exv10w7






Exhibit 10.7




VOUGHT AIRCRAFT INDUSTRIES, INC.




CHANGE IN CONTROL SEVERANCE AGREEMENT



     This Change in Control Severance Agreement (the “Agreement”) is made and entered into
effective as of May 6, 2010 (the “Effective Date”), by and between Ronald Muckley (the
“Executive”) and Vought Aircraft Industries, Inc. (the “Company”). Certain capitalized terms used
in this Agreement are defined in Section 1 below.



RECITAL




     A. The Company may enter into a merger agreement, by and among the Company, Triumph Group,
Inc. (“TGI”) and a wholly-owned direct or indirect subsidiary of TGI (together with TGI, the
“Buyer”), pursuant to which the Company may be acquired by the Buyer (the “Merger Agreement”).



AGREEMENT




     In consideration of the mutual covenants herein contained and the continued employment of the
Executive by the Company (or one of its Affiliates), the parties agree as follows:



     1. Definition of Terms. The following terms referred to in this Agreement shall have
the following meanings:



          (a) “Affiliate” shall mean any entity which owns or controls, is owned or controlled by, or is
under common control with, the Company.




          (b) “Annual Base Salary” shall mean the Executive’s annual base salary as in effect
immediately prior to the Termination Date, provided, however, that the Annual Base Salary shall be
no less than the Executive’s annual base salary as in effect immediately prior to the date of a
Change in Control.




          (c) “Board” shall mean the Board of Directors of the Company.




          (d) “Cause” shall have the definition provided in an applicable employment agreement between
the Company and the Executive or, if no such agreement exists or such agreement does not contain
such a definition, then “Cause” shall mean:




               (i) The Executive’s failure to substantially perform his or her duties as an employee of the
Company (other than any such failure resulting from the Executive’s Disability) which failure has
not been cured within thirty (30) days after the Executive’s receipt of notice thereof from the
Company, provided that the Executive shall not be entitled to a cure any such failure if the
Executive has previously cured any failure under this Section 1(d)(i) in the immediately
preceding six months;



 









 





               (ii) The Executive’s willful misconduct, gross negligence or a breach of fiduciary duty;



               (iii) The Executive’s willful and material breach of any written agreement between the Company
and the Executive which has not been cured within thirty (30) days after the Executive’s receipt of
notice thereof from the Company, provided that the Executive shall not be entitled to cure any such
breach if the Executive has previously cured any breach under this Section 1(d)(iii) in the
immediately preceding six months;



               (iv) The Executive’s having been the subject of any order, judicial or administrative,
obtained or issued by the Securities and Exchange Commission, for any securities violation
involving fraud, including, for example, any such order consented to by the Executive in which
findings of facts or any legal conclusions establishing liability are neither admitted nor denied;



               (v) The Executive’s conviction of, indictment for, plea of no contest, plea of nolo
contendere, or imposition of unadjudicated probation for any felony or crime involving moral
turpitude;



               (vi) The Executive’s unlawful use (including being under the influence) or possession of
illegal drugs on the Company’s premises or while performing the Executive’s duties and
responsibilities under this Agreement; or



               (vii) The Executive’s commission of an act of fraud, embezzlement, or misappropriation, in
each case, against the Company.



          (e) “Change in Control” shall mean the consummation of the Closing (as defined in the Merger
Agreement).




          (f) “Code” shall mean the Internal Revenue Code of 1986, as amended, together with the
Department of Treasury Regulations and other official guidance promulgated thereunder.




          (g) “Disability” shall mean, at any time the Company or any of its Affiliates sponsors a
long-term disability plan for the Company’s employees, “disability” as defined in such long-term
disability plan for the purpose of determining a participant’s eligibility for benefits, provided,
however, that if the long-term disability plan contains multiple definitions of disability,
“Disability” shall refer that definition of disability which, if the Executive qualified for such
disability benefits, would provide coverage for the longest period of time. The determination of
whether the Executive has a Disability shall be made by the person or persons required to make
disability determinations under the long-term disability plan. At any time the Company does not
sponsor a long-term disability plan for its employees, Disability shall mean the Executive’s
inability to perform, with or without reasonable accommodation, the essential functions of his or
her position with the Company for a total of three months during any six-month period as a result
of incapacity due to mental or physical illness as determined by a physician selected by the
Company or its insurers. Any refusal by the Executive to submit to a medical examination for the
purpose of determining Disability shall be deemed to constitute conclusive evidence of the
Executive’s Disability.




