EXHIBIT 10.23.8
CHANGE OF CONTROL AGREEMENT
This Change of Control Agreement (the "Agreement") is made and entered
into September 27, 2000 by and between DeCrane Aircraft Holdings, Inc. (the
"Company") and Jeff Smith ("Executive") based on the following facts:
A. Executive is currently employed by the Company in the capacity
as President, Specialty Avionics Group and is a key executive
of the Company.
B. The Company desires to define the terms and conditions of any
termination of employment upon a Change of Control (as defined
herein) in the Company.
Based on the foregoing facts and circumstances and for good and
valuable consideration, receipt of which is hereby acknowledged, the Company and
Executive agree as follows:
1. TERM OF AGREEMENT. Except as otherwise provided herein, the
term of this Agreement shall commence effective the date
hereof and shall continue for two years (the "Term").
2. A. COMPENSATION UPON TERMINATION FOLLOWING A CHANGE OF
CONTROL. In the event that (i) a Change of Control
shall have occurred during the term of this Agreement
and while Executive is employed by the Company and
(ii) the Executive's employment shall be involuntarily
terminated for any reason on a date which is less than
one year after the date of the Change of Control
(whether during or after the term of this Agreement)
other than for Cause, death or disability or Executive
shall terminate his employment for Good Reason, then
the Company shall make the following payments to
Executive within 15 days following the date of such
termination of employment (the "Termination Date"),
subject in each case to any applicable payroll or
other taxes required to be withheld.
(1) The Company shall pay Executive a lump sum
amount in cash equal to the sum of (a)
Executive's monthly base salary multiplied by
a number equal to 24 minus the number of whole
months elapsed from the date of the Change of
Control to the Termination Date (the
"Multiplier") and (b) Executive's average
annual bonus including in such average any
such annual bonus earned (even though such
bonus may be paid in the year following the
year in which earned), (computed over the
shorter of (x) the period of Executive's
employment by the Company or (y) five calendar
years each as measured to the day immediately
preceding the Termination Date) divided by 12
and multiplied by the Multiplier.
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(2) The Company shall pay Executive a lump sum
amount in cash equal to accrued but unpaid
salary and bonus through the Termination Date,
and unpaid salary with respect to any vacation
days accrued but not taken as of the
Termination Date.
B. DEFINITIONS.
(1) As used in this Agreement, "Change of Control"
shall mean an event involving the Company of a
nature that would be required to be reported
in response to Item 6(e) of Schedule 14A of
Regulation 14A promulgated under the
Securities Exchange Act of 1934, as amended
(the "Exchange Act"), assuming that such
Schedule, Regulation and Act applied to the
Company, provided that such a Change of
Control shall be deemed to have occurred at
such time as: (i) any "person" (as that term
is used in Sections 13(d) and 14(d)(2) of the
Exchange Act) (other than an Excluded Person
(as defined below)) becomes, directly or
indirectly, the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act) of
securities representing 20% or more of the
combined voting power for election of members
of the Board of Directors of the then
outstanding voting securities of the Company
or any successor of the Company, excluding any
person whose beneficial ownership of
securities of the Company or any successor is
obtained in a merger or consolidation not
included in paragraph (iii) below; (ii) during
any period of two consecutive years or less,
individuals who at the beginning of such
period constituted the Board of Directors of
the Company cease, for any reason, to
constitute at least a majority of the Board,
unless the appointment, election or nomination
for election of each new member of the Board
(other than a director whose initial
assumption of office is in connection with an
actual or threatened election contest,
including but not limited to a consent
solicitation, relating to the election of
directors of the Company) was approved by a
vote of at least two-thirds of the members of
the Board of Directors then still in office
who were members of the Board at the beginning
of the period or whose appointment, election
or nomination was so approved since the
beginning of such period; (iii) there is
consummated any merger, consolidation or
similar transaction to which the Company is a
party as a result of which the persons who
were equity holders of the Company immediately
prior to the effective date of the merger or
consolidation shall have beneficial ownership
of less than 50% of the combined voting power
for election of members of the Board of
Directors (or equivalent) of the surviving
entity or its parent following the effective
date of such merger or consolidation; (iv) any
sale or other disposition (or similar
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transaction) (in a single transaction or
series of related transactions) of (x) 50% or
more of the assets or earnings power of the
Company or (y) business operations which
generated a majority of the consolidated
revenues (determined on the basis of the
Company's four most recently completed fiscal
quarters for which reports have been
completed) of the Company and its subsidiaries
immediately prior thereto, other than a sale,
other disposition, or similar transaction to
an Excluded Person or to an entity of which
equityholders of the Company beneficially own
at least 50% of the combined voting power; (v)
any liquidation of the Company. For purposes
of this definition of Change of Control, the
term "Excluded Person" shall mean and include
(i) any corporation beneficially owned by
shareholders of the Company in substantially
the same proportion as their ownership of
shares of the Company and (ii) the Company.
