the "Voting Trust Agreement"), (D) an attorney-in-fact (a "DPA
Attorney-in-Fact") under a Durable Power of Attorney, dated May 4, 1996 (the
"Durable Power of Attorney"), and (E) the trustee on behalf of his children,
Charles Tyson Kaman ("CTK") and Kathryn S. Kaman ("KSK"), as shareholders in
the Company, Roberta C. Kaman ("RCK"), in her capacity as (A) a shareholder of
the Company, (B) a DPA Attorney-in-Fact, and (C) a Voting Trustee, Steven W.
Kaman ("SWK"), in his capacity as (A) a shareholder of the Company, (B) a DPA
Attorney-in-Fact, (C) a Voting Trustee and (D) the trustee on behalf of his
child, Cameryn H. Kaman, as a shareholder of the Company, and Cathleen H.
Kaman ("CHK"), in her capacity as (A) a shareholder of the Company, (B) a DPA
Attorney-in-Fact, (C) a Voting Trustee and (D) the trustee on behalf of her
child, Zane N. Kaman-Wood, as a shareholder in the Company, on the other hand
(such persons, collectively, the "Shareholders" and each, a "Shareholder").
RECITALS
--------
Whereas, the Shareholders and the Company have entered into that
certain agreement, dated June 7, 2005 (the "Recapitalization
Agreement"), and, unless otherwise defined herein or the context
otherwise requires, capitalized terms used and not defined herein
shall have the meanings assigned to them in the Recapitalization
Agreement.
Whereas, the Recapitalization Agreement provides for the sale by the
Shareholders of the Covered Class B Shares to a third party in a
Qualifying Alternative Transaction;
Whereas, Buyer desires to purchase all of the issued and outstanding
shares of Class B Stock, including, without limitation, the Covered
Class B Shares, and the Shareholders desire to sell and transfer to
Buyer the Covered Class B Shares;
Whereas, the Shareholders and Buyer intend the transaction
contemplated by this Agreement to meet the requirements of a
Qualifying Alternative Transaction; and
Whereas, this Agreement is contemplated by and fully consistent with
the Recapitalization Agreement.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained in this Agreement, the parties agree as follows:
1. Sale of Covered Class B Shares. Upon the terms and subject to the
conditions contained in this Agreement, the Shareholders hereby agree to sell,
convey, transfer, assign and deliver to Buyer, and Buyer hereby agrees to
purchase from the Shareholders, all of Shareholders' right, title and interest
in and to the Covered Class B Shares for a purchase price of $55.00 per share
in cash (the "Purchase Price").
2. Closing. The consummation of the transactions contemplated hereby (such
consummation being referred to herein as the "Closing") shall take place at
the offices of Kirkland & Ellis LLP, 153 East 53rd Street, New York, New York,
10022, at or about 10:00 a.m. local time, on the Closing Date. The Closing
Date shall be the date three business days after the earlier of the date that
(a) the Company notifies the Shareholders that the Board has determined not to
approve a Substitute Recapitalization Proposal or (b) the Shareholders
otherwise may sell the Covered Class B Shares to Buyer without restriction
under the Recapitalization Agreement (such date and time, or such other
earlier date and time as Buyer and the Shareholders may mutually determine,
being referred to herein as the "Closing Date").
3. Payment of Purchase Price. As payment in full for the Covered Class B
Shares being purchased by it under this Agreement, Buyer shall deliver on the
Closing Date to Shareholders by wire transfer of immediately available funds
to an account designated in writing by Shareholders, the sum of the amounts
set forth opposite the Shareholders' names on Schedule A.
4. Transfer of Covered Class B Shares. Shareholders shall deliver to Buyer on
the Closing Date one or more stock certificates representing the Covered Class
B Shares as set forth on Schedule A, accompanied by separate stock powers
executed in blank and instructions for the transfer of such Covered Class B
Shares to Buyer.
5. Title to the Covered Class B Shares. The Shareholders, severally and not
jointly, represent and warrant to Buyer that, as of the Closing Date, the
Shareholders shall have, and after delivery of the Covered Class B Shares and
payment therefor pursuant hereto shall vest in Buyer, valid title to the
Covered Class B Shares, subject to no liens or transfer restrictions other
than those created by Buyer hereunder or imposed by the securities laws.
