Exhibit 10.1
SECOND AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AGREEMENT,
dated as of February 24, 2011,
is made by and between TransDigm Group Incorporated, a Delaware
corporation (the “ Company ”), and W. Nicholas
Howley (the “ Executive ”).
RECITALS:
WHEREAS, the Executive is a party to
an amended and restated employment agreement with the Company dated
as of June 3, 2008 (the “ Prior Employment
Agreement ”); and
WHEREAS, the term under the Prior
Employment Agreement expires April 25, 2013; and
WHEREAS, the Company and the
Executive would like to continue the Executive’s employment
with the Company on the terms set forth herein.
NOW, THEREFORE, in consideration of
the foregoing and of the respective covenants and agreements set
forth below, the parties hereto agree as follows:
1. Certain Definitions
.
(a) “ Annual Base
Salary ” shall have the meaning set forth in
Section 4(a).
(b) “ Board ”
shall mean the Board of Directors of the Company.
(c) “ Cause ”
shall mean either of the following: (i) the repeated failure
by the Executive, after written notice from the Board,
substantially to perform his material duties and responsibilities
as an officer or employee or director of the Company or any of its
subsidiaries (other than any such failure resulting from incapacity
due to reasonably documented physical or mental illness),
(ii) any willful misconduct by the Executive that has the
effect of materially injuring the business of the Company or any of
its subsidiaries, including, without limitation, the disclosure of
material secret or confidential information of the Company or any
of its subsidiaries, or (iii) the Executive’s conviction
of, or pleading “guilty” or “ no contest”
to a felony that is or could reasonably be expected to result in
material harm to the Company or any of its subsidiaries.
(d) “ Change in Control
” shall mean the occurrence of an event described in (i),
(ii), (iii), (iv) or (v) below:
(i) A change in ownership or control
of the Company after the Effective Date effected through a
transaction or series of transactions (other than an offering of
Common Stock to the general public through a registration statement
filed with the Securities and Exchange Commission), including by
way of merger, consolidation or otherwise, whereby any
“person” or related “group” of
“persons” (as such terms are used in Sections 13(d) and
14(d)(2) of the Exchange Act) (other than the Company, any of its
subsidiaries, an employee benefit plan maintained by the Company or
any of its subsidiaries or a “person” that, prior to
such transaction, directly or indirectly controls, is controlled
by, or is under common control with, the Company) directly or
indirectly acquires beneficial ownership (within the meaning of
Rule 13d-3 under the Exchange Act) of securities of the Company
possessing more than fifty percent (50%) of the total combined
voting power of the Company’s securities outstanding
immediately after such acquisition.
(ii) The individuals who, as of the
date hereof, are members of the Board of Directors of the Company
(the “ Incumbent Board ”), cease for any reason
to constitute at least fifty percent (50%) of the members of
the Board; provided, however, that if the election, or nomination
for election by the Company common stockholders, of any new
director was approved by a vote of at least two-thirds of the
Incumbent Board, such new director shall, for purposes of this
Plan, be considered as a member of the Incumbent Board; provided
further, however, that no individual shall be considered a member
of the Incumbent Board if such individual initially assumed office
as a result of either an actual or threatened “Election
Contest” (as described in Rule 14a-11 promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than the Board (a
“ Proxy Contest ”) including by reason of any
agreement intended to avoid or settle any Election Contest or Proxy
Contest.
(iv) The consummation of a complete
liquidation or dissolution of the Company.
(v) The consummation of a sale or
other disposition of all or substantially all of the assets of the
Company to any Person (other than a transfer to a
subsidiary).
(e) “ Code ”
shall mean the Internal Revenue Code of 1986, as amended. Reference
to a Section of the Code includes all rulings, regulations,
notices, announcements, decisions, orders and other pronouncements
that are issued by the United States Department of the Treasury,
the Internal Revenue Service, or any court of competent
jurisdiction that are lawful and pertinent to the interpretation,
application or effectiveness of such Section.
(f) “ Common Stock
” shall mean the common stock of the Company, $0.01 par value
per share.
(g) “ Company ”
shall have the meaning set forth in the preamble hereto.
(h) “ Compensation
Committee ” shall mean the Compensation Committee of the
Board whose members shall be appointed by the Board from time to
time.