          (h) The Executive shall have “Good Reason” to resign the Executive’s employment within ninety
(90) days following the occurrence of any of the following events:







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               (i) a material diminution in the nature or scope of the Executive’s responsibilities,
authorities or duties or the assignment of duties and responsibilities materially inconsistent with
those normally associated with the Executive’s position, in each case, other than any change
resulting from a transaction where the Executive remains in a similar position with respect to the
business of the Company as operated prior to the transaction, notwithstanding that the Executive is
in a diminished role with respect to a combined company resulting from such transaction;



               (ii) a material reduction in the amount of the Executive’s Annual Base Salary, as in effect
from time to time;



               (iii) any material breach of this Agreement by the Company; or



               (iv) a material change to the geographic location at which the Executive must provide services
(within the meaning of Code Section 409A), provided, however, that in no event shall a relocation
of less than 50 miles constitute a material change for purposes of this clause (iv).


Notwithstanding the foregoing, Executive may terminate his or her employment for Good Reason only
if the Executive provides written notice to the Company specifying the event(s) purported to
constitute Good Reason in reasonable detail and the Company has not remedied such event(s) within
thirty (30) days following delivery of such notice (which thirty (30) day period shall not count
against the ninety (90) day period specified above).




          (i) “Separation from Service” shall mean the Executive’s “separation from service” from the
Company (within the meaning of Code Section 409A(a)(2)(A)(i) and Treasury Regulation Section
1.409A-1(h)).




          (j) “Target Annual Bonus” shall mean the last target bonus approved by the Board for the
Executive; provided, however, that the Target Annual Bonus shall be no less than the last target
bonus approved by the Board for the Executive prior to the date of a Change in Control.




          (k) “Termination Date” shall mean the date on which the Executive incurs a Separation from
Service.




     2. Term of Agreement.



          (a) No Change in Control. If a Change in Control has not been consummated on or
prior to the six-month anniversary of the Effective Date, then this Agreement shall terminate as
of the close of business on the six-month anniversary of the Effective Date.




          (b) No Termination. If a Change in Control is consummated on or prior to the
six-month anniversary of the Effective Date, but the Executive has not incurred a Separation from
Service on or prior to the first anniversary of the Change in Control, then this Agreement shall
terminate as of the close of business on the first anniversary of the Change in Control.




          (c) Change in Control and Qualifying Termination. If a Change in Control occurs on
or prior to the six-month anniversary of the Effective Date and the Executive incurs a Separation
from Service by reason of a termination of the Executive’s employment by the




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Company without Cause or by the Executive for Good Reason, in either case, on or prior to the
first anniversary of the Change in Control, then this Agreement shall terminate as of the first
date that all obligations of the parties under this Agreement have been satisfied.




     In any case, upon the termination of this Agreement, the Company shall cease to have any
obligation to make any payments hereunder, and, except as provided in Section 11(a), this
Agreement shall become null and void and shall have no further force or effect.



     3. Termination without Cause or Resignation for Good Reason following a Change in
Control.



          (a) Severance. If (x) within six months after the Effective Date, the Company
consummates a Change in Control, and (y) upon or subsequent to the consummation of such Change in
Control and prior to the first anniversary of the Effective Date, the Executive incurs a
Separation from Service by reason of a termination of the Executive’s employment by the Company
without Cause or by the Executive for Good Reason, then, subject to the Executive signing, within
fifty (50) days following the Termination Date, and not revoking a release of claims in
substantially the form attached hereto as Exhibit A, the Company shall:




               (i) Pay to the Executive, in equal installments over the twenty-four (24) month period
following the Termination Date in accordance with the Company’s regular payroll practice, an
amount equal to the Annual Base Salary that the Executive would have been entitled to receive if
the Executive had continued his or her employment hereunder for a period of twenty-four (24)
months following the Termination Date, which amounts shall be payable commencing on the Company’s
first payroll date occurring on or after the 60th day following the Termination Date (the “First
Payroll Date”), and any amounts that would otherwise have been paid pursuant to this Section
3(a)(i) prior to such payroll date shall be paid in a lump-sum on the First Payroll Date; and



               (ii) Pay to the Executive an amount equal to two (2) times the Executive’s Target Annual
Bonus, payable in a lump-sum on the First Payroll Date.



