FORM OF RESTRICTED STOCK AWARD AGREEMENT FOR AMIN J. KHOURY] BE AEROSPACE, INC. 2005 LONG-TERM INCENTIVE PLAN RESTRICTED STOCK AWARD AGREEMENT
Exhibit
10.5
[FORM
OF
RESTRICTED STOCK AWARD AGREEMENT FOR XXXX X. XXXXXX]
BE
AEROSPACE, INC. 2005 LONG-TERM INCENTIVE PLAN
THIS
AWARD
AGREEMENT (the “Award
Agreement”)
is made
effective as of November 15, 2006 (the “Date
of Grant”)
between
BE Aerospace, Inc., a Delaware corporation (the “Company”),
and
Xxxx X. Xxxxxx (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 _____ restricted shares of Common
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.
Defined terms used herein without definition shall have the meanings ascribed
thereto in the Plan.
3.
Vesting
Schedule.
Unless
previously vested or canceled in accordance with the provisions of the Plan
or
this Award Agreement, twenty-five percent (25%) of 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 on each of the
first, second, third and fourth anniversaries of the Date of Grant, provided
in
each case that on such date the Participant is employed by the Company or
rendering consulting services to the Company pursuant to Section 7.7 of the
employment agreement between the Company and the Participant dated April 27,
2007 ( the “Employment
Agreement”).
4.
Resignation
without Good Reason.
In the
event that prior to vesting in accordance with Section 3, the Participant
resigns his employment with the Company without Good Reason (as defined in
the
Employment Agreement) and does not render (or ceases rendering) consulting
services to the Company pursuant to Section 7.7 of the Employment Agreement,
all
unvested shares of Restricted Stock shall be cancelled immediately without
consideration as of the date (i) the participant’s employment terminates or (ii)
the participant ceases rendering consulting services, as applicable.
5.
Death;
Incapacity; Termination by the Company; 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 the Employment Agreement), (ii)
is terminated by the Company for any reason 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 the Restricted Stock, including, without limitation, for no
consideration to a charitable institution or a Permitted Transferee. Any shares
of Restricted Stock transferred to a charitable institution may not be further
transferable without the Committee’s approval and 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.
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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 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, including,
without limitation, by withholding shares of Common Stock to be delivered upon
vesting.
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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. Notwithstanding the foregoing,
the
Company may deliver notices to the Participant by means of email or other
electronic means that are generally used for employee communications. 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 taxes, 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 in accordance with
Section 16(a) 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.
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BE
AEROSPACE, INC.
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By:
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Name:
[ __________ ]
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Title:
[ __________ ]
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