[FORM OF RESTRICTED STOCK AWARD AGREEMENT FOR THOMAS P. McCAFFREY]
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 Thomas P. McCaffrey (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; provided in each case that on such date the
Participant is employed by the Company.
4. Termination by the Company for Cause; Resignation without Good
Reason. In the event the Participant's employment is terminated by the Company
for Cause or the Participant resigns his employment without Good Reason (each as
defined in the employment agreement between the Company and the Participant
dated July 31, 2006 (the "Employment Agreement")) all unvested shares of
Restricted Stock shall be cancelled immediately without consideration as of the
date of such termination.
5. Death; Incapacity; Termination by the Company without Cause;
Resignation for Good Reason. If, prior to the vesting of all shares of
Restricted Stock hereunder, the Participant's employment with the Company (i)
terminates due to the participant's death or Incapacity (as defined in Section
5(c) of the Employment Agreement), (ii) is terminated by the
Company without Cause (as defined in the Employment Agreement) or (iii) is
terminated by the Executive for Good Reason as defined in the Employment
Agreement), 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 of this Award Agreement.
6. Change in Control. Immediately prior to a Change in Control (as
defined in the Employment Agreement), all of the shares of Restricted Stock
(that have not yet vested pursuant to Sections 3 or 5 hereof) shall vest
immediately and shall no longer be subject to cancellation pursuant to Section 4
or the transfer restrictions set forth in Section 7 of this Award Agreement.
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.
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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 the 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 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.
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15. 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.
16. 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, the Employment 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 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.
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(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:
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Name: Amin Khoury
Title: Chairman of the Board