6. Representations and Warranties of Buyer. Each of Buyer and Mason represents
and warrants to the Shareholders as of the date hereof and as of the Closing
Date as follows:
(a) Authorization; Enforcement. Each of Buyer and Mason has all
requisite power and authority to authorize, execute, deliver and perform this
Agreement. The execution, delivery and performance by Buyer and Mason of this
Agreement, and the consummation by Buyer and Mason of the transactions
contemplated hereby, have been duly authorized by all necessary action on the
part of Buyer and Mason and no further consent or authorization therefor is
presently required by Buyer or Mason. This Agreement has been duly and validly
executed and delivered by Buyer and Mason and constitutes the valid and
binding obligations of Buyer and Mason, enforceable against Buyer and Mason in
accordance with its terms.
(b) No Conflicts. None of the execution, delivery or performance of
this Agreement by Buyer and Mason will conflict with the organizational
documents of Buyer or Mason, in each ease as in effect on the date hereof, or
result in any material breach of, or constitute a material default under, any
(i) material contract, agreement or instrument to which Buyer or Mason is a
party or by which it or any of its assets is bound or (ii) material law or
regulation to which Buyer, Mason or any of their respective assets is subject.
(c) Consents; Approvals. Other than any filings required pursuant to
the Exchange Act, neither the execution, delivery or performance by Buyer or
Mason of this Agreement, nor the consummation by it of the obligations and
transactions contemplated hereby, requires any consent or approval of,
authorization by, exemption from, filing with or notice to any governmental
entity or any other person.
7. Indemnification.
---------------
(a) Indemnification for Shareholders' Benefit. Each of Buyer and
Mason hereby agrees that it will indemnify and hold harmless the Shareholders
and each of their respective affiliates (other than the Company), partners,
employees, owners, representatives, agents, heirs, executors, administrators,
successors, assigns and controlling persons (collectively, the "Indemnified
Parties") from and against any loss, liability, claim, damage or expense
(including, without limitation, reasonable attorney's fees) ("Loss"), whether
or not involving a third party claim, arising, directly or indirectly, from or
in connection with, or in respect of, (i) the authorization, execution,
delivery or performance of this Agreement (including, without limitation,
claims relating to the Recapitalization Agreement) by the Shareholders or the
sale by the Shareholders of the Covered Class B Shares hereunder and (ii) any
action or inaction by Buyer, Mason or their respective affiliates related to
Buyer's investment in the Company or Buyer's purchase, ownership or control,
or Mason's beneficial ownership or indirect control, of the Covered Class B
Shares and the Company. Nothing set forth in this Section 7 shall be deemed to
be exclusive of any other rights or remedies that the parties may have in
respect of the subject matter of this Section 7, whether by law, contract or
otherwise. Mason and Buyer shall have no obligation to indemnify any
Indemnified Party pursuant to this Section 7 if Buyer is prevented from
purchasing the Covered Class B Shares in accordance with this Agreement for
any reason other than as a result of a breach of this Agreement by Mason or
Buyer, and Mason's and Buyer's obligation to pay for or fund any
indemnification claim (including any such claim for attorney's fees or other
defense costs) shall arise only upon the Closing unless the Closing is
prevented as a result of such a breach.
(b) Matters Involving Third Parties.
-------------------------------
(i) If any third party shall notify any Indemnified
Party with respect to any matter (a "Third Party Claim") which may
give rise to a claim for indemnification against Buyer under this
Section 7, then the Indemnified Party shall promptly notify Buyer
thereof in writing; provided, however, that no delay on the part of
the Indemnified Party in notifying Buyer shall relieve Buyer from any
obligation hereunder unless (and then solely to the extent) Buyer
thereby is prejudiced.
(ii) From and after the Closing, Buyer will have
the right to defend the Indemnified Party against the Third Party
Claim with counsel of its choice reasonably satisfactory to the
Indemnified Party (regardless of whether the Indemnified Party shall
have commenced defending itself with respect to any Third Party Claim
because the claim was made prior to the Closing or for any other
reason) so long as (A) Buyer notifies the Indemnified Party in
writing within 15 days after the later of (x) the Closing Date and
(y) the date upon which the Indemnified Party gives written notice to
Buyer or Mason of the existence of a Third Party Claim for which the
Indemnified Party may seek indemnification under this Section 7;
provided, that Buyer shall have acknowledged in writing to the
Indemnified Party that Buyer will indemnify the Indemnified Party
from and against any and all Losses indemnifiable under this Section
7 arising out of, relating to, in the nature of, or caused by the
Third Party Claim, (B) Buyer provides the Indemnified Party with
evidence reasonably acceptable to the Indemnified Party that Buyer
will have the financial resources to defend against the Third Party
Claim and fulfill its indemnification obligations hereunder, and (C)
Buyer conducts the defense of the Third Party Claim actively and
diligently. If Buyer elects to defend the Indemnified Party against
the Third Party Claim as provided in the previous sentence, Buyer
shall not agree to the entry of any judgment or enter into any
settlement unless it (x) includes an unconditional release of the
Indemnified Party, in form and substance reasonably satisfactory to
the Indemnified Party, from all liability with respect to the claims
that are the subject matter of such proceeding and (y) does not
include any equitable remedies against the Indemnified Party or
express acknowledgement as to the fault, culpability or a failure to
act by or on behalf of the Indemnified Party.