(2) As used in this Agreement, "Good Reason" shall
mean the occurrence, following a Change of
Control, of any one of the following events
without Executive's consent: (i) the Company
assigns Executive to any duties substantially
inconsistent with his position, duties,
responsibilities, status or reporting
responsibility with the Company immediately
prior to the Change of Control, or assigns
Executive to a position that does not provide
Executive with substantially the same or
better compensation, status, responsibilities
and duties as Executive enjoyed immediately
prior to the Change of Control; (ii) the
Company reduces the amount of Executive's base
salary as in effect as of the date of the
Change of Control or as the same may be
increased thereafter from time to time, except
for across-the-board salary reductions
similarly affecting all senior executives of
the Company; (iii) the Company fails to pay
Executive an annual bonus consistent with past
practices and bonuses consistent with past
practices are paid to any other senior
executives of the Company; (iv) the Company
changes the location at which Executive is
employed by more than 50 miles from the
location at which Executive is employed as of
the date of this Agreement; or (v) the Company
breaches this Agreement in any material
respect, including without limitation failing
to obtain a succession agreement from any
successor to assume and agree to perform this
Agreement.
(3) For Cause. As used in this Agreement, "Cause"
shall mean (i) any material act of dishonest
constituting a felony (of which Executive is
convicted or pleads guilty) which results or
is intended to result directly or indirectly
in substantial gain or personal enrichment to
Executive at the expense of the Company, or
(ii) after notice of
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breach delivered to Executive specifying in
reasonable detail and a reasonable opportunity
for Executive to cure the breaches specified
in the notice, the Board, acting by a two
thirds vote, after a meeting held for the
purpose of making such determination and after
reasonable notice to Executive and an
opportunity for him together with his counsel
to be heard before the Board, determines, in
good faith, other than for reasons of physical
or mental illness, Executive willfully and
continually fails to substantially perform his
duties pursuant to this Agreement and such
failure results in demonstrable material
injury to the Company. The following shall not
constitute Cause: (i) Executive's bad judgment
or negligence, (ii) any act or omission by
Executive without intent of gaining therefrom
directly or indirectly a profit to which
Executive was not legally entitled, (iii) any
act or omission by Executive with respect to
which a determination shall have been made
that Executive met the applicable standard of
conduct prescribed for indemnification or
reimbursement of payment of expenses under the
By-Laws of the Company or the laws of the
State of Delaware as in effect at the time of
such act or omission.
3. MITIGATION. Executive is not required to seek other employment
or otherwise mitigate the amount of any payments to be made by
the Company pursuant to this Agreement.
4. ASSIGNMENT. Neither Company nor Executive shall have the right
to assign its respective rights pursuant to this Agreement.
The Company shall require any proposed 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, by agreement in form and substance
reasonably satisfactory to Executive, to expressly assume and
agree to perform this agreement in the same manner and to the
same extent that the Company would be required to perform it
if no such succession had taken place, concurrent with the
execution of a definitive agreement with the Company to engage
in such transaction.
5. This Agreement shall be binding on the inure to the benefit of
Executive and his heirs and the Company and any permitted
assignee. The Company shall not engage in any transaction,
including a merger or sale of assets unless, as a condition to
such transaction such successor organization assumes the
obligations of the Company pursuant to this Agreement.
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6. NOTICES.
If to Company: DeCrane Aircraft Holdings, Inc.
2361 Rosecrans Avenue, Suite 180
El Segundo, CA 90245
Attention: Chief Financial Officer
Fax: 310-643-0746
If to Executive: Jeff Smith
_________________________________
_________________________________
Fax: ___________________________
7. FACSIMILE SIGNATURES, EXECUTION AND DELIVERY. This Agreement
shall be effective upon transmission of a signed facsimile by
one party to the other.
8. MISCELLANEOUS. This Agreement supersedes and makes void any
prior agreement between the parties and sets forth the entire
agreement and understanding of the parties hereto with respect
to the matters covered hereby, and may not otherwise be
amended or modified except by written agreement executed by
the Company and the Executive. This Agreement shall be
governed by and construed in accordance with the laws of the
State of California.
This Agreement has been executed on the date specified in the first
paragraph.
DECRANE AIRCRAFT HOLDINGS, INC.
By:
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Authorized Signature
EXECUTIVE
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Jeff Smith
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