(i) “ Date of
Termination ” shall mean (i) if the
Executive’s employment is terminated by reason of his death,
the date of his death, and (ii) if the Executive’s
employment is terminated pursuant to Sections 5(a)(ii) - (vi), the
date specified in the Notice of Termination.
(j) “ Disability
” shall mean the inability of the Executive to perform his
duties and responsibilities as an officer or employee of the
Company or any of its subsidiaries on a full-time basis for more
than six months within any 12-month period because of a physical,
mental or emotional incapacity resulting from injury, sickness or
disease.
(k) “ Effective Date
” shall mean April 25, 2008.
(l) “ Exchange Act
” shall mean the Securities Exchange Act of 1934, as
amended.
(m) “ Executive ”
shall have the meaning set forth in the preamble hereto.
(n) “ Good Reason
” shall mean the occurrence of any of the following:
(i) a material diminution in the Executive’s title,
position, duties or responsibilities (including reporting
responsibilities), without his prior written consent, (ii) a
reduction of the Executive’s Annual Base Salary or annual
bonus opportunity without his prior written consent,
(iii) Executive is not re-elected to the Board, (iv) the
Company requires the Executive, without his prior written consent,
to be based at any office or location that requires a relocation
greater than 30 miles from Cleveland, Ohio, or (vi) any
material breach of this Agreement by the Company. In addition
to the foregoing, the term “Good Reason” shall also be
deemed to exist if the requirements of clauses (i) and
(ii) below are met:
(i) Any of the following events
occurs:
(A) There is a change in
Executive’s title, position, duties or responsibilities
(including reporting responsibilities) which does not represent a
promotion from the title, position, duties or responsibilities that
are provided for under this Agreement;
(B) The Executive is assigned any
duties or responsibilities which are inconsistent with his title,
position, duties or responsibilities that are provided for under
this Agreement; or
(C) There is a reduction of the
Executive’s aggregate cash compensation (including bonus
opportunities), or a change in Executive’s benefits such that
following such change, Executive’s benefits are not
substantially comparable to those to which he was entitled
immediately prior to such change, in each case without his prior
written consent.
(ii) The event described in clause
(i) above occurs under any of the following
circumstances:
(A) Within the one year period
following a Change in Control,
(B) Prior to the date of a Change in
Control, at the request of a third party who has indicated an
intention or taken steps reasonably calculated to effect a Change
in Control, or
(C) otherwise in connection with, or
in anticipation of, a Change in Control which has been threatened
or proposed.
(o) “ Notice of
Termination ” shall have the meaning set forth in
Section 5(b).
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(p) “ Option Agreements
” shall mean the written agreements between the Company and
the Executive pursuant to which the Executive holds or is granted
options to purchase Common Stock, including, without limitation,
agreements evidencing options granted under the Option
Plan.
(q) “ Option Plan
” shall mean any option plan adopted or maintained by the
Company for employees generally.
(r) “ Options ”
as of any date of determination shall mean options held by the
Executive as of such date to purchase Common Stock of the
Company.
(s) “ Payment Period
” shall have the meaning set forth in
Section 6(b)(i).
(t) “ Term ”
shall have the meaning set forth in Section 2.
2. Employment . The Company
shall continue to employ the Executive and the Executive shall
remain in the employ of the Company, for the period set forth in
this Section 2, in the positions set forth in Section 3
and upon the other terms and conditions herein provided. The
term of employment under this Agreement (the “Term”)
shall be for the period beginning on the Effective Date and ending
on December 31, 2015 unless earlier terminated as provided in
Section 5; provided , however , that unless so
earlier terminated or unless the Executive or the Company shall
give written notice to the other of his or its intention not to
renew this Agreement no less than sixty days prior to the scheduled
expiration thereof, upon December 31, 2015, this Agreement
shall automatically be renewed for an additional one year
period.
3. Position and Duties .
During the Term, the Executive shall serve as the Chairman and
Chief Executive Officer of the Company with such customary
responsibilities, duties and authority as may from time to time be
assigned to the Executive by the Board. During the Term, the
Executive shall devote substantially all his working time and
efforts to the business and affairs of the Company; provided
, that it shall not be considered a violation of the foregoing for
the Executive to (i) with the prior consent of the Board
(which consent shall not unreasonably be withheld), serve on
corporate, industry, civic or charitable boards or committees
(provided, that without such prior consent of the Board, the
Executive shall, subject to the limitation set forth below, be
permitted to continue to serve as a member of the board of
directors (or board of trustees) or as a committee member, as the
case may be, of Polypore, Inc., Satair A/S, St. Martin de Porres,
Gilmour Academy and the Rock and Roll Hall of Fame), and
(ii) manage his personal or family investments, so long as
none of such activities significantly interferes with the
Executive’s duties hereunder.