(iii) So long as Buyer is conducting the defense of
the Third Party Claim in accordance with Section 7(b)(ii) above, (A)
the Indemnified Party may retain separate co-counsel at its sole cost
and expense and participate in the defense of the Third Party Claim;
provided, however, if there is a conflict of interest between the
positions of Buyer and the Indemnified Party in conducting the
defense of the Third Party Claim as determined under the ABA Model
Rules of Professional Conduct in the good faith judgment of the
Indemnified Party, then the Indemnified Party shall be entitled to
retain a single, separate counsel at the expense of Buyer, and (B)
the Indemnified Party will not consent to the entry of any judgment
or enter into any settlement with respect to the Third Party Claim
without the prior written consent of Buyer.
(iv) If Buyer elects not to conduct the defense of
the Third Party Claim or fails to conduct the defense of the Third
Party Claim in accordance with Section 7(b)(ii) above, then the
Indemnified Party shall have the right (A) to conduct the defense of
the Third Party Claim at the expense of Buyer and (B) consent to the
entry of judgments and enter into settlements with respect to the
Third Party Claim in its reasonable discretion.
8. Closing Condition. The obligations of Buyer under this Agreement to
purchase the Covered Class B Shares are subject solely to the delivery to
Buyer at the Closing of title to the Covered Class B Shares, subject to no
liens or transfer restrictions other than those created by Buyer or imposed by
the securities laws.
9. Termination. This Agreement may be terminated:
(a) By Buyer prior to the Closing Date by giving written notice to
the Shareholders only in the event of (i) a Covered Act of God, the first
public disclosure or written notice to Buyer of which occurs after the giving
of the QAT Termination Notice and prior to the giving of the last
Reaffirmation by Buyer, or (ii) the Company entering into a Company Action,
the first public disclosure or written notice to Buyer of which occurs after
the giving of the QAT Termination Notice.
(b) By the Shareholders prior to the Closing Date by giving written
notice to Buyer only if the Shareholders receive a Substitute Recapitalization
Proposal during the Match Period, if the Arbiter determines that the
transactions contemplated hereby do not constitute a Qualifying Alternative
Transaction or if the Shareholders can pursue no course of action pursuant to
the Recapitalization Agreement (other than seeking amendment or waiver of its
provisions) that could result in the Closing. For the avoidance of doubt, (i)
it shall not be a breach by the Shareholders of this Agreement for the Company
to make and consummate a Substitute Recapitalization Proposal, and (ii) the
parties hereto believe the transaction contemplated by this Agreement is a
Qualifying Alternative Transaction.
10. Undertaking. Buyer hereby undertakes and agrees:
(a) in accordance with clause (iii) of the first sentence of
Paragraph 14(c) of the Recapitalization Agreement, to commence, promptly, but
in any case no later than three business days, following the Closing, an offer
to purchase at the Purchase Price not less than all of the outstanding shares
of Class B Stock (including shares held by persons other than the
Shareholders); and
(b) in accordance with clause (vii) of the first sentence of
Paragraph 14(c) of the Recapitalization Agreement, that the offer to holders
of Class B Stock other than the Shareholders will comply with any relevant
securities laws and that Buyer will accept such shares for purchase as
promptly as the securities laws permit.
11. Certifications. In accordance with clause (i) of the second sentence of
Paragraph 14(c) of the Recapitalization Agreement:
(a) the Shareholders, Buyer and Mason each hereby certify to the
Company that as at the Effective Date, and shall certify as at the time of
delivery of the QAT Termination Notice to the Company, that the transaction
contemplated hereby has been entered into with a good faith intention that it
be completed on the stated terms promptly in the event that the Company were
not to announce a Substitute Recapitalization Proposal; and
(b) Buyer and Mason jointly certify to the Company as to the
sufficiency and prompt availability of funds required to consummate the
transactions contemplated hereby.
12. Governing Law. This Agreement shall be governed by the laws of the State
of Connecticut applicable to agreements made and to be fully performed
therein, excluding choice of law principles that would require the application
of the laws of a jurisdiction other than the State of Connecticut. All actions
and proceedings regarding the rights and obligations under this Agreement
shall be heard and determined in any Connecticut state or federal court
sitting in the City of Hartford.
