BE AEROSPACE, INC.
SUPPLEMENTAL EXECUTIVE MONEY PURCHASE RETIREMENT PLAN
(As Amended and Restated Effective as of January 1, 1997
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THIS SUPPLEMENTAL EXECUTIVE MONEY PURCHASE RETIREMENT PLAN, as amended
and restated (the "Plan") made and entered into this ____ day of _________,
1997, effective as of January 1, 1997 by and between BE AEROSPACE, INC., a
corporation organized and existing under the laws of the State of Delaware
(hereinafter referred to as the "Company"), and the employee designated in the
Adoption Agreement attached hereto and made a part hereof (hereinafter referred
to as the "Employee").
W I T N E S S E T H:
WHEREAS, the Company and its affiliates desire to provide for an
unfunded retirement pay plan for the benefit of a select group of their
management or highly compensated employees, subject to certain conditions and
pursuant to the terms and provisions specified in this Plan;
WHEREAS, the Company adopted the Plan effective as of January 1, 1996
and wishes to amend the Plan in certain respects.
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, the Company hereby amends and restates the Plan pursuant to
the following terms and provisions.
ARTICLE 1
DEFINITIONS
1.1 "Adoption Agreement" shall mean an agreement between the Company
and a Participant pursuant to which the Participant is designated as a
Participant and agrees to be bound by the terms and conditions of this Plan.
1.2 "Beneficiary" means the person or persons designated by a
Participant, upon such forms as shall be provided by the Committee, to receive
the death benefits payable under Section 3.2 of the Plan; provided, however,
that if a Participant designates a person other than his surviving spouse, such
spouse shall be required to consent in a notarized writing (before a notary) to
such beneficiary designation before such designation shall be valid and
effective. If the Participant shall fail to designate a Beneficiary, or if for
any reason such designation shall be ineffective, or if such Beneficiary shall
predecease the Participant or die simultaneously with him, then the Beneficiary
shall be, in the following order of preference:
(i) the Participant's surviving spouse, if any, or
(ii) the Participant's estate.
1.3 "Cause" shall mean a determination by the Company that any of the
following have occurred:
(a) the Participant has materially (i) failed, refused or
neglected to perform and discharge his duties as an employee of the
Company, or (ii) breached any fiduciary duties he may have because of
any position he holds with the Company or any subsidiary or affiliate
thereof;
(b) any conduct by the Participant that either results in the
conviction of a felony or the Participant's conviction of any other
crime involving the Participant's personal dishonesty or moral
turpitude, under the laws of the United States of America or any state
thereof, or the Participant's conviction of an equivalent crime under
the laws of any other jurisdiction;
(c) the Participant has violated any confidentiality,
non-competition or non-solicitation agreement between the Company and
the Participant; or
(d) any willful failure by the Participant to comply with the
Company's internal policies regarding insider trading or insider
dealing.
1.4 "Change in Control" means a "Change in Control" as that term is
defined in that certain Indenture dated as of March 23, 1993 by and between the
Company and United States Trust Company of New York, as trustee, in connection
with the Company's 9 1/4% Senior Notes due 2003.
1.5 "Code" shall mean the Internal Revenue Code of 1986, as amended,
and successor tax laws.
1.6 "Committee" shall mean the Benefits Committee as appointed by the
Board of Directors of the Company.
1.7 "Company" shall mean BE Aerospace, Inc., a Delaware corporation,
its successors and assigns, and any of their respective subsidiaries and
affiliates.
1.8 "Compensation" shall mean the amount of base salary (excluding any
bonuses, commissions or other compensation) received by a Participant from the
Company during the Plan Year, but excluding any Compensation received prior to
the Effective Date of Participation of the Participant and excluding any
payments during the Plan Year of compensation deferred from a prior Plan Year.
Notwithstanding the foregoing, Compensation shall not include the amount of any
taxable fringe benefits but shall include the amount of pre-tax contributions,
if any, authorized by a Participant under a 401(k) plan maintained by the
Company or any compensation the Participant has elected to defer for the Plan
Year under the BE Aerospace, Inc. Supplemental Executive Retirement Plan.
1.9 "Effective Date of Plan" shall mean January 1, 1996.
1.10 "Effective Date of Participation" shall mean the date specified on
the Participant's Adoption Agreement as the date on which he first becomes
eligible to accrue benefits under the Plan.
1.11 "Participant" shall mean each Employee who is designated by the
Company as being eligible for benefits under this Plan, and who executes an
Adoption Agreement. An Employee shall not be a Participant unless he is deemed
to be among a select group of management or highly compensated employees of the
Company within the meaning of Section 201(2) of ERISA.
