[STANDARD FORM OF RESTRICTED STOCK AWARD AGREEMENT]
BE AEROSPACE, INC. 2005 LONG-TERM INCENTIVE PLAN
RESTRICTED STOCK AWARD AGREEMENT
THIS AWARD AGREEMENT (the "Award Agreement") is made effective as of
______________ (the "Date of Grant") between BE Aerospace, Inc., a Delaware
corporation (the "Company"), and _________________ (the "Participant").
Capitalized terms not otherwise defined herein shall have the same meanings as
in the BE Aerospace, Inc. 2005 Long-Term Incentive Plan (the "Plan").
WHEREAS, the Company desires to grant the Restricted Stock provided for
herein to the Participant pursuant to the Plan and the terms and conditions set
forth herein;
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties agree as follows:
1. Grant of the Award. Subject to the provisions of this Award
Agreement and the Plan, the Company hereby grants to the Participant, an
aggregate of ________________ shares of restricted stock (the "Restricted
Stock"), subject to adjustment as set forth in the Plan.
2. Incorporation of Plan. The Participant acknowledges receipt of the
Plan, a copy of which is attached hereto and represents that he is familiar with
its terms and provisions. This Award Agreement and the Restricted Stock shall be
subject to the Plan, the terms of which are incorporated herein by reference,
and in the event of any conflict or inconsistency between the Plan and this
Award Agreement, the Plan shall govern.
3. Vesting Schedule. Unless previously vested or canceled in accordance
with the provisions of the Plan or this Award Agreement, the shares of
Restricted Stock shall vest and shall no longer be subject to cancellation
pursuant to Section 4 or the transfer restrictions set forth in Section 7 as
follows: fifty percent (50%) will vest on the second anniversary of the Date of
Grant and twenty-five percent (25%) will vest on each of the third and fourth
anniversaries of the Date of Grant.
4. Termination of Employment. In the event of the Participant's
termination of employment with the Company prior to the vesting of all shares of
Restricted Stock hereunder for any reason other than death or Disability, all
unvested shares of Restricted Stock shall be cancelled immediately without
consideration as of the date of such termination.
5. Death or Disability. If, prior to the vesting of all shares of
Restricted Stock hereunder, the Participant's employment with the Company
terminates due to death or Disability, all of the unvested shares of Restricted
Stock shall vest immediately and shall no longer be subject to cancellation
pursuant to Section 4 or the transfer restrictions set forth in Section 7.
6. Change in Control. Upon a Change in Control prior to the vesting of
all shares of Restricted Stock hereunder, all of the unvested shares of
Restricted Stock shall vest immediately and shall no longer be subject to
cancellation pursuant to Section 4 or the transfer restrictions set forth in
Section 7.
7. Nontransferability of Restricted Stock. Unless otherwise determined
by the Committee, the Restricted Stock may not be transferred, pledged,
alienated, assigned or otherwise attorned other than by last will and testament
or by the laws of descent and distribution or pursuant to a domestic relations
order, as the case may be; provided, however, that the Committee may, subject to
such terms and conditions as it shall specify, permit the transfer of Restricted
Stock for no consideration to a Permitted Transferee. Any shares of Restricted
Stock transferred to a Permitted Transferee shall be further transferable only
by last will and testament or the laws of descent and distribution or, for no
consideration, to another Permitted Transferee of the Participant.
8. Rights as a Stockholder. The Participant shall have, with respect to
the Restricted Stock, all the rights of a stockholder of the Company, including,
if applicable, the right to vote the Restricted Stock and to receive any
dividends or other distributions, subject to the restrictions set forth in the
Plan and this Award Agreement.
9. Dividends and Distributions. Any cash, Common Stock or other
securities of the Company or other consideration received by the Participant as
a result of a distribution to holders of Restricted Stock or as a dividend on
the Restricted Stock shall be subject to the same restrictions as the Restricted
Stock, and all references to Restricted Stock hereunder shall be deemed to
include such cash, Common Stock or other securities or consideration.
10. Legend on Certificates. The Committee may cause a legend or legends
to be put on certificates representing the Common Stock underlying the
Restricted Stock to make appropriate reference to such restrictions as the
Committee may deem advisable under the Plan or as may be required by the rules,
regulations, and other requirements of the Securities and Exchange Commission,
any exchange that lists the Common Stock, and any applicable federal or state
laws.