     Each payment under this Section 3 shall be treated as a separate payment for purposes
of Code Section 409A. The payments under this Section 3 shall not be deemed salary or
other compensation to the Executive for the purposes of computing benefits to which he or she may
be entitled under any pension plan or other arrangement of the Company or its Affiliates maintained
for the benefit of its employees, unless such plan or arrangement expressly provides otherwise.



          (b) Six-Month Delay. Notwithstanding anything to the contrary in this Section
3, no payments under this Section 3 will be paid during the six-month period following
the Executive’s Separation from Service unless the Company determines, in its good faith judgment,
that paying such amounts at the time or times indicated in this Section would not cause the
Executive to incur an additional tax under Code Section 409A (in which case such amounts shall be
paid at the time or times indicated in this Section). If the payment of any amount is delayed as a
result of the previous sentence, on the first day following the end of the six-month period (or
such earlier date upon which such amount can be paid under Code Section 409A without being subject
to such additional taxes, including upon the Executive’s death), the Company will pay the Executive
a lump-sum amount equal to the cumulative amount that would have otherwise been previously paid to
the Executive under this Agreement.







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     4. Non-Competition; Non-Solicitation. The Executive acknowledges that the Company has
provided and the Company agrees to continue to provide the Executive with access to its
confidential, proprietary, and/or trade secret information, including confidential information of
third parties such as customers, suppliers, and business affiliates; specialized training and
knowledge regarding the Company’s methodologies and business strategies; and/or support in the
development of goodwill such as introductions and customer relationship information. The foregoing
is not contingent on continued employment, but upon the Executive’s use of the access, specialized
training, and/or goodwill support provided by Company for the exclusive benefit of the Company and
upon the Executive’s full compliance with the restrictions on the Executive’s conduct provided for
in this Agreement. Ancillary to the rights provided to the Executive as set forth in this
Agreement and any addenda or amendments to this Agreement, the Company’s provision of confidential,
proprietary, and/or trade secret information, specialized training, and/or goodwill support to the
Executive, and the Executive’s agreements regarding the use of same, and in order to protect the
value of any equity-based compensation, training, goodwill support and/or the confidential
information described above, the Company and the Executive agree to the following provisions
against unfair competition, which the Executive acknowledges represent a fair balance of the
Company’s rights to protect its business and the Executive’s right to pursue employment:



          (a) The Executive shall not, at any time during the Executive’s employment with the
Company or during the twenty-four (24) month period following the Termination Date (the
“Non-Compete Period”), directly or indirectly engage in, have any equity interest in, or manage or
operate any person, firm, corporation, partnership or business (whether as director, officer,
employee, agent, representative, partner, security holder, consultant or otherwise) that engages in
any business which competes with any Business (as defined below) of the Company or its Affiliates
anywhere in the world where the Company conducts business or, on the Termination Date, has plans to
conduct business in the twelve (12) month period following the Executive’s Termination Date;
provided, however, that the Executive shall be permitted to acquire a passive stock interest in
such a business provided the stock acquired is publicly traded and is not more than two percent
(2%) of the outstanding interest in such business.




          (b) During the Non-Compete Period, the Executive shall not, directly or indirectly,
recruit or otherwise solicit or induce (and in the case of an employee, hire or retain) any
employee, customer, subscriber or supplier of the Company (i) to terminate its employment or
arrangement with the Company, (ii) to otherwise change its relationship with the Company or (iii)
to establish any relationship with the Executive or any of his or her affiliates for any business
purpose competitive with the Business of the Company.




          (c) In the event the terms of this Section 4 shall be determined by any
court of competent jurisdiction to be unenforceable by reason of their extending for too great a
period of time or over too great a geographical area or by reason of their being too extensive in
any other respect, such terms will be interpreted and/or reformed to extend only over the maximum
period of time for which they may be enforceable, over the maximum geographical area as to which
they may be enforceable, or to the maximum extent in all other respects as to which they may be
enforceable, all as determined by such court in such action.




          (d) As used in this Section 4 and in Section 5 and Section 6
below, (i) the term “Company” shall include the Company and its direct or indirect parents, if any,
and subsidiaries, and (ii) the term “Business” shall mean the development, production, sale,
maintenance and support






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for aerostructures with respect to commercial, military and business jet aircraft, including
(but not limited to) fuselages, wings and wing assemblies, empennages, aircraft doors, nacelle
components and control surfaces, as such business may be expanded or altered by the Company prior
to the Termination Date.