13. Notices. All notices to be given or otherwise made to any party to this
Agreement shall be deemed to be sufficient if contained in a written
instrument, delivered by hand in person, or by express overnight courier
service, or by electronic facsimile transmission (with a copy sent by first
class mail, postage prepaid), or by registered or certified mail, return
receipt requested, postage prepaid, addressed to such party at the address set
forth below or at such other address as may hereafter be designated in writing
by the addressee to the addresser listing all parties:
If to Buyer: MK Investments LLC
Attn: Michael E. Martino
110 East 59th Street
30th Floor
New York, New York 10022
Fax: (212) 644-4264
with a copy (which shall not
constitute notice) to:
Kirkland & Ellis LLP
Attn: Stephen Fraidin, Esq.
153 East 53rd Street
New York, New York 10022
Fax: (212) 446-6460
If to Shareholders: Murtha Cullina LLP
Attn: John C. Yavis, Jr., Esq.
Attn: Charles E. Drummey, Esq.
CityPlace I
185 Asylum Street
Hartford, Connecticut 06103
Fax: (860) 240-6150
and
Dechert LLP
Attn: Martin Nussbaum, Esq.
30 Rockefeller Plaza
New York, New York 10112
Fax: (212) 698-3599
and
Day, Berry & Howard LLP
Attn: Thomas J. Groark, Jr., Esq.
CityPlace I
Hartford, Connecticut 06103
Fax: (860) 275-0343
All such notices shall, when mailed or sent via facsimile, be effective when
received or when attempted delivery is refused.
14. Entire Agreement and Amendments. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof and may not
be modified, amended or terminated except by an agreement signed by the
parties hereto and except, with respect to termination, as otherwise provided
herein. This Agreement supersedes all prior agreements and understandings,
oral and written, with respect to the subject matter hereof.
15. Severability. If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any
manner affect or render illegal, invalid or unenforceable any other severable
provision of this Agreement, and this Agreement shall be carried out as if any
such illegal, invalid or unenforceable provision were not contained herein.
16. Counterparts. This Agreement may be executed in one or more counterparts,
including by electronic facsimile transmission, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument.
17. Specific Performance. Buyer, on the one hand, and the Shareholders, on the
other hand, hereby acknowledge and agree that money damages would not be a
sufficient remedy for any breach of any provision of this Agreement by the
other. In such event each agrees that the other party shall have the right, in
addition to any other rights it may have (whether at law or in equity), to
seek specific performance and injunctive or other equitable relief as a remedy
for any such breach of this Agreement. No failure or delay by any party hereto
in exercising any right, power or privilege hereunder will operate as a waiver
thereof, nor will any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege hereunder.
18. Further Assurances. Subject to the terms and conditions of this Agreement,
Buyer and the Shareholders will use their reasonable best efforts to take, or
cause to be taken, all actions and to do, or cause to be done, all things
necessary or desirable under the Recapitalization Agreement and applicable
laws and regulations to consummate the transactions contemplated by this
Agreement. Buyer and the Shareholders agree to execute and deliver such other
documents, certificates, agreements and other writings to consummate or
implement the transactions contemplated by this Agreement in a timely manner.
19. No Third-Party Beneficiaries. This Agreement is not intended and shall not
be deemed to confer upon or give any person, except the parties hereto and
their respective heirs, executors, successors and assigns and except for the
holders of Class B Stock other than the Shareholders with respect to Section
10 and except for the Company with respect to the certifications set forth in
Section 11, any remedy, claim, liability, reimbursement, cause of action or
other right under or by reason of this Agreement.
20. Fees and Expenses. Whether or not the transactions contemplated hereby are
consummated pursuant hereto, each party hereto shall pay all fees and expenses
incurred by it or on its behalf in connection with this Agreement, and the
consummation of the transactions contemplated hereby.
22. Interpretation. The article and section headings contained in this
Agreement are solely for the purpose of reference, are not part of the
agreement of the parties and shall not in any way affect the meaning or
interpretation of this Agreement. As used in this Agreement, the term "person"
shall mean and include an individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an unincorporated
organization and a government or any department or agency thereof.
23. Binding Effect; Assignment. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, executors, successors and assigns. The rights and
obligations of any party hereto may not be assigned without the prior written
consent of the other parties hereto.
24. Time of the Essence. Each of the Shareholders, Buyer and Mason hereby
agree that time is of the essence for each and every provision of this
Agreement.
