AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
AMENDMENT
NO. 1 TO EMPLOYMENT AGREEMENT
AMENDMENT
NO. 1 TO EMPLOYMENT AGREEMENT (“Amendment No. 1”) made effectively as of the ___
day of July, 2008 by and between Aeroflex Incorporated, a Delaware corporation
(
together with its successors and assigns, the ACompany@)
and
Xxxxxxx Xxxxxxx (hereinafter the AEmployee@).
W
I T N E S S E T H:
WHEREAS,
the Company and Employee entered into an Employment Agreement dated November
6,
2003 (hereinafter the AEmployment
Agreement@);
and
WHEREAS,
the initial Term of Employment per the Employment Agreement was to be three
years commencing on November 6, 2003 and terminating on the third anniversary
thereof, but otherwise, per the terms of the Employment Agreement, was continued
for successive one year periods thereafer; and
WHEREAS
the Company and the Employee desire to modify the Employment Agreement, as
amended, as hereinafter set forth.
NOW,
THEREFORE, for good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. Section
7
shall be amended and restated to read as follows:
(a) The
Employee shall participate in all employee benefit plans and programs for which
he is eligible and which are made available to the Company's executive officers
and other employees generally, as such plans or programs may be in effect from
time to time, including, without limitation, pension and other retirement plan,
profit-sharing plans, savings and similar plans, group life insurance,
accidental death and dismemberment insurance, travel accident insurance,
hospitalization insurance, surgical insurance, medical insurance, dental
insurance, short-term and long-term disability insurance, sick leave (including
salary continuation arrangements), vacations, holidays and any other employee
benefit plans or programs that may be sponsored by the Company from time to
time, including any plans that supplement the foregoing types of plans, whether
funded or unfunded.
(b)
Retirement
Benefit
(i)
A
“Change of Control” having occurred on August 15, 2007, (the “Change of Control
Date”), if the Employee’s employment is terminated for any reason prior to
August 15, 2008 (the “Determination Date”), the Employee shall be entitled to
the benefits provided under the Aeroflex Incorporated Supplemental Executive
Retirement Plan, as amended and restated (the “SERP”), payable in a lump sum
payment equal to the then present value of the Employee’s lifetime benefit
under, and calculated pursuant to Section 3.4 of, the SERP; provided,
however,
that,
per the Third Amendment of the SERP, as of August 31, 2007, the Employee’s
accrued benefit under the SERP shall be frozen as therein provided (i. e.,
per
Sections 1.9 and 1.12 of the SERP, respectively, as amended, only Final Average
Pay (including annual bonuses earned for fiscal 2007) and Service shall be
taken
into account in computing the Employee’s benefit under the SERP).
(ii)
Provided that the Employee remains and is employed until and on the
Determination Date, the Employee shall receive a payment in the amount of
$2,968,833 (the “Benefit Payment”) in full consideration and settlement of any
benefits to which the Employee otherwise would be entitled under the SERP,
payable upon the earliest to occur of: (x) the termination of the Employee’s
employment for any reason, (y) a Change of Control, or (z) January 5, 2009,
and
increased from the Change of Control Date through the date of payment by
interest at the rate of 6%, compounded annually.
(iii)
Except as otherwise may be required by Section 3.4 of the SERP and the
requirements of Section 409A of the Internal Revenue Code of 1986, as amended,
any payments to be made under this Section 7(b) shall be paid no later than
the
90th
day
following the applicable triggering event.
2.
Section
8
(a) shall be amended and restated to read as follows:
(a)
General. Except as otherwise provided in this Agreement, in the event of
termination of the Employee's employment under this Agreement, he, his
dependents or his Beneficiary, as may be the case, shall be entitled to receive
benefits under the Company's employee benefit plans and the Retirement Benefit
described, respectively, in Sections 7 (a) and 7 (b) above, in accordance with
the applicable terms and conditions of each plan or as otherwise provided,
and
reimbursement of any business expenses incurred by the Employee but not yet
paid
to him.
3. Except
as
specifically provided in this Amendment No.1, the Employment Agreement in all
other respects is hereby ratified and confirmed without amendment.
2
IN
WITNESS WHEREOF, the undersigned have executed this Amendment as of the day
and
year first above written.
| AEROFLEX INCORPORATED | ||
| |
|
|
| By: | /s/ Xxxxxxx Xxxxx | |
|
Xxxxxxx
Xxxxx
President
and Chief Executive Officer
|
||
|
/s/
Xxxxxxx Xxxxxxx
|
||
| Xxxxxxx Xxxxxxx | ||
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