     5. Nondisclosure of Proprietary Information; Non-Disparagement.



          (a) Except in connection with the faithful performance of the Executive’s duties as an
employee of the Company or pursuant to Section 5(c) and/or Section 5(d) below, the
Executive shall, in perpetuity, maintain in confidence and shall not directly, indirectly or
otherwise, use, disseminate, disclose or publish, or use for his or her or her benefit or the
benefit of any person, firm, corporation or other entity any confidential or proprietary
information or trade secrets of or relating to the Company (including, without limitation, business
plans, business strategies and methods, acquisition targets, intellectual property in the form of
patents, trademarks and copyrights and applications therefor, ideas, inventions, works,
discoveries, improvements, information, documents, formulae, practices, processes, methods,
developments, source code, modifications, technology, techniques, data, programs, other know-how or
materials, owned, developed or possessed by the Company, whether in tangible or intangible form,
information with respect to the Company’s operations, processes, products, inventions, business
practices, finances, principals, vendors, suppliers, customers, potential customers, marketing
methods, costs, prices, contractual relationships, regulatory status, prospects and compensation
paid to employees or other terms of employment), or deliver to any person, firm, corporation or
other entity any document, record, notebook, computer program or similar repository of or
containing any such confidential or proprietary information or trade secrets. The parties hereby
stipulate and agree that as between them the foregoing matters are important, material and
confidential proprietary information and trade secrets and affect the successful conduct of the
businesses of the Company (and any successor or assignee of the Company).




          (b) Upon the Executive’s termination of employment with the Company for any reason, the
Executive will promptly deliver to the Company all correspondence, drawings, manuals, letters,
notes, notebooks, reports, programs, plans, proposals, financial documents, or any other documents
concerning the Company’s customers, business plans, marketing strategies, products or processes.




          (c) The Executive may respond to a lawful and valid subpoena or other legal process, but shall
give the Company the earliest possible notice thereof, shall, as much in advance of the return date
as possible, make available to the Company and its counsel the documents and other information
sought and shall assist such counsel at Company’s expense in resisting or otherwise responding to
such process.




          (d) Nothing in this Agreement shall prohibit the Executive from (i) disclosing information and
documents when required by law, subpoena or court order (subject to the requirements of Section
5(c) above), (ii) disclosing information and documents to his or her attorney or tax adviser
for the purpose of securing legal or tax advice, (iii) disclosing the Executive’s post-employment
restrictions in this Agreement in confidence to any potential new employer, or (iv) retaining, at
any time, his or her personal correspondence, his or her personal rolodex and documents related to
his or her own personal benefits, entitlements and obligations, provided that any






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confidential or proprietary information or trade secrets of or relating to the Company is
first removed from any such rolodex or documents.




          (e) The Executive agrees, while he is employed by the Company and thereafter, to refrain from
disparaging the Company and its Affiliates, including any of their services, technologies or
practices, or any of their directors, officers, agents, employees, former employees,
representatives or stockholders, either orally or in writing; provided, however, that nothing in
the foregoing shall preclude the Executive from making truthful statements that are required by
applicable law, regulation or legal process.




          (f) In addition to the covenants set forth in this Section 5, the Executive shall also
remain bound by all of the terms of the Employee Intellectual Property Agreement (the “Employee
Agreement”) previously entered into between the Executive and the Company, which is incorporated
herein by reference, provided that in the event of a conflict between the Employee Agreement and
this Agreement, the more restrictive agreement shall control. In addition, the Executive shall
remain bound by any similar provisions of any previously executed employment agreement between the
Company and the Executive, provided that in the event of a conflict between the Employee Agreement
and this Agreement, the more restrictive agreement shall control.




     6. Inventions. All rights to discoveries, inventions, improvements and innovations
(including all data and records pertaining thereto) related to the business of the Company, whether
or not patentable, copyrightable, registrable as a trademark, or reduced to writing, that the
Executive may discover, invent or originate during the time the Executive is employed by the
Company, either alone or with others and whether or not during working hours or by the use of the
facilities of the Company (“Inventions”), shall be the exclusive property of the Company. The
Executive shall promptly disclose all Inventions to the Company, shall execute at the request of
the Company any assignments or other documents the Company may deem reasonably necessary to protect
or perfect its rights therein, and shall assist the Company, upon reasonable request and at the
Company’s expense, in obtaining, defending and enforcing the Company’s rights therein. The
Executive hereby appoints the Company as his or her attorney-in-fact to execute on his or her
behalf any assignments or other documents reasonably deemed necessary by the Company to protect or
perfect its rights to any Inventions. In addition to the covenants set forth in this Section
6, the Executive shall also remain bound by all of the terms of the Employee Agreement,
provided that in the event of a conflict between the Employee Agreement and this Agreement, the
more restrictive agreement shall control.