25. Sophisticated Purchaser. Buyer and Mason hereby jointly and severally:
(a) represent and warrant that each of Mason and, as of the Closing
Date, Buyer (i) is able to bear the risks attendant to the transactions
contemplated hereby for an indefinite period, (ii) is dealing with the
Shareholders on a professional arms-length basis and neither the Shareholders
nor any of their respective affiliates or representatives is acting as a
fiduciary or advisor to Buyer or Mason with respect to this Agreement and any
of the transactions contemplated hereby, and (iii) has expertise in assessing
tax, legal, jurisdictional and regulatory risk;
(b) represent and warrant that (i) each of Mason and, as of the
Closing Date, Buyer has itself been, and will continue to be, solely
responsible for making its own independent appraisal of and investigations
into, and in connection with this Agreement and the transactions contemplated
hereby it has made such an independent appraisal of and investigation into,
the financial condition, creditworthiness, affairs, status and nature of the
Company and its related companies and it has not relied, and will not
hereafter rely, on the Shareholders or any affiliate, representative or agent
of the Shareholders or any other third party with respect to such matters or
to update them with respect to such matters or to keep such matters under
review on its behalf, and (ii) without limiting the foregoing, each of Mason
and Buyer has not relied, and will not hereafter rely, on the Shareholders or
any affiliate, representative or agent of the Shareholders or any other third
party with respect to information relating to or in any way affecting the
shares of Class B Stock;
(c) represent and warrant that (i) Buyer is receiving the transfer of
the Covered Class B Shares hereunder for investment purposes, and not with a
view to, or for a resale in connection with, any distribution of such Covered
Class B Shares and (ii) each of Buyer and Mason has not entered into any
agreement, contract, understanding or commitment to and has no present
intention to offer, sell, transfer or otherwise dispose of any portion of such
Covered Class B Shares either currently or after the passage of a fixed or
determinable period of time or upon the occurrence or non-occurrence of any
predetermined event or circumstance and has not offered for sale or entered
into any negotiations for the sale or transfer of any of the Covered Class B
Shares;
(d) represent and warrant that each of Buyer and Mason understands
that the Covered Class B Shares have not been registered under the Securities
Act;
(e) represent and warrant that each of Buyer and Mason is an
"accredited investor," as that term is defined in Regulation D promulgated
under the Securities Act;
(f) represent and warrant that Buyer and Mason are sophisticated and
experienced investors, with experience in buying and selling securities and
the ability to evaluate the merits and risks of a purchase of the Covered
Class B Shares;
(g) represent and warrant that Buyer and Mason have had the
opportunity to do due diligence concerning the Company based on publicly
available information, including reports filed by the Company with the U.S.
Securities and Exchange Commission, and Buyer and Mason are content to rely on
such due diligence in making an investment decision concerning the Covered
Class B Shares;
(h) understand that the Company may engage in various transactions
that could affect the value of the Covered Class B Shares;
(i) understand that one or more of the Shareholders, including,
without limitation, C. William Kaman, II, is or may be an "affiliate" of the
Company within the meaning of federal and state securities laws;
(j) understand that the Company and/or its affiliates may now or at
any other time have material nonpublic information that could affect the value
of the Covered Class B Shares and that this information has not been, and may
not be in the future, made available to Buyer or Mason;
(k) represent and warrant that Buyer and Mason are acting on their
own behalf and not for the account of others; and
(l) hereby release and forever discharge the Shareholders, their
respective partners, employees and agents, and their respective successors and
assigns, from any and all claims, demands, causes of action, damages, losses,
expenses or liabilities, of any nature whatsoever, whether accrued or
unaccrued, contingent or liquidated, known or unknown, arising from or
connected to any failure to disclose to Buyer or Mason any information
concerning the Company, including, without limitation, nonpublic information
in connection with any purchase of any of the Covered Class B Shares.
26. General. If any one or more of the provisions contained in this Agreement
is for any reason held to be not compliant in any respect with a Qualifying
Alternative Transaction, it is the intention of the parties that there shall
be substituted for such non-compliant provision a provision as similar in
intent and economic effect to such provision as may be possible and yet have
such provision still comply with the terms of a Qualifying Alternative
Transaction.
27. Mason. Mason hereby unconditionally and irrevocably guarantees the
obligations hereunder of Buyer and of any affiliate of Buyer to which Buyer
transfers its obligations hereunder.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date
first above written.