11. Conditions to Delivery of Common Stock Certificates. The Company
shall not be required to deliver any certificate or certificates for shares of
Common Stock pursuant to this Agreement prior to fulfillment of all of the
following conditions:
(a) The obtaining of any approval or other clearance from any state or
federal governmental agency which the Committee determines to be necessary or
advisable; and
(b) The lapse of such reasonable period of time as the Committee may
from time to time establish for reasons of administrative convenience.
12. Physical Custody. The Restricted Stock may be issued in certificate
form or electronically in "book entry". The Secretary of the Company or such
other representative as the Committee may appoint shall retain physical custody
of each certificate representing Restricted Stock until all of the restrictions
imposed under this Award Agreement with respect to the shares evidenced by such
certificate expire or are removed. In no event shall the Participant
2
retain physical custody of any certificates representing unvested Restricted
Stock assigned to Participant.
13. No Entitlements.
(a) No Right to Continued Employment. This award is not an employment
agreement, and nothing in this Award Agreement or the Plan shall (i) alter the
Participant's status as an "at-will" employee of the Company, (ii) be construed
as guaranteeing the Participant's employment by the Company or as giving the
Participant any right to continue in the employ of the Company during any period
(including without limitation the period between the Date of Grant and the
applicable vesting date in accordance with Section 3) or (iii) be construed as
giving the Participant any right to be reemployed by the Company following any
termination of Employment.
(b) No Right to Future Awards. This award of Restricted Stock and all
other equity-based awards under the Plan are discretionary. This award does not
confer on the Participant any right or entitlement to receive another award of
Restricted Stock or any other equity-based award at any time in the future or in
respect of any future period.
(c) No Effect on Future Employment Compensation. The Company has made
this award of Restricted Stock to the Participant in its sole discretion. This
award does not confer on the Participant any right or entitlement to receive
compensation in any specific amount for any future fiscal year, and does not
diminish in any way the Company's discretion to determine the amount, if any, of
the Participant's compensation. In addition, this award of Restricted Stock is
not part of the Participant's base salary or wages and will not be taken into
account in determining any other employment-related rights the Participant may
have, such as rights to pension or severance pay.
14. Taxes and Withholding. No later than the date as of which an amount
with respect to the Restricted Stock first becomes includable in the gross
income of the Participant for applicable income tax purposes, the Participant
shall pay to the Company or make arrangements satisfactory to the Committee
regarding payment of any federal, state or local taxes of any kind required by
law to be withheld with respect to such amount. Unless otherwise determined by
the Committee, in accordance with rules and procedures established by the
Committee, the minimum required withholding obligations may be settled in Common
Stock, including Common Stock that is part of the award that gives rise to the
withholding requirement. The obligations of the Company to deliver the
certificates for shares of Common Stock under this Award Agreement shall be
conditional upon such payment or arrangements and the Company shall, to the
extent permitted by law, have the right to deduct any such taxes from any
payment of any kind otherwise due to the Participant.
15. Section 83(b) Election. If, within 30 days of the Date of Grant,
the Participant makes an election under Section 83(b) of the Code, or any
successor section thereto, to be taxed with respect to all or any portion of the
Restricted Stock as of the date of transfer of the Restricted Stock rather than
as of the date or dates upon which the Participant would otherwise be taxable
under Section 83(a) of the Code, the Participant shall deliver a copy of such
3
election to the Company immediately after filing such election with the Internal
Revenue Service.
16. Securities Laws. In connection with the grant or vesting of the
Restricted Stock the Participant will make or enter into such written
representations, warranties and agreements as the Committee may reasonably
request in order to comply with applicable securities laws or with this Award
Agreement.
17. Miscellaneous Provisions.
(a) Notices. Any notice necessary under this Award Agreement shall be
addressed to the Company in care of its Secretary at the principal executive
office of the Company and to the Participant at the address appearing in the
records of the Company for the Participant or to either party at such other
address as either party hereto may hereafter designate in writing to the other.
Any such notice shall be deemed effective upon receipt thereof by the addressee.
(b) Headings. The headings of sections and subsections are included
solely for convenience of reference and shall not affect the meaning of the
provisions of this Award Agreement.