4. Compensation and Related
Matters .
(a) Annual Base Salary
. During the Term, the Executive shall receive a base salary
(the “Annual Base Salary”) at a rate that is no less
than $740,000 per annum in calendar year 2011 (retroactive to
January 1, 2011) and no less than $873,443 in calendar year
2012, payable in accordance with the Company’s normal payroll
practices. The rate of the Annual Base Salary shall be reviewed by
the Compensation Committee on or prior to each anniversary of the
Effective Date during the Term and may be increased, but not
decreased, upon such review.
(b) Bonus . For each
fiscal year during the Term, the Executive shall be eligible to
participate in the Company’s annual cash bonus plan in
accordance with terms and provisions which shall be consistent with
the Company’s executive bonus policy in effect as of the date
hereof. The Executive’s target bonus for calendar year 2011
will be 115% of his Annual Base Salary and for calendar year 2012
and thereafter will be 124% of his Annual Base Salary.
(c) Options . Within 60 days
following the approval of an amendment to the 2006 Stock Incentive
Plan of the Company as contemplated by this Section 4(c), the
Company shall grant the Executive Options to purchase 510,000 of
the shares in accordance with form option agreement attached hereto
as Exhibit A under the Company’s 2006 Stock Incentive Plan,
with an exercise price no greater than Fair Market Value of the
Company’s shares as of the grant date (determined in
accordance with the 2006 Stock Incentive Plan); provided ,
however , that if the stockholders of the Company do not
approve an amendment to the Company’s 2006 Stock Incentive
Plan increasing the amount of shares of common stock available for
issuance thereunder as contemplated by the Company’s proxy
statement dated January 19, 2011, then “April 25,
2013” shall substituted for “December 31, 2015”
wherever referenced in Section 2 of this Agreement.
(d) Long Term Incentive
Compensation . During the Term, the Executive shall be
entitled to participate in the Option Plan or any successor plan
thereto or any other long-term incentive plan implemented by the
Company.
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(e) Benefits . During the
Term, the Executive shall be entitled to participate in the other
employee benefit plans, programs and arrangements of the Company
now (or, to the extent determined by the Board or Compensation
Committee, hereafter) in effect which are applicable to the senior
officers of the Company generally, subject to and on a basis
consistent with the terms, conditions and overall administration
thereof (including the right of the Company to amend, modify or
terminate such plans).
(f) Expenses . Pursuant
to the Company’s customary policies in force at the time of
payment, the Executive shall be reimbursed for all expenses
properly incurred by the Executive on the Company’s behalf in
the performance of the Executive’s duties
hereunder.
(g) Vacation Pay . The
Executive shall be entitled to an amount of annual vacation days
per year, and to compensation in respect of earned but unused
vacation days, in accordance with the Company’s vacation
policy as in effect as of the Effective Date. The Executive
shall also be entitled to paid holidays in accordance with the
Company’s practices with respect to same as in effect as of
the Effective Date.
(h) Automobile . During
the Term, the Company shall provide the Executive with an annual
automobile allowance at a rate not less than that in effect as of
the Effective Date.
(i) Club Membership
. During the Term, the Company shall pay on behalf of the
Executive, or reimburse the Executive for, annual membership fees
payable in connection with the Executive’s membership in one
country club of the Executive’s choice.
(j) Tax and Financial Planning
Assistance . During the Term, the Company shall, upon
submission of proper documentation, pay on behalf of the Executive,
or reimburse the Executive for, reasonable expenses incurred for
professional assistance in planning and preparing his tax returns
and managing his financial affairs, provided that such expenses do
not exceed $33,500 per annum.
5. Termination .
(a) The Executive’s employment
hereunder may be terminated by the Company or the Executive, as
applicable, without any breach of this Agreement only under the
following circumstances and in accordance with subsection
(b):
(i) Death . The
Executive’s employment hereunder shall terminate upon his
death.