SHAREHOLDERS:
NEWGATE ASSOCIATES LIMITED
PARTNERSHIP,
by its sole General Partner
By: /s/ C. William Kaman II
-----------------------------
Name: C. William Kaman II
Title: General Partner
OLDGATE ASSOCIATES LIMITED
PARTNERSHIP,
by its sole General Partner
By: /s/ C. William Kaman II
-----------------------------
Name: C. William Kaman II
Title: General Partner
CHARLES H. KAMAN, by his
Attorney-in-Fact under the
General Power of Attorney,
dated February 11, 1998
By:
-----------------------------
Name: John C. Yavis, Jr.
Title: Attorney-in-Fact
ROBERTA C. KAMAN, in her
capacity as an Attorney-in-Fact
under the Durable Power of
Attorney, dated May 4, 1996
By:
-----------------------------
Name: Roberta C. Kaman
Title: Attorney-in-Fact
[Signature page to Securities Purchase Agreement]
IN WITNESS WHEREOF, this Agreement has been executed as of the date
first above written.
SHAREHOLDERS:
NEWGATE ASSOCIATES LIMITED
PARTNERSHIP,
by its sole General Partner
By:
-----------------------------
Name: C. William Kaman II
Title: General Partner
OLDGATE ASSOCIATES LIMITED
PARTNERSHIP,
by its sole General Partner
By:
--------------------------------
Name: C. William Kaman II
Title: General Partner
CHARLES H. KAMAN, by his
Attorney-in-Fact under the
General Power of Attorney,
dated February 11, 1998
By: /s/ John C. Yavis, Jr.
--------------------------------
Name: John C. Yavis, Jr.
Title: Attorney-In-Fact
ROBERTA C. KAMAN, in her
capacity as an Attorney-in-Fact
under the Durable Power of
Attorney, dated May 4, 1996
By: /s/ Roberta C. Kaman
-----------------------------
Name: Roberta C. Kaman
Title: Attorney-in-Fact
[Signature page to Securities Purchase Agreement]
IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
SHAREHOLDERS:
ROBERTA C. KAMAN, in her capacity
as a Voting Trustee under the
Voting Trust Agreement, dated
August 14, 2000 and as amended
as of June 7, 2005
By: /s/ Roberta C. Kaman
-----------------------------
Name: Roberta C. Kaman
Title: Voting Trustee
ROBERTA C. KAMAN, in her
individual capacity
By: /s/ Roberta C. Kaman
-----------------------------
Name: Roberta C. Kaman
C. WILLIAM KAMAN II, in his
capacity as an Attorney-in-Fact
under the Durable Power of
Attorney, dated May 4,1996
By:
-----------------------------
Name: C. William Kaman II
Title: Attorney-in-Fact
C. WILLIAM KAMAN II, in his
capacity as a Voting Trustee
under the Voting Trust
Agreement, dated August 14,
2000 and as amended as of June
7, 2005
By:
-----------------------------
Name: C. William Kaman II
Title: Voting Trustee
C. WILLIAM KAMAN II, in
his individual capacity
By:
-----------------------------
Name: C. William Kaman II
[Signature page to Securities Purchase Agreement]
IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
SHAREHOLDERS:
ROBERTA C. KAMAN, in her
capacity as a Voting Trustee
under the Voting Trust
Agreement, dated August 14,
2000 and as amended as of June
7, 2005
By:
-----------------------------
Name: Roberta C. Kaman
Title: Voting Trustee
ROBERTA C. KAMAN, in her
individual capacity
By:
-----------------------------
Name: Roberta C. Kaman
C. WILLIAM KAMAN II, in his
capacity as an Attorney-in-Fact
under the Durable Power of
Attorney, dated May 4,1996
By: /s/ C. William Kaman II
-----------------------------
Name: C. William Kaman II
Title: Attorney-in-Fact
C. WILLIAM KAMAN II, in his
capacity as a Voting Trustee
under the Voting Trust
Agreement, dated August 14,
2000 and as amended as of June
7, 2005
By: /s/ C. William Kaman II
-----------------------------
Name: C. William Kaman II
Title: Voting Trustee
C. WILLIAM KAMAN II, in his
individual capacity
By: /s/ C. William Kaman II
-----------------------------
Name: C. William Kaman II
[Signature page to Securities Purchase Agreement]
IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
SHAREHOLDERS:
C. WILLIAM KAMAN II, in his
capacity as Trustee for Charles
Tyson Kaman and Kathryn S.