1.12 "Employee" shall mean any full-time, common law employee of the
Company and shall not include persons engaged as independent contractors by the
Company.
1.13 "Leave of Absence" shall mean any absence authorized by the
Company under its standard personnel practices, provided that all persons under
similar circumstances shall be treated alike in the granting of such authorized
Leave of Absence.
1.14 "Plan" shall mean this Supplemental Executive Money Purchase
Retirement Plan as herein set forth and as it may be amended from time to time.
1.15 "Plan Year" shall mean each twelve (12) month period that begins
January 1 and ends December 31.
1.16 "Policy" shall mean the life insurance policy identified on the
Adoption Agreement of a Participant.
1.17 "Retirement Pay" shall mean the retirement pay to which a
Participant who is entitled to receive pursuant to Article 2 hereof.
1.18 "Severance" shall mean a Participant's termination of employment
with the Company for any reason, including death or disability, other than by
the Company for Cause. The term shall not include a Leave of Absence.
1.19 "Trust" shall mean the BE Aerospace, Inc. Executive Deferred
Compensation Trust by and between Security Investment Management & Trust Company
as Trustee and the Company.
1.20 "Trustee" shall mean the person or entity that shall from time
to time be serving as the Trustee of the Trust.
1.21 "Year of Service" shall mean a twelve-consecutive month period of
service with the Company during which the Participant worked full-time for the
Company, including periods of service prior to the Effective Date of the Plan.
ARTICLE 2
RETIREMENT PAY
2.1 Amount of Retirement Pay.
(a) The Retirement Pay payable to a Participant whose
Severance is other than by reason of the Participant's death shall be
equal to the value of an account to be kept by the Committee for the
Participant. The value of the account shall be equal to the cash
surrender value that the life insurance policy identified in the
Participant's Adoption Agreement (the "Policy") issued on the life of
the Participant would have on the date of the Participant's Severance
if (1) the Company made premium payments to the Policy each Plan Year
(at such times as the Company shall determine), commencing with the
Plan Year in which occurs the Participant's Effective Date of
Participation, in an annual amount equal to the Participant's
Contribution for the Plan Year, and (2) the Policy had a face amount of
insurance equal to the face amount specified in the Adoption Agreement.
(b) For purposes of this Agreement, the "Participant's
Contribution" shall mean the sum of:
(i) 5% of the Participant's Compensation for the Plan
Year; plus
(ii) such additional contribution, if any, for the
Plan Year as the Company, in its sole and absolute discretion,
shall determine should be allocated to the account of the
Participant under this Plan.
(c) The Retirement Pay, less applicable withholding taxes, to
which a Participant is entitled shall be paid by the Company in a lump
sum payment to be made as soon as practicable following the
Participant's Severance.
(d) The Committee's good faith determination of the Retirement
Pay payable to a Participant shall be binding and conclusive on the
Participant and the Company.
(e) Nothing in this Section 2.1 shall require the Company to
acquire or maintain the Policy, or to make any premium payments into
the Policy, nor shall the Participant have any right, title or interest
in the cash value of the Policy if acquired by the Company.
2.2 Death Benefit.
(a) If a Participant dies after he has incurred a Severance,
but before payment has been made to him of his account, then the unpaid
portion of his account under the Plan, less applicable withholding
taxes, shall be paid to the Participant's Beneficiary in a single lump
sum payment as soon as practicable following the Participant's death.
(b) If a Participant incurs a Severance by reason of the
Participant's death, and the Company or the Trust then owns the Policy
identified on the Participant's Adoption Agreement, then a death
benefit shall be paid under the Plan to the Participant's Beneficiary
equal to the death proceeds payable to the Company or the Trust under
the Policy. If the Participant incurs a severance by reason of the
Participants' death, and the Company or the Trust does not then own the
Policy identified on the Participant's Adoption Agreement, then a death
benefit shall be paid to the Participant's Beneficiary equal to the
Participant's Retirement Pay, determined and payable in manner under
Section 2.1 hereof.
(c) The death benefit under this Section 2.2 shall be treated
as taxable compensation and shall be paid, less applicable withholding
taxes, as soon as practicable following the Participant's death.
2.3 Termination for Cause. In the event that a Participant's employment
with the Company is terminated by the Company for Cause, no benefits shall be
payable under this Plan to the Participant or his Beneficiaries.
2.4 Change in Control. In the event of a Change in Control, then each
Participant, whether or not then employed by the Company, shall receive a lump
sum payment of his Retirement Pay, less applicable withholding taxes, as soon as
practicable following the Change in Control.