(ii) Disability . If the
Company determines in good faith that the Executive has incurred a
Disability, the Company may give the Executive written notice of
its intention to terminate the Executive’s
employment. In such event, the Executive’s employment
with the Company shall terminate effective on the 30th day after
receipt of such notice by the Executive, provided that within such
30 day period the Executive shall not have returned to full-time
performance of his duties. The Executive shall continue to
receive his Annual Base Salary until the 90th day following the
date of the Notice of Termination.
(iii) Termination for Cause
. The Company may terminate the Executive’s employment
hereunder for Cause.
(iv) Resignation for Good
Reason . The Executive may resign his employment hereunder
for Good Reason.
(v) Termination without Cause
. The Company may terminate the Executive’s employment
hereunder without Cause.
(vi) Resignation without Good
Reason . The Executive may resign his employment hereunder
without Good Reason.
(b) Notice of Termination
. Any termination of the Executive’s employment by the
Company or by the Executive under this Section 5 (other than
termination pursuant to subsection (a)(i)) shall be communicated by
a written notice from the Board or the Executive to the other,
indicating the specific termination provision in this Agreement
relied upon, setting 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, and
specifying a Date of Termination which, except in the case of
Termination by reason of Disability or Termination for Cause
pursuant to Section 5(a)(ii) or 5(a)(iii), respectively, shall
be at least 90 days following the date of such notice (a “
Notice of Termination ”). In the event of Termination
for Cause pursuant to Section 5(a)(iii), the Executive shall
have the right,
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if the basis for such Cause is curable, to cure
the same within 15 days following the Notice of Termination for
Cause, and Cause shall not be deemed to exist if the Executive
cures the event giving rise to Cause within such 15-day
period. In the event of Termination by the Executive for Good
Reason pursuant to Section 5(a)(iv), the Company shall have
the right, if the basis for such Good Reason is curable, to cure
the same within 15 days following the Notice of Termination for
Good Reason, and Good Reason shall not be deemed to exist if the
Company cures the event giving rise to Good Reason within such
15-day period. The Executive shall continue to receive his
Annual Base Salary, annual bonus and all other compensation and
perquisites referenced in Section 4 through the Date of
Termination.
6. Severance Payments
.
(a) Termination for any
Reason . In the event the Executive’s employment with the
Company is terminated for any reason, the Company shall pay the
Executive (or his beneficiary in the event of his death) any unpaid
Annual Base Salary that has accrued as of the Date of Termination,
any unreimbursed expenses due to the Executive and an amount for
accrued but unused sick days and vacation days. The Executive
shall also be entitled to accrued, vested benefits under the
Company’s benefit plans and programs as provided
therein. The Executive shall be entitled to the additional
payments and benefits described below only as set forth
herein.
(b) Termination without Cause,
Resignation for Good Reason or Termination by Reason of Death or
Disability . Subject to Section 6(c) and (d) and the
restrictions contained herein, in the event of the
Executive’s Termination without Cause (pursuant to
Section 5(a)(v)), Resignation for Good Reason (pursuant to
Section 5(a)(iv)) or termination by reason of death or
Disability (pursuant to Section 5(a)(i) or (ii),
respectively), the Company shall pay to the Executive the amounts
described in subsection (a). In addition, subject to
Section 6(c) and (d) and the restrictions contained
herein, the Company shall do all of the following:
(i) The Company shall pay to the
Executive (or his beneficiary in the event of his death) an amount
equal to the “ Severance Amount ” described
below. For purposes of this Agreement, the Severance Amount is
equal to the sum of:
(A) 2.0 times his Annual Base
Salary, and
(B) 2.0 times the greater of
(I) the total of all bonuses paid (or payable) to Executive in
respect of the fiscal year ending immediately prior to the Date of
Termination, excluding any bonuses that are extraordinary in nature
(e.g. a transaction related bonus), or (II) the target bonuses for
the fiscal year in which the Date of Termination falls, determined
in accordance with the Company’s bonus program or programs,
if any.
The Severance Amount as so
determined shall be payable to Executive (or his beneficiary) in
substantially equal installments over the 24 month period following
the Date of Termination (the “ Payment Period ”)
in accordance with the Company’s regular payroll
practices.
(ii) The Company shall offer to
Executive continuation of any health plan coverage of Executive in
accordance with the requirements of applicable law (e.g.