     7. Injunctive Relief. It is recognized and acknowledged by the Executive that a
breach of the covenants contained in Sections 4, 5 and 6 hereof will cause irreparable
damage to the Company and its goodwill, the exact amount of which will be difficult or impossible
to ascertain, and that the remedies at law for any such breach will be inadequate. Accordingly,
the Executive agrees that in the event of a breach of any of the covenants contained in
Sections 4, 5 and/or 6 hereof, in addition to any other remedy which may be available at
law or in equity, the Company will be entitled to specific performance and injunctive relief
without having to prove damages or post bond.



     8. Assignment and Successors. The Company may assign its rights and obligations under
this Agreement to any successor to all or substantially all of the business or the assets of the
Company (by merger or otherwise and including any Affiliates), and may assign or encumber this
Agreement and its rights hereunder as security for indebtedness of the Company and its Affiliates.
This Agreement shall be binding upon and inure to the benefit of the Company, the Executive and



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their respective successors, assigns, personnel and legal representatives, executors,
administrators, heirs, distributees, devisees, and legatees, as applicable. None of the
Executive’s rights or obligations may be assigned or transferred by the Executive, other than the
Executive’s rights to payments hereunder, which may be transferred only by will or operation of
law.




     9. Notices. Any notice, request, claim, demand, document and other communication
hereunder to any party shall be effective upon receipt (or refusal of receipt) and shall be in
writing and delivered personally or sent by facsimile or certified or registered mail, postage
prepaid, as follows:



     If to the Company:




Vought Aircraft Industries, Inc.

P.O. Box 655907 MS 49R-09

Dallas, TX 75265-5907

Attn: General Counsel

Facsimile: (972) 946-5642



     If to the Executive: at the last address on the records of the Company

or at any address as any party shall have specified by notice in writing to the other party.



     10. Code Section 409A. This Agreement shall be interpreted in accordance with Code
Section 409A, including, without limitation by giving any terms used in this Agreement such
meanings as are necessary to avoid adverse tax consequences under Code Section 409A.
Notwithstanding any provision of this Agreement to the contrary, in the event that, following the
Effective Date, the Company reasonably determines that any compensation or benefits payable under
this Agreement may be subject to Code Section 409A, the Company and the Executive shall work
together to adopt such amendments to this Agreement or adopt other policies or procedures
(including amendments, policies and procedures with retroactive effect), or take any other
commercially reasonable actions necessary or appropriate to (a) preserve the intended tax treatment
of the compensation and benefits payable hereunder, to preserve the economic benefits of such
compensation and benefits, and/or to avoid less favorable accounting or tax consequences for the
Company and/or (b) to exempt the compensation and benefits payable hereunder from Code Section 409A
or to comply with the requirements of Code Section 409A and thereby avoid the application of
penalty taxes thereunder; provided, however, that this Section 10 does not, and shall not be
construed so as to, create any obligation on the part of the Company to adopt any such amendments,
policies or procedures or to take any other such actions or to indemnify the Executive for any
failure to do so.



     11. Miscellaneous Provisions.



          (a) Survival. Notwithstanding any provision of this Agreement to the contrary,
Sections 5 through 11 of this Agreement shall survive the termination of this Agreement in
perpetuity (or for such shorter period as is specified in any such Section). Notwithstanding any
provision of this Agreement to the contrary, Section 4 of this Agreement shall survive the
termination of this Agreement for the period of time specified therein if, and only if, the
Executive incurs a Separation from Service on or before the date this Agreement terminates in
accordance with Section 2.







