Exhibit 10.5
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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 Marco Lanza (the
"Executive"). The parties agree as follows:
1. Reference to Agreement; Definitions. Reference is made to that certain
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Employment Agreement dated as of March 1, 1992, between the Company (formerly
known as BE Avionics, Inc.) 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, effective
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upon the date first written above:
2.1. Amendment to Section 1. Section 1 of the Agreement is deleted in
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its entirety and replaced with the following:
"1. Employment. The Company shall employ the Executive, and the
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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 three (3) 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 2. Section 2 of the Agreement is deleted in its
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entirety and replaced with the following:
"2. Positions and Duties. The Executive shall serve the Company in
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the capacity of Executive Vice President, shall be accountable to, and
shall have such other powers, duties and responsibilities consistent with
this capacity as may from time to time be prescribed by, the President of
the Company, his designee or the Board of Directors. The Executive shall
perform and discharge,
faithfully, diligently and to the best of his ability, such duties and
responsibilities. The Executive shall devote substantially all of his
working time and efforts to the business and affairs of the Company."
2.3. 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 $240,000 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 shall at no time
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be adjusted below $240,000. 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."
2.4. 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
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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
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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)."
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) Change of Control. If a 'Change of Control' (as that term is
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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;
(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.
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The obligations of the Company pursuant to this Section 4(f) shall
survive any termination of this Agreement or the Executive's employment or
any resignation of such employment by the Executive pursuant to this
Section 4(e)."
2.6. Amendment to Section 6. Paragraphs (i) and (ii) in Section 6 of
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the 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"
2.7. Amendment to Section 8. Section 8 of the Agreement is deleted in its
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entirety and replaced with the following:
"8. Miscellaneous.
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(a) Enforceability. The invalidity and unenforceability of any term
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or provision hereof shall not affect the validity or enforceability of any
other term or provision hereof. The headings in this Agreement are for
convenience of reference only and shall not alter or otherwise affect the
meaning hereof. This Agreement may be executed in any number of
counterparts which together shall constitute one instrument and shall be
governed by and construed in accordance with the laws (other than the
conflict of laws rules) of the State of Florida.
(b) Assignment. This Agreement shall be binding upon and inure to
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the benefit of the parties hereto and their respective heirs, successors
and permitted assigns. This Agreement may be assigned by the Company.
Executive may not assign or delegate Executive's duties under this
Agreement without the Company's prior written approval."
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 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
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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.
MARCO LANZA
/s/ Marco Lanza
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BE Aerospace, Inc.
By: /s/ R. J. Khoury
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Robert J. Khoury
President
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