“COBRA coverage” under the Employee Retirement Income
Security Act of 1974), at a monthly cost to Executive that is not
greater than the monthly cost that Executive is being charged for
of such coverage or coverages as of the Date of Termination. The
Company may require Executive to complete and file any election
forms that are generally required of other employees to obtain
COBRA coverage; and Executive’s COBRA coverage may be
terminable in accordance with applicable law.
(iii) Notwithstanding the foregoing,
in the event that the Company, in good faith, and based upon clear
and compelling written evidence, determines that, at any time
during the Payment Period, Executive is in material breach of his
obligations under Section 7 hereof, upon written notice
to Executive, the Company shall be entitled to suspend payment of
the Severance Amount, pending final determination of breach by a
court of competent jurisdiction. In the event such court
finally determines the occurrence of a material breach, the Company
shall be entitled to retain any portion of the Severance Amount
then unpaid, and the Company shall have no further obligation with
respect thereto. If instead, such court finally determines
that no such material breach occurred, upon such determination the
Company shall promptly pay Executive the full amount of any portion
of the Severance Amount that was not retained by the Company during
such suspension of payment, plus an amount of interest equal to the
prime rate (as reported in The Wall Street Journal on the date
prior to the date of payment) plus two percent (2%), and shall also
reimburse Executive for his court costs and attorney
fees.
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(c) Benefits Provided Upon
Termination of Employment . If Executive’s termination or
resignation does not constitute a “separation from
service,” as such term is defined under Code
Section 409A, Executive shall nevertheless be entitled to
receive all of the payments and benefits that Executive is entitled
to receive under this on account of his termination of employment.
However, the payments and benefits that Executive is entitled to
under this Agreement shall not be provided to Executive until such
time as Executive has incurred a “separation from
service” within the meaning of Code
Section 409A.
(d) Specified Employee Status
Under Section 409A . Furthermore, notwithstanding any
provision of the Agreement to the contrary, if the Executive is a
“specified employee” (as defined by Code
Section 409A) at the time of his termination of employment
under this Agreement (or, if later, his “separation from
service” under Code Section 409A), to the extent that a
payment, reimbursement or benefit under Section 6(b) is
considered to provide for a “deferral of compensation”
(as determined under Code Section 409A), then such payment,
reimbursement or benefit shall not be paid or provided until six
months after the Executive’s separation from service, or his
death, whichever occurs first. Any payments, reimbursements or
benefits that are withheld under this provision for the first six
months shall be payable in a lump sum on the 181
st day after such termination of employment (or, if
later, separation from service).
The restrictions in this
Section 6(d) shall be interpreted and applied solely to the
minimum extent necessary to comply with the requirements of Code
Section 409A(a)(2)(B). Accordingly, payments, benefits or
reimbursements under Section 6(b) or any other part of this
Agreement may nevertheless be provided to Executive within the 6
month period following the date of the Executive’s
termination of employment under this Agreement (or, if later, his
“separation from service” under Code
Section 409A), to the extent that it would nevertheless be
permissible to do so under Code Section 409A because those
payments, reimbursements or benefits are (i) described in
Treasury Regulations Section 1.409A-1(b)(9)(iii) (i.e.
payments within the limitations therein that are being made on
account of an involuntary termination or termination for good
reason, within the meaning of the Treasury Regulations), or
(ii) benefits described in Treasury Regulations
Section 1.409A-1(b)(9)(v) (e.g. health care
benefits).
7. Competition;
Nonsolicitation .
(a) During the Term and, following
any termination of Executive’s employment for any reason, for
a period equal to (i) the Payment Period, in the case of a
termination of employment for which payments are made pursuant to
Section 6(b) hereof, or (ii) 24 months from the date of
such termination in the event of a voluntary termination of
employment by the Executive without Good Reason, or a termination
by the Company for Cause, the Executive shall be subject to the
following restrictions:
(i) The Executive shall not, without
the prior written consent of the Board, directly or indirectly
engage in, or have any interest in, or manage or operate any
person, firm, corporation, partnership or business (whether as
director, officer, employee, agent, representative, partner,
security holder, consultant or otherwise) that engages in any
business (other than a business that constitutes less than 5% of
the relevant entity’s net revenue and a proportionate share
of its operating income) which competes with any business of the
Company or any entity owned by it anywhere in the world;
provided , however , that the Executive shall be
permitted to acquire a stock interest in such a corporation
provided such stock is publicly traded and the stock so
acquired does not represent more than one percent of the
outstanding shares of such corporation.