Kaman
By: /s/ C. William Kaman II
-----------------------------
Name: C. William Kaman II
Title: Trustee
STEVEN W. KAMAN, in his
capacity as an Attorney-in-Fact
under the Durable Power of
Attorney, dated May 4, 1996
By:
-----------------------------
Name: Steven W. Kaman
Title: Attorney-in-Fact
STEVEN W. KAMAN, in his
capacity as a Voting Trustee
under the Voting Trust
Agreement, dated August 14,
2000 and as amended as of June
7, 2005
By:
-----------------------------
Name: Steven W. Kaman
Title: Voting Trustee
STEVEN W. KAMAN, in his
individual capacity
By:
-----------------------------
Name: Steven W. Kaman
[Signature page to Securities Purchase Agreement]
IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
SHAREHOLDERS:
C. WILLIAM KAMAN II, in his
capacity as Trustee for Charles
Tyson Kaman and Kathryn S.
Kaman
By:
-----------------------------
Name: C. William Kaman II
Title: Trustee
STEVEN W. KAMAN, in his
capacity as an Attorney-in-Fact
under the Durable Power of
Attorney, dated May 4, 1996
By: /s/ Steven W. Kaman
-----------------------------
Name: Steven W. Kaman
Title: Attorney-in-Fact
STEVEN W. KAMAN, in his
capacity as a Voting Trustee
under the Voting Trust
Agreement, dated August 14,
2000 and as amended as of June
7, 2005
By: /s/ Steven W. Kaman
-----------------------------
Name: Steven W. Kaman
Title: Voting Trustee
STEVEN W. KAMAN, in his
individual capacity
By: /s/ Steven W. Kaman
-----------------------------
Name: Steven W. Kaman
[Signature page to Securities Purchase Agreement]
IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
SHAREHOLDERS:
STEVEN W. KAMAN, in his
capacity as Trustee for Cameryn
H. Kaman
By: /s/ Steven W. Kaman
-----------------------------
Name: Steven W. Kaman
Title: Trustee
CATHLEEN H. KAMAN, in her
capacity as an Attorney-in-Fact
under the Durable Power of
Attorney, dated May 4, 1996
By:
-----------------------------
Name: Cathleen H. Kaman
Title: Attorney-in-Fact
CATHLEEN H. KAMAN, in her
capacity as a Voting Trustee
under the Voting Trust
Agreement, dated August 14,
2000 and as amended as of June
7, 2005
By:
-----------------------------
Name: Cathleen H. Kaman
Title: Voting Trustee
CATHLEEN H. KAMAN, in her
individual capacity
By:
-----------------------------
Name: Cathleen H. Kaman
CATHLEEN H. KAMAN, in her
capacity as Trustee for Zane N.
Kaman-Wood
By:
-----------------------------
Name: Cathleen H. Kaman
Title: Trustee
[Signature page to Securities Purchase Agreement]
IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
SHAREHOLDERS:
STEVEN W. KAMAN, in his
capacity as Trustee for Cameryn
H. Kaman
By:
-----------------------------
Name: Steven W. Kaman
Title: Trustee
CATHLEEN H. KAMAN, in her
capacity as an Attorney-in-Fact
under the Durable Power of
Attorney, dated May 4, 1996
By: /s/ Cathleen H. Kaman
-----------------------------
Name: Cathleen H. Kaman
Title: Attorney-in-Fact
CATHLEEN H. KAMAN, in her
capacity as a Voting Trustee
under the Voting Trust
Agreement, dated August 14,
2000 and as amended as of June
7, 2005
By: /s/ Cathleen H. Kaman
-----------------------------
Name: Cathleen H. Kaman
Title: Voting Trustee
CATHLEEN H. KAMAN, in her
individual capacity
By: /s/ Cathleen H. Kaman
-----------------------------
Name: Cathleen H. Kaman
CATHLEEN H. KAMAN, in her
capacity as Trustee for Zane N.
Kaman-Wood
By: /s/ Cathleen H. Kaman
-----------------------------
Name: Cathleen H. Kaman
Title: Trustee
[Signature page to Securities Purchase Agreement]
IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
BUYER:
MK INVESTMENTS LLC
By: Mason MK Holdings LLC
Title: Sole Member
By: Mason Capital Management LLC
Title: Sole Member
By: /s/ Michael E. Martino
-----------------------------
Name: Michael E. Martino
Title: CEO
MASON:
MASON CAPITAL MANAGEMENT LLC
By: /s/ John C. Grizzetti
-----------------------------
Name: John C. Grizzetti
Title: Chief Financial Officer
[Signature page to Securities Purchase Agreement]
Schedule A
----------
Share Certificate Aggregate Number Aggregate Purchase
Name Numbers of Shares Price
- ---------------------------------- ----------------------- --------------------------- ----------------------
Charles H. Kaman B 1236 354,976 $19,523,680
B 1270
B 1521
B 1631
B 1665
B 1723
B 2036
B 2074
B 2213
B 2737
B 2738
B 3214
B 3216
B 3436
B 4269
B 4323
B 4408
B 4512
B 4523
B 5279(1)
Newgate Associates B 5279(2) 103,201 $5,676,055
Limited Partnership
C. William Kaman, II B 5275 69,246 $3,808,530
B 4495(3)
B 4496(4)
Roberta C. Kaman B 3139 1,471 $80,905
B 3295
B 3438
B 3552
B 4524
Steven W. Kaman B 4507 10,183 $560,065
B 4519
B 4617
Cathleen H. Kaman B 5259 12,634 $694,870
B 5260
B 5261
B 5262
B 5263
B 5264
B 5265
B 5266
B 5267
B 5268
B 5269
B 4502(5)
- ---------------------------------- ----------------------- --------------------------- ----------------------
Total: 551,711 $30,344,105
(1) Represents 96,601 Class B Shares registered in the name of John C.