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          (b) Effect on Other Arrangements. From and after the occurrence of a Change in
Control prior to the six-month anniversary of the Effective Date, in the event the Executive
becomes entitled to payments under Section 3 of this Agreement (without regard to the
application of Section 12(a)), this Agreement shall supersede and replace any severance
payments and/or benefits that the Executive may be entitled to receive under the terms of any other
employment, severance or similar agreements or arrangements with the Company or its Affiliates.
For the avoidance of doubt, in no event shall the Executive be entitled to receive severance
payments or benefits under both this Agreement and (i) any employment agreement between the
Executive and the Company (or one of its affiliates) or (ii) any severance plan in which the
Executive would otherwise be entitled to participate.




          (c) Entire Agreement. The terms of this Agreement (including the Employee Agreement)
are intended by the parties to be the final expression of their agreement with respect to the
subject matter hereof and supersede all prior understandings and agreements, whether written or
oral, provided, however, that, except as provided in Section 11(b), this Agreement shall
not supersede the terms of any previously executed employment agreement. The parties further
intend that this Agreement shall constitute the complete and exclusive statement of their terms and
that no extrinsic evidence whatsoever may be introduced in any judicial, administrative, or other
legal proceeding to vary the terms of this Agreement.




          (d) Amendment; Waiver. This Agreement may not be modified, amended, or terminated
except by an instrument in writing, signed by the Executive and a duly authorized officer of
Company. By an instrument in writing similarly executed, the Executive or a duly authorized
officer of the Company may waive compliance by the other party or parties with any specifically
identified provision of this Agreement that such other party was or is obligated to comply with or
perform; provided, however, that such waiver shall not operate as a waiver of, or estoppel with
respect to, any other or subsequent failure. No failure to exercise and no delay in exercising any
right, remedy, or power hereunder shall preclude any other or further exercise of any other right,
remedy, or power provided herein or by law or in equity.




          (e) Choice of Law. This Agreement shall be governed, construed, interpreted and
enforced in accordance with its express terms, and otherwise in accordance with the substantive
laws of the State of Delaware, without reference to the principles of its conflicts of law, and
where applicable, the laws of the United States.




          (f) Arbitration. Any dispute or controversy arising under or in connection with this
Agreement, other than disputes or controversies arising under or in connection with the provisions
of Sections 4, 5 or 6 hereof, shall be settled exclusively by arbitration, conducted before
an arbitrator in Dallas, Texas in accordance with the National Rules for the Resolution of
Employment Disputes of the American Arbitration Association then in effect. Judgment may be
entered on the arbitration award in any court having jurisdiction. Only individuals who are on the
AAA register of arbitrators shall be selected as an arbitrator. Within 20 days of the conclusion
of the arbitration hearing, the arbitrator(s) shall prepare written findings of fact and
conclusions of law. It is mutually agreed that the written decision of the arbitrator(s) shall be
valid, binding, final and non-appealable, provided, however, that the parties hereto agree that the
arbitrator shall not be empowered to award punitive damages against any party to such arbitration.
Each party shall pay its own attorney’s fees and expenses.







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          (g) Validity. The invalidity or unenforceability of any provision or provisions of
this Agreement shall not affect the validity or enforceability of any other provision hereof, which
shall remain in full force and effect. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future laws effective during the term of this Agreement,
such provision shall be fully severable; this Agreement shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a portion of this Agreement; and
the remaining provisions of this Agreement shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its severance from this
Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable provision there shall be
added automatically as part of this Agreement a provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible and be legal, valid and enforceable.




          (h) Withholding. The Company shall be entitled to withhold from any amounts payable
under this Agreement any federal, state, local or foreign withholding or other taxes or charges
which the Company is required to withhold. The Company shall be entitled to rely on an opinion of
counsel if any questions as to the amount or requirement of withholding shall arise.




          (i) Construction. This Agreement shall be deemed drafted equally by both the parties.
Its language shall be construed as a whole and according to its fair meaning. Any presumption or
principle that the language is to be construed against any party shall not apply. The headings in
this Agreement are only for convenience and are not intended to affect construction or
interpretation. Any references to paragraphs, subparagraphs, sections or subsections are to those
parts of this Agreement, unless the context clearly indicates to the contrary. Also, unless the
context clearly indicates to the contrary, (i) the plural includes the singular and the singular
includes the plural; (ii) “and” and “or” are each used both conjunctively and disjunctively; (iii)
“any,” “all,” “each,” or “every” means “any and all,” and “each and every”; (iv) “includes” and
“including” are each “without limitation”; (v) “herein,” “hereof,” “hereunder” and other similar
compounds of the word “here” refer to the entire Agreement and not to any particular paragraph,
subparagraph, section or subsection; and (vi) all pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the
entities or persons referred to may require.