(ii) The Executive shall not render
services to any person, firm, corporation, partnership or business
(whether as director, officer, employee, agent, representative,
partner, security holder, consultant or otherwise) that are
designed to advise, assist or otherwise enable such person, firm,
corporation, partnership or business to acquire the stock of, an
interest in, or the assets of, another corporation or business
operation that, within the 24 month period preceding the Date of
Termination, the Company has actively pursued, or had demonstrable
plans to pursue, as an acquisition target.
(b) During the Term and for a period
of two years following any termination of the Executive’s
employment, the Executive shall not, directly or indirectly, on his
own behalf or on behalf of any other person or entity, whether as
an owner, employee, service provider or otherwise, solicit or
induce any person who is or was employed by, or providing
consulting services to, the Company or any of its direct or
indirect subsidiaries during the twelve-month period prior to the
date of such termination, to terminate their employment or
consulting relationship with the Company or any such
subsidiary.
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(c) In the event the agreement in
this Section 7 shall be determined by any court of competent
jurisdiction to be unenforceable by reason of its extending for too
great a period of time or over too great a geographical area or by
reason of its being too extensive in any other respect, it shall be
interpreted to extend only over the maximum period of time for
which it may be enforceable, and/or over the maximum geographical
area as to which it may be enforceable and/or to the maximum extent
in all other respects as to which it may be enforceable, all as
determined by such court in such action.
8. Nondisclosure of Proprietary
Information .
(a) Except as required in the
faithful performance of the Executive’s duties hereunder or
pursuant to subsection (c), the Executive shall, in perpetuity,
maintain in confidence and shall not directly, indirectly or
otherwise, use, disseminate, disclose or publish, or use for his
benefit or the benefit of any person, firm, corporation or other
entity any confidential or proprietary information or trade secrets
of or relating to the Company and its direct and indirect
subsidiaries, including, without limitation, information with
respect to the Company’s and such subsidiaries’
operations, processes, products, inventions, business practices,
finances, principals, vendors, suppliers, customers, potential
customers, marketing methods, costs, prices, contractual
relationships, regulatory status, compensation paid to employees or
other terms of employment, except for such information which is or
becomes publicly available other than as a result of a breach by
the Executive of this Section 8, or deliver to any person,
firm, corporation or other entity any document, record, notebook,
computer program or similar repository of or containing any such
confidential or proprietary information or trade secrets. The
parties hereby stipulate and agree that as between them the
foregoing matters are important, material and confidential
proprietary information and trade secrets and affect the successful
conduct of the businesses of the Company and its direct and
indirect subsidiaries (and any successor or assignee
thereof).
(b) Upon termination of the
Executive’s employment with the Company for any reason, the
Executive shall promptly deliver to the Company all correspondence,
drawings, manuals, letters, notes, notebooks, reports, programs,
plans, proposals, financial documents, or any other documents
concerning the Company’s and its direct and indirect
subsidiaries’ customers, business plans, marketing
strategies, products or processes and/or which contain proprietary
information or trade secrets.
(c) The Executive may respond to a
lawful and valid subpoena or other legal process but shall give the
Company the earliest possible notice thereof, shall, as much in
advance of the return date as possible, make available to the
Company and its counsel the documents and other information sought
and shall assist such counsel in resisting or otherwise responding
to such process.
9. Injunctive Relief . It is
recognized and acknowledged by the Executive that a breach of the
covenants contained in Sections 7 and 8 will cause irreparable
damage to the Company and its goodwill, the exact amount of which
will be difficult or impossible to ascertain, and that the remedies
at law for any such breach will be inadequate. Accordingly,
the Executive agrees that in the event of a breach of any of the
covenants contained in Sections 7 and 8, in addition to any other
remedy which may be available at law or in equity, the Company
shall be entitled to specific performance and injunctive
relief.
10. Survival . The expiration
or termination of the Term shall not impair the rights or
obligations of any party hereto which shall have accrued hereunder
prior to such expiration.
11. Binding on Successors .
This Agreement shall be binding upon and inure to the benefit of
the Company, the Executive and their respective successors,
assigns, personnel and legal representatives, executors,
administrators, heirs, distributees, devisees, and legatees, as
applicable.
12. Governing Law . This
Agreement shall be governed, construed, interpreted and enforced in
accordance with the substantive laws of the State of
Ohio.