Yavis, Jr. as Custodian under the Voting Trust Agreement.
(2) Represents 96,601 Class B Shares registered in the name of John C.
Yavis, Jr. as Custodian under the Voting Trust Agreement. Shares held
by Newgate and Kaman Class B Shares both are represented by the share
certificate B 5279.
(3) Held by Charles W. Kaman, II as Trustee for Kathryn S. Kaman.
(4) Held by Charles W. Kaman, II as Trustee for Charles Tyson Kaman.
(5) Held by Cathleen H. Kaman as Trustee for Zane N. Kaman-Wood.
EXHIBIT B
THIRD PARTY OFFEROR CERTIFICATION
Mason Capital Management LLC
110 East 59th Street, 30th Floor
New York, NY 10022
tel 212-771-1206
fax 212-644-4264
June 28, 2005
Kaman Corporation
Attention: Candace A. Clark
Senior Vice President, Chief Legal Officer and Secretary
1332 Blue Hills Avenue
Bloomfield, Connecticut 06002
Dear Ms. Clark,
In accordance with Section 14(c) of that certain Agreement, dated as of June
7, 2005, by and among the Kaman Corporation (the "Company") and certain
members of the Kaman family (the "Shareholders") and filed by the Company as
Exhibit 2.1 on Form 8-K with the U.S. Securities and Exchange Commission on
June 8, 2005 (the "Recapitalization Agreement"), and in connection with that
certain Securities Purchase Agreement by and "between the undersigned and
Mason Capital Management LLC, on the one hand, and the Shareholders on the
other hand (the "Securities Purchase Agreement"), the undersigned hereby
certifies on the date hereof and at the time of delivery of the QAT
Termination Notice:
1. the proposed transaction contemplated by the Securities Purchase
Agreement has been entered into with a good faith intention that it
be completed on the stated terms promptly in the event that the
Company were not to announce a Substitute Recapitalization Proposal;
and
2. as to the sufficiency and prompt availability of funds required to
consummate the transaction contemplated by the Securities Purchase
Agreement.
Unless otherwise defined herein or the context otherwise requires, capitalized
terms used and not defined herein shall have the meanings assigned to them in
the Recapitalization Agreement.
Regards,
MK Investments LLC
By: Mason MK Holdings LLC
Its: Sole Member
By: /s/ Michael E. Martino
----------------------
Name: Michael E. Martino
Title: Member
CC: Eileen S. Kraus, Chairperson of the Special Committee
Randall H. Doud, Esq.
John C. Yavis, Jr., Esq. and Charles E. Drummey, Esq.
Martin Nussbaum, Esq.
Thomas J. Groark, Jr., Esq.
EXHIBIT C
GOLDMAN SACHS LETTER
Goldman, Sachs & Co.
One New York Plaza
New York, New York 10004
Tel: 212-902-8058
Fax: 212-453-0003
e-mail: marjorie.boliscar@gs.com
Marjorie Boliscar
Managing Director
Global Securities Services
June 23, 2005
Mason Capital Management LLC
110 East 59th Street
30th Floor
New York, NY 10022
Attn: Michael Martino
Dear Michael:
At your request, this will confirm that as of the close of business on June
22, 2005 ("Determination Time"), Mason Capital Management LLC, had investment
discretion over accounts held at Goldman, Sachs & Co. and its affiliates
containing free cash balances of $264 million in the aggregate.
Please note that the above statement relates only to cash held as of the
Determination Time, and does not reflect any trading activity or other
movements of cash that may have been effected in such accounts subsequent to
the Determination Time.
Sincerely,
/s/ Marjorie Boliscar
Marjorie Boliscar