2.5 Contributions to Trust. The Company shall contribute to the Trust
for each Plan year an amount equal to the Participant's Contributions, as
defined in Section 3.1(b) hereof, said contributions to be made as soon as
practicable after the end of each Plan year, or at such earlier times as the
Company shall determine.
2.6 Benefit Obligations. Only the entity that actually employs the
Participant at the time of his Severance shall have any obligation to pay
Retirement Pay to the Participant pursuant to this Plan.
ARTICLE 3
ADMINISTRATION
3.1 Powers and Duties. The Committee generally shall be responsible for
the management, operation, interpretation and administration of the Plan. The
Committee shall have such discretionary powers as may be necessary or
appropriate in carrying out its duties. Without limiting the foregoing, the
Committee shall have the power to:
(a) Establish procedures for allocation of responsibilities of the
Plan which are not allocated herein;
(b) Determine the names of those Employees who are eligible to
participate and such other matters as may be necessary to enable payment under
the Plan;
(c) Construe all terms, provisions, conditions and limitations of the
Plan;
(d) Correct any defect, supply any omission or reconcile any
inconsistency that may appear in the Plan;
(e) Determine the amount, manner and time of payment of any benefits
hereunder and prescribe procedures to be followed by Participants to obtain
benefits; and
(f) Perform such other functions and take such other actions as may
be required by the Plan or as may be necessary or advisable to accomplish the
purposes of the Plan.
The Company shall furnish the Committee with all data and information available
which the Committee may reasonably require in order to perform its functions
hereunder. The Committee may rely without question upon any such data or
information furnished by the Company. Any interpretation or other decision made
by the Committee shall be final, binding and conclusive upon all persons in the
absence of clear and convincing evidence that the Committee acted arbitrarily
and capriciously.
3.2 Agents. The Committee may appoint a Secretary who may, but need
not, be a member of the Committee, and may employ such agents for clerical and
other services, and such counsel, accountants and other professional advisors as
may be required for the purpose of administering the Plan. The Committee may
rely on all tables, valuations, reports, certificates and opinions furnished by
its agents.
3.3 Procedures. A majority of the Committee members shall constitute a
quorum for the transaction of business. No action shall be taken except upon a
majority vote of the Committee. An individual shall not vote or decide upon any
matter relating solely to himself or vote in any case in which his individual
right or claim to any benefit under the Plan is particularly involved. In any
case in which a Committee member is so disqualified to act, and the remaining
members cannot agree on an issue, the Company shall appoint a temporary
substitute member to exercise all of the powers of the disqualified member
concerning the matter in which he is disqualified.
3.4 Claims Procedure. In the event that any Participant or Beneficiary
claims to be entitled to benefits under the Plan and the Committee determines
that such claim should be denied in whole or in part, the Committee shall, in
writing, notify such claimant within ninety (90) days of receipt of such claim
that his claim has been denied, setting forth the specific reasons for such
denial. Such notification shall be written in a manner reasonably expected to be
understood by such Participant or Beneficiary and shall set forth the pertinent
sections of the Plan relied on, and where appropriate, an explanation of how the
claimant can obtain review of such denial.
Within sixty (60) days after the mailing or delivery by the
Committee of such notice, such claimant may request, by mailing or delivery of
written notice to the Committee, a review and/or hearing by the Committee of the
decision denying the claim. If the claimant fails to request such a review
and/or hearing within such sixty (60) day period, it shall be conclusively
determined for all purposes of this Plan that the denial of such claim by the
Committee is correct. If such claimant requests a hearing within such sixty (60)
day period, the Committee shall designate a time (which time shall not be less
than seven (7) nor more than sixty (60) days from the date of such claimant's
notice to the Committee) and a place for such hearing, and shall promptly notify
such claimant of such time and place. A claimant or his authorized
representative shall be entitled to inspect all pertinent Plan documents and to
submit issues and comments in writing. If only a review is requested, the
claimant shall have sixty (60) days after filing a request for review to submit
additional written material in support of the claim. After such review and/or
hearing, the Committee shall promptly determine whether such denial of the claim
was correct and shall notify such claimant in writing of its determination with
sixty (60) days after such review and/or hearing or after receipt of any
additional information submitted.
3.5 Indemnification. The Company shall indemnify to the fullest extent
permitted by law, each Committee member and each employee or former employee who
assisted the Committee at the request of the Committee or as part of his or her
duties against any expense, liability or loss sustained by reason of any act or
failure to act made in good faith, including, but not limited to, those in
reliance on certificates, reports, tables, opinions or other communications from
any company or agents chosen by the Committee in good faith. Such
indemnification shall include attorneys' fees and other costs and expenses
reasonably incurred in defense of any action brought by reason of any such act
or failure to act.
