EXHIBIT 10.4.1
SIXTEENTH AMENDMENT TO ROHR, INC,
MANAGEMENT INCENTIVE PLAN
(RESTATED, 1982)
Pursuant to the provisions of Section 9, the Rohr, Inc., Management Incentive
Plan (Restated 1982) (the "Plan") is hereby amended as follows:
1. Section 4(b) is hereby amended to delete the entire second, unnumbered
paragraph containing Incentive Targets and substituting the following
language:
"Incentive Targets of Participants will be established by the Committee
each Incentive Year."
2. Section 11 is hereby amended in its entirety to read in full as follows:
"SECTION 11 - VESTING PROVISIONS
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(a) In the event of a Change in Control of the Corporation, all rights
under the Plan for any Participant who was an officer at the time of
the Change in Control shall become fully vested, notwithstanding the
subsequent amendment, suspension or termination of the Plan; and
further provided, however, such vesting will not affect the exact
amount of his award (which shall be determined as provided at Section
4, as modified by Section 11(b) hereof) or accelerate or otherwise
affect the payment of his award (which shall continue to be determined
as provided at Section 6); and further provided, however, that such
vesting shall be conditioned in connection with said change in
control, upon said officer not having obtained, except proportionately
as a shareholder, a participatory interest in the ownership of the
surviving corporation (in the case of merger or consolidation), in the
ownership of the entity beneficially owning the requisite percentage
of company stock (in the case of an entity owning 40 percent of Rohr),
in the receipt of assets or earning power (in the case of a transfer
of 50 percent or more of the assets or earning power) , or in loans,
advances, guarantees, pledges or other financial assistance or tax
credits obtained by the Acquiring Party referred to at sub-paragraph
(c)(i)(D) hereof.
(b) Following the end of the fiscal year in which a change in control
occurs, then notwithstanding any other provision in the Plan,
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the award for an officer shall not be less than the full amount of his
Incentive Target, established for his grade at the beginning of the
Incentive Year, multiplied by a fraction whose denominator is twelve
and whose numerator is the number of full and partial months of the
then-current fiscal year which shall have elapsed as of the later of
the date of the Change in Control or of its legal consummation, as for
example, the effective date of a merger. Notwithstanding the
foregoing and notwithstanding the provisions of Section 11(a), in the
event, after a Change in Control and prior to the payment of the
incentive for such fiscal year, that an officer has either (x) a
Voluntary Termination of his employment or (y) a Termination for
Cause, then in either case, no payment shall be due under the Plan for
such officer.
(c) For purposes of this Section, the following definitions will apply:
(i) "Change in Control" shall mean:
(A) An agreement shall have been entered or a document signed
providing for the merger, consolidation or liquidation of
the Company; or
(B) The beneficial ownership (the direct or indirect beneficial
ownership for purposes of Section 13(d) of the Securities
Exchange Act of 1934 (the "1934 Act") and Regulations 13D-G
thereunder, or any comparable or successor law or
regulation) of 20 percent or more of the Company's shares by
any person or associated or affiliated group of persons (as
defined by Rule 12b-2 of the General Rules and Regulations
under the 1934 Act, as in effect on the date hereof); or
(C) An agreement shall have been entered or a document signed
providing for the sale, mortgage, lease or other transfer in
one or more transactions (other than transactions in the
ordinary course of business) of the assets or earning power
aggregating more than 50 percent of the assets or earning
power of the Company and its subsidiaries (taken as a whole)
to any Person or associated or affiliated group of Persons;
or
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(D) Any Acquiring Person (as hereinafter defined) shall
receive the benefit, directly or indirectly (except
proportionately as a shareholder or upon terms and
conditions not less favorable to the Company than the
Company would be able to obtain in arm's length
negotiations with an unaffiliated party) of any loans,
advances, guarantees, pledges or other financial
assistance, or any tax credits or other tax advantage
provided by the Company or its subsidiaries; or
(E) Change in Control shall also mean, and a Change of Control
shall be deemed to have occurred, if at any time, the
Board of Directors of the Company shall be composed of a
majority of Directors which are not Continuing Directors.
(ii) "Acquiring Person" shall mean any Person (as defined) who or
which, together with all Affiliates and Associates (as such
terms are defined in Rule 12b-2 of the General Rules and
Regulations under the 1934 Act, as in effect on the date
hereof) of such Person, shall be the Beneficial Owner (as
defined in Rule 13d-3 of the General Rules and Regulations
under the 1934 Act, as in effect on the date hereof) of 15
percent or more of the Voting Shares of the Company then
outstanding; provided, however, that an Acquiring Person shall
not include the Company, any wholly-owned subsidiary of the
Company and any employee benefit plan of the Company or of a
subsidiary of the Company or any Person holding Voting Shares
of the Company for or pursuant to the terms of any such plan.
For purposes of this paragraph, the percentage of the
outstanding shares of Voting Shares of which a Person is a
Beneficial Owner shall be calculated in accordance with said
Rule 13d-3.