13. Validity . The invalidity
or unenforceability of any provision or provisions of this
Agreement shall not affect the validity or enforceability of any
other provision of this Agreement, which shall remain in full force
and effect.
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14. Notices . Any notice, request, claim,
demand, document or other communication hereunder to any party
shall be effective upon receipt (or refusal of receipt) and shall
be in writing and delivered personally or sent by telex, telecopy,
or certified or registered mail, postage prepaid, as
follows:
(a) If to the Company,
to:
TransDigm Group
Incorporated
1301 East Ninth Street, Suite
3000
Cleveland, Ohio 44114
Attention: Corporate
Secretary
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with copies to:
TransDigm Group
Incorporated
1301 East Ninth Street, Suite
3000
Cleveland, Ohio 44114
Attention: Chair, Compensation
Committee
and
Baker & Hostetler
LLP
3200 National City Center
1900 East Ninth Street
Cleveland, Ohio 44114
Attention: Diane Chapman,
Esq.
(b) If to the Executive, to him at
the address set forth below under his signature
with a copy to:
Dominic V. Perry &
Associates
631 W. St. Clair Avenue
Cleveland, Ohio 44113
Attention: Dominic V. Perry,
Esq.
or at any other address as any party
shall have specified by notice in writing to the other party in
accordance with this Section 15.
15. Counterparts . This
Agreement may be executed in several counterparts, each of which
shall be deemed to be an original, but all of which together shall
constitute one and the same agreement.
16. Entire Agreement; Prior
Employment Agreement . The terms of this Agreement, together
with the Option Plan and the Option Agreements, are intended by the
parties to be the final expression of their agreement with respect
to the employment of the Executive by the Company and may not be
contradicted by evidence of any prior or contemporaneous agreement,
including, but not limited to, the Prior Employment Agreement and
any plans and agreements referenced therein. The parties
further intend that this Agreement, and the aforementioned
contemporaneous documents, shall constitute the complete and
exclusive statement of its terms and that no extrinsic evidence
whatsoever may be introduced in any judicial, administrative, or
other legal proceeding to vary the terms of this
Agreement. From and after the date hereof, this Agreement
shall supersede the Prior Employment Agreement, except for any
rights or obligations which survive pursuant to Section 10
thereof.
17. Amendments; Waivers .
This Agreement may not be modified, amended, or terminated except
by an instrument in writing, signed by the Executive and authorized
on behalf of the Company by the Compensation Committee. By an
instrument in writing similarly executed, the Executive or the
Company may waive compliance by the other party or parties with any
provision of this Agreement that such other party was or is
obligated to comply with or perform; provided ,
however , that such waiver shall not operate as a waiver of,
or estoppel with respect to, any other or subsequent
failure. No failure to exercise and no delay in exercising any
right, remedy or power hereunder shall preclude any other or
further exercise of any other right, remedy or power provided
herein or by law or in equity.
18. No Inconsistent Actions .
The parties hereto shall not voluntarily undertake or fail to
undertake any action or course of action inconsistent with the
provisions or essential intent of this Agreement. Furthermore,
it is the intent of the parties hereto to act in a fair and
reasonable manner with respect to the interpretation and
application of the provisions of this Agreement.
9
19. Arbitration . Any dispute or
controversy arising under or in connection with this Agreement
shall be settled exclusively by arbitration, conducted before a
panel of three arbitrators in Cleveland, Ohio, in accordance with
the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator’s
award in any court having jurisdiction; provided ,
however , that the Company shall be entitled to seek a
restraining order or injunction in any court of competent
jurisdiction to prevent any continuation of any violation of the
provisions of Section 7 or 8 of this Agreement and the
Executive hereby consents that such restraining order or injunction
may be granted without the necessity of the Company’s posting
any bond; and provided further , that the Executive
shall be entitled to seek specific performance of his right to be
paid until the Date of Termination during the pendency of any
dispute or controversy arising under or in connection with this
Agreement. Each of the parties hereto shall bear its share of
the fees and expenses of any arbitration hereunder.
20. Indemnification and
Insurance . The Company shall indemnify the Executive to the
fullest extent permitted by the laws of the State of Delaware, as
in effect at the time of the subject act or omission, and shall
advance to the Executive reasonable attorneys’ fees and
expenses as such fees and expenses are incurred (sub
