Exhibit 10.4
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AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
This Amendment ("Amendment") dated as of January 1, 1996, is between
BE Aerospace, Inc., a Delaware corporation (the "Company") and Thomas P.
McCaffrey (the "Executive"). The parties agree as follows:
1. Reference to Agreement; Definitions. Reference is made to that
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certain Employment Agreement dated as of May 1, 1993, between the Company and
the Executive (the "Agreement"). Terms defined in the Agreement and not
otherwise defined herein are used herein with the meanings so defined.
2. Amendments to Agreement. The Agreement is amended as follows,
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effective upon the date first written above:
2.1. Amendment to Section 1. Section 1 of the Agreement is
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deleted in its entirety and replaced with the following:
"1. Employment. The Company shall employ the Executive, and
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the Executive shall perform services for and continue in the employment of
the Company, for an initial period of three (3) years commencing on January
1, 1996, and ending on December 31, 1999, whereupon the Executive's
employment hereunder shall automatically be extended from year to year on
and after January 1, 2000, until either the Company or the Executive gives
the other party at least ninety (90) days' written notice prior to the then
applicable "Expiration Date" (as hereinafter defined) of its or his desire
to terminate this Agreement, unless such employment shall have been sooner
terminated as hereinafter set forth. For purposes of this Agreement, (i)
the term "Employment Period" shall mean the initial five (5) year period
and all extensions thereof, if any, as aforesaid, and (ii) the term
"Expiration Date" shall mean December 31 of either calendar year 1999, or
any subsequent calendar year if the Employment Period is extended on and
after January 1, 2000, as aforesaid."
2.2. Amendment to Section 3(a). Section 3(a) of the Agreement is deleted
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in its entirety and replaced with the following:
"(a) Salary. Effective as of August 21, 1995, the Executive shall
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receive an annual salary (the "Salary") of $225,000 during each
year of the Employment Period. Such rate shall be subject to adjustment
from time to time by the Board of Directors; provided, however, that it
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shall at no time be adjusted below $225,000. Except as otherwise provided
in this Agreement, the Salary shall be payable biweekly or in accordance
with the Company's current payroll practices, and shall be pro-rated for
any period of service less than a full year."
2.3. Amendment to Section 4(c). Section 4(c) of the Agreement is deleted
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in its entirety and replaced with the following:
"(c) Incapacity. If in the reasonable judgment of the Board of
Directors of the Company, as a result of the Executive's incapacity
due to physical or mental illness or otherwise, the Executive shall
for at least six (6) consecutive months during the term of this
Agreement have been unable to perform his duties under this Agreement
on a full-time basis, the Company may terminate the Executive's
employment as provided in this Section 4(c). If the Company desires
to so terminate the Executive, the Company shall:
(i) give prompt notice to the Executive of any such
termination; and,
(ii) until the Expiration Date, continue to pay to the Executive
(or in the event of the Executive's subsequent death, such person as
the Executive shall have designated in a notice filed with the
Company, or, if no such person shall have been designated, to his
estate) his Salary (in effect as of the date of such termination) and
(to the extent legally practicable) extend to the Executive the
applicable fringe benefits referred to in Section 3(d) above.
Any dispute between the Board of Directors of the Company and the
Executive with respect to the Executive's incapacity shall be settled
by reference to a competent medical authority mutually agreed to by
the Board of Directors and the Executive or his duly authorized
representative, whose decision shall be binding on all parties. The
obligations of the Company pursuant to this Section 4(c) shall survive
any termination of the Executive's employment pursuant to this Section
4(c)."
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2.4. Amendment to Section 4(e). Section 4(e) of the Agreement is deleted
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in its entirety and replaced with the following:
"(e) Change of Control. If a "Change of Control" (as that term
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is defined in that certain Indenture dated as of March 3, 1993, by and
between the Company and United States Trust Company of New York, as
trustee, in connection with the Company's 9 3/4% Senior Notes due
2003) occurs during the Employment Period and, as a result of such
Change of Control, this Agreement or the Executive's employment is
terminated for any reason, or the Executive resigns his employment
because any of the Executive's position, powers, duties or
responsibilities under Section 2 above are changed without his
agreement or any compensation or benefit payable or otherwise extended
to the Executive hereunder (including without limitation Salary,
incentive bonus, expenses, fringe benefits and automobile set forth in
Section 3 above) is eliminated or reduced, the Company or its
successor in interest shall:
(i) give prompt notice to the Executive of any such termination,
change, elimination or reduction; and
(ii) within thirty (30) days after the Termination Date, pay to
the Executive (or in the event of the Executive's subsequent death,
such person as the Executive shall have designated in a notice filed
with the Company, or, if no such person shall have been designated, to
his estate) a lump sum amount equal to the Executive's Salary in
effect as of the Termination Date, which lump sum amount shall not be
pro-rated and shall be paid in addition to the Salary due and payable
under (iii) below;
(iii) until the Expiration Date, continue to pay to the
Executive (or in the event of the Executive's subsequent death, such
person as the Executive shall have designated in a notice filed with
the Company, or, if no such person shall have been designated, to his
estate) his Salary (in effect as of the date of the Change of
Control), and to extend to him the incentive bonus, expenses, fringe
benefits and automobile set forth in Section 3 above.
The obligations of the Company pursuant to this Section 4(e)
shall survive any termination of this
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Agreement or the Executive's employment or any resignation of such
employment by the Executive pursuant to this Section 4(e)."
2.5. Amendment to Section 4. Section 4 of the Agreement is amended by
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adding a new paragraph (f) as follows:
"(f) Severance Pay. If the Executive's employment hereunder is
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not extended and this Agreement is terminated as set forth in Section
1 above, or this Agreement or the Executive's employment is terminated
as a result of any Change of Control under Section 4(c) above, the
Company or its successor in interest shall (i) give to the Executive
ninety (90) days' prior written notice of such termination, and (ii)
within thirty (30) days after the Termination Date, pay to the
Executive (or in the event of the Executive's subsequent death, such
person as the Executive shall have designated in a notice filed with
the Company, or if no such person shall have been designated, to his
estate) a lump sum amount equal to the Executive's Salary in effect as
of the Termination Date, which lump sum amount shall not be pro-rated.
The obligations of the Company pursuant to this Section 4(f) shall
survive any termination of this Agreement or the Executive's
employment as aforesaid."
2.6. Amendment to Section 6. Paragraphs (i) and (ii) in Section 6 of the
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Agreement are deleted in their entirety and replaced with the following:
"(i) if to Employer, to it at:
BE Aerospace, Inc.
1400 Corporate Center Way
Wellington, Florida 33414
(ii) if to the Executive, to him at:
c/o BE Aerospace, Inc.
1400 Corporate Center Way
Wellington, Florida 33414"
3. Miscellaneous. Except as amended by this Amendment, all terms and
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conditions of the Agreement shall remain in full force and effect. This
Amendment constitutes the entire understanding of the parties with respect to
the subject matter hereof and supersedes all prior
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and current understandings and agreements, whether written or oral. This
Amendment may be amended or modified only by a written instrument signed by the
Executive and by a duly authorized representative of the Company. This
Amendment may be executed in any number of counterparts which together shall
constitute one instrument, shall be governed by and construed in accordance with
the laws (other than the conflict of laws rules) of the State of Florida and
shall bind and inure to the benefit of the parties hereto and their respective
successors, assigns and heirs.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands, as
of the date first written above.
THOMAS P. MCCAFFREY
/s/ Thomas P. McCaffrey
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BE AEROSPACE, INC.
By: /s/ R. J. Khoury
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Title: President
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