FIRST AMENDMENT TO KEITH HOWE
EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT , dated as of December 31, 2008
(the “ Amendment Effective Date ”), is entered
into by and between Vought Aircraft Industries, Inc., a Delaware
corporation (the “ Company ”) and Keith Howe
(the “ Executive ”).
WHEREAS , the Company and the Executive previously entered
into an employment agreement, dated as of January 4, 2007,
(the “ Employment Agreement ”), that sets forth
the terms and conditions of the Executive’s employment with
the Company;
WHEREAS , the Company and Executive mutually desire to amend
the Employment Agreement to take into consideration certain
requirements imposed by Section 409A of the Internal Revenue
Code of 1986, as amended (the “ Code ”);
and
WHEREAS , Section 15 of the Employment Agreement
provides that the Employment Agreement may be amended pursuant to a
written agreement between the Company and the Executive.
NOW, THEREFORE , the Company and the Executive hereby agree
that, effective as of the Amendment Effective Date, for good and
valuable consideration, the receipt of which is hereby
acknowledged, the Employment Agreement is hereby amended as
follows:
1. The
following sentence is hereby added to the end of
Section 2(b) of the Employment Agreement:
“Any
annual bonus that becomes payable pursuant to this Section 2(b)
shall be paid no later than March 15 th of
the year following the year in which such annual bonus is earned.
Provided, however, that if the Board shall determine that it is
administratively impracticable, which may include inability of the
Company to gain certification of its financial statements, to make
such annual bonus payment by March 15 th ,
any such payment shall be made as soon as reasonably practicable
after such period and in no event later than
December 31 st of
the year following the year the year for which such annual bonus
was earned.”
2.
Section 2(i) of the Employment Agreement is hereby
deleted and replaced in its entirety with the following:
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“(i)
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Expenses . During the Term, the Company shall
reimburse the Executive for all reasonable travel and other
business expenses incurred by him in the performance of his duties
to the Company in accordance with the Company’s expense
reimbursement policy. To the extent that any reimbursements,
including without limitation any reimbursements pursuant to Section
2(c) above, Section 2(g) above and/or pursuant to this
Section 2(i), are determined to constitute taxable
compensation to the Executive, then reimbursement requests with
respect to such expenses must be timely submitted by the Executive
and, if timely submitted, such expenses shall be reimbursed no
later than December 31 st of the year following the year in
which the expense was incurred. In no event shall the Executive be
entitled to any such reimbursement payments after
December 31 st of the year following the year in
which the expense was incurred. The amount of any such expenses
reimbursed in one year shall not affect the amount eligible for
reimbursement in any subsequent year, except for the reimbursement
of medical expenses referred to in Section 105(b) of the Internal
Revenue Code of 1986, as amended (the “ Code ”)
and the Executive’s right to reimbursement of any such
expenses shall not be subject to liquidation or exchange for any
other benefit.”
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3.
Section 2(k) of the Employment Agreement is hereby
deleted and replaced in its entirety with the following:
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“(k)
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Indemnification
. The Executive shall be
indemnified and held harmless by the Company to the fullest extent
authorized by the Company’s certificate of incorporation or
bylaws against all costs, expenses, liabilities and losses
reasonably incurred or suffered by the Executive with respect to
any bona fide claim against the Executive or the Company, where
such claim is based on actions taken by the Executive in good faith
and in his capacity as an officer of the Company. Notwithstanding
the foregoing, no amounts shall be paid or advanced in accordance
with this Section 2(k) to the extent that any such amounts would
fail to be exempt from the application of Section 409A
(as
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