(c) Counterparts. This Award Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
(d) Entire Agreement. This Award Agreement and the Plan constitute the
entire agreement between the parties hereto with regard to the subject matter
hereof. They supersede all other agreements, representations or understandings
(whether oral or written and whether express or implied) that relate to the
subject matter hereof.
(e) Amendments. The Board or the Committee shall have the power to
alter, amend, modify or terminate the Plan or this Award Agreement at any time;
provided, however, that no such termination, amendment or modification may
adversely affect, in any material respect, the Participant's rights under this
Award Agreement without the Participant's consent. Notwithstanding the
foregoing, the Company shall have broad authority to amend this Award Agreement
without the consent of the Participant to the extent it deems necessary or
desirable (i) to comply with or take into account changes in or interpretations
of, applicable tax laws, securities laws, employment laws, accounting rules and
other applicable laws, rules and regulations, (ii) to ensure that the Restricted
Stock is not subject to interest and penalties under Section 409A of the Code,
(iii) to take into account unusual or nonrecurring events or market conditions,
or (iv) to take into account significant acquisitions or dispositions of assets
or other property by the Company. Any amendment, modification or termination
shall, upon adoption, become and be binding on all persons affected thereby
without requirement for consent or other action with respect thereto by any such
person. The Committee shall give written notice to the Participant of any such
amendment, modification or termination as promptly as practicable after the
adoption thereof. The foregoing shall not restrict the ability of the
Participant and the
4
Company by mutual consent to alter or amend the terms of the Restricted Stock in
any manner that is consistent with the Plan and approved by the Committee.
(f) Successor. Except as otherwise provided herein, this Award
Agreement shall be binding upon and shall inure to the benefit of any successor
or successors of the Company, and to any Permitted Transferee pursuant to
Section 7.
(g) Choice of Law. Except as to matters of federal law, this Award
Agreement and all actions taken thereunder shall be governed by and construed in
accordance with the laws of the State of Delaware (other than its conflict of
law rules).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
BE AEROSPACE, INC.
By:
------------------------------------
Name: Amin Khoury
Title: Chairman of the Board
ELECTION UNDER SECTION 83(b)
OF THE INTERNAL REVENUE CODE OF 1986
The undersigned taxpayer hereby elects, pursuant to Section
83(b) of the Internal Revenue Code of 1986, as amended, to include in gross
income for 2006 the amount of any compensation taxable in connection with the
taxpayer's receipt of the property described below:
1. The name, address, taxpayer identification number and
taxable year of the undersigned are:
TAXPAYER'S NAME:
------------------------------------
SPOUSE'S NAME:
------------------------------------
TAXPAYER'S SOCIAL SECURITY NO.:
------------------------------------
SPOUSE'S SOCIAL SECURITY NO.:
------------------------------------
TAXABLE YEAR:
------------------------------------
ADDRESS:
------------------------------------
------------------------------------
2. The property which is the subject of this election is shares of
Common Stock of BE Aerospace, Inc.
3. The property was transferred to the undersigned on
4. The property is subject to the following restrictions: The shares of
Common Stock are subject to cancellation if unvested as of the date of
termination of service other than for death or disability and are
nontransferable until vested.
5. The fair market value of the property at the time of transfer
(determined without regard to any restriction other than a restriction which by
its terms will never lapse) is: $ per share x ________ shares = $ _________.
6. The undersigned paid $ per share x ________ shares for the
property transferred or a total of $
The undersigned has submitted a copy of this statement to the person
for whom the services were performed in connection with the undersigned's
receipt of the above-described property. The undersigned taxpayer is the person
performing the services in connection with the transfer of said property.
The undersigned will file this election with the Internal Revenue
Service office to which he files his annual income tax return not later than 30
days after the date of transfer of the property. A copy of the election also
will be furnished to the person for whom the services were
6
performed. Additionally, the undersigned will include a copy of the election
with his income tax return for the taxable year in which the property is
transferred. The undersigned understands that this election will also be
effective as an election under ___________ law.
Dated:
------------------------- --------------------------------------
Taxpayer
The undersigned spouse of taxpayer joins in this election.
Dated:
------------------------- --------------------------------------
Spouse of Taxpayer