          (j) Counterparts. This Agreement may be executed in several counterparts, each of
which shall be deemed to be an original, but all of which together will constitute one and the same
Agreement. Signatures delivered by facsimile shall be deemed effective for all purposes.




     12. Section 280G Cutback; Stockholder Approval.



          (a) Except as otherwise provided in subsection (b) below, in the event that it shall be
determined that any right to receive any payment or other benefit under this Agreement or under any
other agreements, arrangements or benefit plans of the Company or any of its subsidiaries or
Affiliates to or for the benefit of the Executive (the “Payments”), would not be deductible by the
Company or any of its subsidiaries or Affiliates or the person making such payment or distribution
or providing such right or benefit as a result of Section 280G of the Code, then, to the extent
necessary to make the Payments deductible to the maximum extent possible (but, except as otherwise
provided herein, only to such extent and after taking into account any reduction in the Payments
relating to Section 280G of the Code under any other plan, arrangement or agreement), such right,
payment or benefit shall not become vested or paid. For purposes of determining whether






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any of the Payments would not be deductible as a result of Section 280G of the Code and the
amount of such disallowed deduction, all Payments will be treated as “parachute payments” within
the meaning of Section 280G of the Code, and all “parachute payments” in excess of the “base
amount” (as defined under Section 280G(b)(3) of the Code) shall be treated as nondeductible,
assuming that no portion of any payment to be received by the Executive in connection with the
Merger would be viewed as “reasonable compensation for personal services” within the meaning of
Section 280G of the Code and the regulations thereunder. All determinations required to be made
under this subsection (a), including whether and which of the Payments are required to be reduced,
the amount of such reduction and the assumptions to be utilized in arriving at such determination,
shall be made by a nationally recognized accounting firm selected by the Company (the
“Accountants”), provided that such determinations shall be based upon a “more likely than not”
standard, and provided further that, for further certainty, the amount by which the Payments shall
be reduced, if at all, shall be $1,000 more than the amount determined by the Accountants.
Notwithstanding anything in the foregoing and notwithstanding any other provision of any other
agreement or arrangement between the Executive and the Company or any of its subsidiaries or
Affiliates, any reductions made pursuant to this Section 12(a) or pursuant to any similar
provision in any other agreement between the Executive and the Company or any of its subsidiaries
or Affiliates shall be made in the following order: (i) first, all rights to continued benefits or
payments in respect of premium costs under the Company’s group health and welfare plans and all
other similar rights to reimbursements or in-kind benefits shall be reduced, beginning with
benefits that would be received or paid last in time; (ii) second, all rights to cash severance
payments and other similar payments that would be made upon a termination of the Executive’s
employment shall be reduced, beginning with payments that would be made last in time; (iii) third,
all rights to payments, vesting or benefits in connection with any restricted stock units with
respect to the common stock of the Company held by the Executive shall be reduced; (iv) fourth, all
rights to payments, vesting or benefits in connection with any options to purchase common stock of
the Company shall be reduced; (v) fifth, all rights to payments, vesting or benefits in connection
with any stock appreciation rights with respect to the common stock of the Company held by the
Executive shall be reduced; and (vi) sixth, all rights to any other payments or benefits shall be
reduced, beginning with payments or benefits that would be received last in time.




          (b) Notwithstanding any other provision of this Agreement, the provisions of subsection (a)
above shall not apply to reduce the Payments if the Payments that would otherwise be nondeductible
under Section 280G of the Code are disclosed to and approved by the Company’s stockholders in
accordance with Section 280G(b)(5)(B) of the Code and applicable treasury regulations.




          13. Acknowledgement. The Executive acknowledges that the Executive has read and
understands this Agreement, is fully aware of its legal effect, has not acted in reliance upon any
representations or promises made by the Company other than those contained in writing herein, and
has entered into this Agreement freely based on the Executive’s own judgment.




[remainder of page intentionally left blank]








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     IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the
Company by its duly authorized officer, as of the day and year first above written.



	 	 	 	 	 
	COMPANY:  	

Vought Aircraft Industries, Inc.