ARTICLE 4
MISCELLANEOUS
4.1 Participant's Rights Unsecured. The right of a Participant or his
beneficiary to receive a distribution hereunder shall be an unsecured claim
against the general assets of the Company, and neither the Participant nor his
beneficiary nor any other person shall have any rights in or against any amount
credited to the Participant's Account or any specific assets of the Company or
the Trust. The assets of the Trust shall be subject to the creditors of the
Company in the event of the Company's insolvency. If and to the extent not paid
directly from the general assets of the Company, any benefits payable under the
Plan shall be payable from the Trust. Any assets remaining in the Trust, after
payment of all benefits under the Plan shall be paid to the Company.
4.2 Impact on Other Employee Benefits. This Plan shall not be construed
to impact or cause the denial of any benefits to which any Participant may be
entitled under any other welfare or benefit plan of the Company.
4.3 Other Plans. Retirement Pay payments made to Participants under
this Plan shall not be includable as salary or compensation for purposes of
determining the amount of employee benefits under any other retirement, pension,
profit-sharing or welfare benefit plans of the Company.
4.4 Reservation of Right. The Company expects to continue the Plan
indefinitely, but nevertheless reserves the right to modify or amend the Plan or
any provision hereof at any time.
4.5 Governing Law. To the extent not pre-empted by the laws of the
United States, the construction, validity and administration of the Plan shall
be governed by the laws of the State of Florida without reference to the
principles of conflicts of law therein.
4.6 No Assignment. Except with respect to the naming of a Beneficiary
to receive any death benefits payable hereunder, the right to receive payment of
any benefits under the Plan shall not be transferred, assigned or pledged,
except by beneficiary designation, by will, under the laws of decent and
distribution, or as may be otherwise required by law.
4.7 Taxes. The Company shall withhold under the Plan any taxes which it
determines in good faith are required to be withheld under applicable Federal,
state or local tax laws or regulations.
4.8 Severability. Subject to the provisions of Section 4.5, if any
provision of this Plan is found, held or deemed to be void, unlawful or
unenforceable under any applicable statute or other controlling law, the
remainder of the Plan shall continue in full force and effect.
4.9 Headings and Subheadings. The headings and subheadings of the Plan
are for reference only. In the event of a conflict between a heading or
subheading and the content of an article or paragraph, the content shall
control.
4.10 Gender. The masculine, as used herein, shall be deemed to include
the feminine and the singular to include plural, except where the context
requires a different construction.
4.11 Amendment and Termination. This Plan may be amended or terminated
in any respect at any time by the Company by a writing signed by an officer of
the Company; provided, however, that no amendment or termination of the Plan
shall be effective to reduce any Retirement Pay that accrued before the adoption
of such amendment or termination.
4.12 No Employment Contract. This Plan does not constitute a contract
of employment or impose on any Participant or the Company any obligations to
retain the Participant as an employee, to change the status of the Participant's
employment, or to change the Company's policies regarding termination of
employment.
IN WITNESS WHEREOF, the Company has caused the Plan to be executed the
day and year first above written.
For: BE AEROSPACE, INC.
By: /s/ Joseph Piegari, Vice President
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Human Resources
ADOPTION AGREEMENT
By executing this Adoption Agreement, the undersigned (the
"Participant") hereby agrees to become a Participant under the BE Aerospace,
Inc. Supplemental Executive Money Purchase Retirement Plan (the "Plan"), by
adopting the Plan in full as if the Participant were a signatory to the Plan.
The following information applies to the Participant's participation in the
Plan:
1. Participant's Name: ________________________________
2. Participant's Address: ________________________________
3. Insurer: ________________________________
4. Policy Face Amount: ________________________________
5. Policy Number:
6. Percentage of Compensation: ________________________________
7. Effective Date of Participation: ________________________________
8. Beneficiary: ________________________________
The Participant hereby acknowledges his receipt of a copy of the Plan
and acknowledges that his rights to benefits under the Plan are subject to
certain conditions specified in the Plan, including without limitation, the
requirements that his employment with the Company not be terminated for Cause,
as defined in the Plan.
WITNESSES:
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PARTICIPANT'S SIGNATURE
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DATE
ACKNOWLEDGED AND ACCEPTED BY THE COMPANY
BE AEROSPACE, INC.
By: /s/ Joseph Piegari, Vice President
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Human Resources