(iii) "Continuing Director" shall mean a director if he or she was a
member of the Board of Directors as of the date hereof and any
successor of a Continuing Director or director filling a newly
created position on the Board of Directors who is elected or
nominated to succeed a Continuing Director or to fill such
newly created position by a majority of Continuing Directors
then on the Board.
(iv) "Person" shall mean any individual, firm, partnership,
corporation, trust, estate, association, group (as such term is
used in Rule 13d-5 under the Exchange Act) or other entity, and
any two or more of the foregoing acting in concert or pursuant
to an agreement, arrangement, or understanding for the purpose
of acquiring,
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holding, voting or disposing of capital stock of
the Company, and shall include any successor (by merger or
otherwise) of such entity.
(v) "Voting Shares" shall mean (i) shares of the Company's $1 par
value common stock, and (ii) any other share of capital stock
of the Company entitled to vote generally in the election of
directors or entitled to vote in respect of any merger,
consolidation, sale of all or substantially all of the
Company's assets, liquidation, dissolution or winding up.
References to a percentage or portion of the outstanding Voting
Shares shall be deemed a reference to the percentage or portion
of the total votes entitled to be cast by the holders of the
outstanding Voting Shares.
(vi) "Termination for Cause" shall mean termination of the
Participant's employment by the Company solely by reason of one
or more of:
(1) an act by the Participant constituting a felony, and
resulting in a conviction, and resulting or intended to
result directly or indirectly in substantial gain or
personal enrichment at the expense of the Company or any
of its affiliated corporations, or
(2) the Participant's willful and deliberate engagement in an
act of gross misconduct that results in demonstrably
material and irreparable injury to the Company or any of
its affiliated corporations, and which was demonstrably
(A) due in bad faith and
(B) without a reasonable belief that such act was in the
best interests of the Company, or
(3) the Participant's willful, deliberate and continued
failure substantially to perform the Participant's duties
to the Company, which is demonstrably committed
(A) in bad faith,
(B) without a reasonable belief that any such breach of
duties is in the best interests of the Company, and
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(C) which is not remedied within three months, after the
written demand notice referred to below.
In the event a Termination for Cause is believed to be
justified, then a written notice thereof shall be delivered
to the Participant by the Company's chief executive officer
(or by the Company's Board of Directors if the Participant
is the chief executive officer) which specifically and in
detail identifies and explains the manner in which it is
believed that the Participant has performed an act which
justifies a Termination for Cause.
(vii) "Voluntary Termination" is the voluntary termination of
employment by the Participant not constituting a Constructive
Termination.
"Constructive Termination" means any of the following events
unless it occurs with the Participant's express prior written
consent or in connection with the termination of the
Participant's employment for Disability, Retirement or
Termination for Cause.
(For these purposes, "Retirement" means a retirement on or
after the Participant's reaching the age of age 65.)
A. Any significant change in the Participant's position,
duties, titles, offices, responsibilities and status with
the Company as such existed immediately prior to a Change in
Control or the assignment to the Participant by the Company
of any duties inconsistent therewith, or in derogation
thereof.
B. A reduction within twenty-four (24) months after the
occurrence of a Change in Control in the Participant's base
salary as in effect on the date of the Change in Control, or
the Company's failure to increase the Participant's base
salary after a Change in Control at a rate which is
substantially similar to the average increase in base salary
effected during the preceding twelve (12) months for those
executives of the Company who are in the same compensation
category as the Participant;
C. Any failure by the Company to continue in effect any benefit
plan or arrangement or any material fringe benefit in which
the Participant was participating immediately prior to a
Change in Control, or to substitute and continue other plans
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providing the Participant with substantially similar
benefits, or any action by the Company that would adversely
affect the Participant's participation in or materially
reduce the Participant's benefits under any such benefit
plan or arrangement or deprive the Participant of any
material fringe benefit enjoyed by the Participant at the
time of the Change in Control;
D. Any failure by the Company to continue in effect any
incentive plan or arrangement, such as but not limited to
the Plan, in which the Participant is participating at the
time of a Change in Control, or to substitute and continue
other plans or arrangements providing the Participant with
substantially similar benefits, or the taking of any action
by the Company that would adversely affect the Participant's
participation in any such incentive plan or reduce the
Participant's benefits under any such incentive plan in an
amount which is not substantially similar, on a percentage
basis, to the average percentage reduction of benefits under
any such incentive plan effected during the preceding twelve
(12) months for all officers of the Company participating in
any such incentive plan;
E. The Participant's relocation to any place other than the
location at which the Participant performed the Executive's
duties prior to a Change in Control; or
F. Any material breach by the Company of any provision of this
Plan."
3. In all other respects, the Plan is hereby ratified, confirmed and approved.
IN WITNESS WHEREOF, Rohr, Inc., has caused its duly authorized officer to
execute this Amendment on the 7th day of June 1996.
ROHR, INC.
By: /s/ R.W. MADSEN
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R. W. Madsen
Vice President, General Counsel
and Secretary
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