 	 
	 	By:  	/s/
Tom Stubbins	 
	 	 	Title:  	Vice
President, Human Resources
 	 
	 	 	 	 
	 	 	 	 
	 
	EXECUTIVE: 	
 	 
	 	/s/
Ronald Muckley	 
	 	Signature 	 
	 
	 	  	
 	 
	 	Printed Name 	 



-12-









 






	 	 	 	 	 



EXHIBIT A1




RELEASE




     For and in consideration of the payments and other benefits due to [          ] (the “Executive”)
pursuant to the Change in Control Severance Agreement dated as of [                    ] (the “Severance
Agreement”), by and between Vought Aircraft Industries, Inc., (the “Company”) and the Executive,
and for other good and valuable consideration, the Executive hereby agrees, for the Executive, the
Executive’s spouse and child or children (if any), the Executive’s heirs, beneficiaries, devisees,
executors, administrators, attorneys, personal representatives, successors and assigns, to forever
release, discharge and covenant not to sue the Company, The Carlyle Group or any of their
respective divisions, affiliates, subsidiaries, parents, branches, predecessors, successors,
assigns, and, with respect to such entities, their officers, directors, trustees, employees,
agents, shareholders, administrators, general or limited partners, representatives, attorneys,
insurers and fiduciaries, past, present and future (the “Released Parties”) from any and all claims
of any kind arising out of, or related to, his or her employment with the Company, its affiliates
and subsidiaries (collectively, with the Company, the “Affiliated Entities”), the Executive’s
separation from employment with the Affiliated Entities, which the Executive now has or may have
against the Released Parties, whether known or unknown to the Executive, by reason of facts which
have occurred on or prior to the date that the Executive has signed this Release. Such released
claims include, without limitation, any and all claims relating to the foregoing under federal,
state or local laws pertaining to employment, including, without limitation, the Age Discrimination
in Employment Act, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e
et. seq., the Fair Labor Standards Act, as amended, 29 U.S.C. Section 201 et. seq.,
the Americans with Disabilities Act, as amended, 42 U.S.C. Section 12101 et. seq. the
Reconstruction Era Civil Rights Act, as amended, 42 U.S.C. Section 1981 et. seq., the
Rehabilitation Act of 1973, as amended, 29 U.S.C. Section 701 et. seq., the Family and
Medical Leave Act of 1992, 29 U.S.C. Section 2601 et. seq., and any and all state or local
laws regarding employment discrimination and/or federal, state or local laws of any type or
description regarding employment, including but not limited to any claims arising from or
derivative of the Executive’s employment with the Affiliated Entities, as well as any and all such
claims under state contract or tort law.



     The Executive has read this Release carefully, acknowledges that the Executive has been given
at least [21/45] days to consider all of its terms and is hereby advised to consult with any
attorney and any other advisors of the Executive’s choice prior to executing this Release, and the
Executive fully understands that by signing below the Executive is voluntarily giving up any right
which the Executive may have to sue or bring any other claims against the Released Parties,
including any rights and claims under the Age Discrimination in Employment Act. The Executive also
understands that the Executive has a period of seven days after signing this Release within which
to revoke his or her agreement, and that neither the Company nor any other person is obligated to
make any payments or provide any other benefits to the Executive pursuant to the Agreement until
eight days have passed since the Executive’s signing of this Release without the Executive’s
signature having been revoked other than any accrued obligations or other benefits payable pursuant
to the terms of the Company’s normal payroll practices or employee benefit plans.





 




			
	1 	 	This release may be modified, as necessary, to
comply with changes in applicable law.




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Finally, the Executive has not been forced or pressured in any manner whatsoever to sign this
Release, and the Executive agrees to all of its terms voluntarily.




     Notwithstanding anything else herein to the contrary, this Release shall not affect: (i) the
Company’s obligations under any compensation or employee benefit plan, program or arrangement
(including, without limitation, obligations to the Executive under any stock option, stock award or
agreements or obligations under any pension, deferred compensation or retention plan) provided by
the Affiliated Entities where the Executive’s compensation or benefits are intended to continue or
the Executive is to be provided with compensation or benefits, in accordance with the express
written terms of such plan, program or arrangement, beyond the date of the Executive’s termination;
or (ii) rights to indemnification the Executive may have as an insured under any director’s and
officer’s liability insurance policy now or previously in force.



     This Release is final and binding and may not be changed or modified except in a writing
signed by both parties.



	 	 	 	 	 

	 
	 

	 	 	 	 
	Date

	 	 	 	Executive
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	 	 	Printed Name







-14-