AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
10.1
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
This
Employment Agreement (this “Agreement”)
is made
as of this 27th
day of
April, 2007, by and between BE Aerospace, Inc., a Delaware corporation (the
“Company”)
and
Xxxxxxx X. Xxxxxxx (the “Executive”).
RECITALS
WHEREAS,
the Executive and the Company entered into an Amended and Restated Employment
Agreement dated as of December 31, 2005 (the “Employment
Agreement”)
pursuant to which the Executive serves as the Company’s President and Chief
Operating Officer;
WHEREAS,
the Executive, having provided services to the Company since May 28, 1999,
agrees to provide services for an additional period as provided herein and
the
Company wishes to procure such services; and
WHEREAS,
the Executive and the Company wish to amend and restate the Employment Agreement
in its entirety.
NOW,
THEREFORE, in consideration of the mutual promises hereinafter set forth, the
parties agree as follows:
1.
Reference
to Employment Agreement.
The
Employment Agreement is hereby restated, superseded and replaced in its entirety
by this Agreement.
2.
Employment.
Unless
otherwise terminated pursuant to the provisions of Section 5 hereof, the
Executive shall provide to the Company services hereunder during the term of
his
employment under this Agreement, which shall be the period ending three (3)
years from any date as of which the term is being determined (the “Employment
Term”).
The
date on which the Employment Term ends, including any extensions thereof, is
sometimes hereinafter referred to as the “Expiration
Date.”
3.
Position
and Duties.
The
Executive shall serve the Company in the capacity of President and Chief
Operating Officer, or in such other positions as the Chief Executive Officer
of
the Company, his designee or the Board of Directors of the Company (the
“Board”)
may
designate from time to time, and shall be accountable to, and shall have such
other powers, duties and responsibilities, consistent with this capacity, as
the
Chief Executive Officer of the Company, his designee or the Board shall
determine in its sole discretion. The Executive shall report directly to the
Chief Executive Officer of the Company. The Executive shall perform and
discharge, faithfully, diligently and to the best of his ability, such duties
and responsibilities. The Executive shall devote substantially all of his
working time and efforts to the business and affairs of the Company. Consistent
with the Company’s practices, the Executive’s performance will be reviewed by
the Chief Executive Officer on at least an annual basis.
4.
Compensation.
(a) Salary.
During
the Employment Term, the Executive shall receive a salary (the “Salary”)
payable
at the rate of four hundred eighty five thousand dollars ($485,000) per annum.
Such rate shall be subject to adjustment from time to time by the Board;
provided,
however,
that it
shall at no time be adjusted below the Salary for the preceding year. On January
1st
of each
year during the Employment Term, the Salary shall be increased by an amount
not
less than the amount determined by applying to the Salary then in effect the
percentage increase in the U.S. Bureau of Labor Statistics Consumer Price Index
Revised - Urban Wage Earners and Clerical Workers - National - All Items
(1982-84=100) (the “Index”)
for the
twelve (12) month period (January through December) immediately preceding such
January 1st. If the Index is no longer issued, the Board and the Executive
shall
agree upon a substitute adjustment index issued by such agency that most
reasonably reflects the criteria utilized in the most recent issue of the Index.
Except as otherwise provided in this Agreement, the Salary shall be payable
biweekly or in accordance with the Company’s current payroll practices, less all
required deductions.
(b) Incentive
Bonus.
During
the Employment Term, the Executive may receive an incentive bonus (the
“Bonus”)
of up
to 120% of the Salary for each fiscal year or portion thereof during which
the
Executive has been employed hereunder as determined by the Board at the end
of
the applicable fiscal year in its sole discretion.
(c) Expenses.
During
the Employment Term, the Executive shall be entitled to receive prompt
reimbursement for all reasonable business expenses incurred by him on behalf
of
the Company in accordance with the Company’s policies in effect from time to
time.
(d) Benefits.
During
the Employment Term, the Executive shall be entitled to participate in or
receive benefits under any life or disability insurance, health, pension,
retirement, accident, and other employee benefit plans, programs and
arrangements made generally available by the Company to its executives, subject
to and on a basis consistent with the terms, conditions and overall
administration of such plans and arrangements. In accordance with the Company
policies as in effect from time to time, the Executive shall also be entitled
to
paid vacation in any fiscal year during the Employment Term as well as all
paid
holidays given by the Company to its employees. In
addition, upon termination of Executive’s employment with the Company due to his
death or Incapacity or contemporaneously with a Change of Control, the Executive
and his spouse and eligible dependents shall be entitled on similar terms and
conditions as active executives, for a period of two (2) years, to participate
in all medical, dental and health benefit plans available to the Company’s
executive officers from time to time to the extent the Company plans constitute
welfare plans for purposes of Section
409A of the Internal Revenue Code of 1986, as amended and the regulations and
guidance promulgated thereunder (the “Code”).
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(e) Automobile.
During
the Employment Term, the Executive shall be furnished with an automobile
allowance of one thousand one hundred dollars ($1,100) per month.
(f) Equity
Awards.
During
the employment term, the Executive shall be eligible to participate in the
Company's equity award program with the timing and amount of equity awards
determined by the Board in its sole discretion. Notwithstanding any provision
in
the applicable award documents, the Executive's equity awards will immediately
become fully vested and unrestricted (i) upon the termination of the Executive's
employment by the Company without Cause or due to the Executive's death or
Incapacity (as defined below) and (ii) upon a Change of Control.
5.
Termination
and Compensation Thereon.
(a) Termination.
Subject
to the terms and conditions of this Agreement, the Executive’s employment
pursuant to this Agreement may be terminated either by the Executive or the
Company at any time and for any reason. The term “Termination
Date”
shall
mean the date on which a termination is to be effective pursuant to the notice
of termination given by the party terminating the employment
relationship.
(b) Death.
(i)
Executive’s
employment hereunder shall terminate upon his death. In such event, the Company
shall, within thirty (30) days following the date of death, pay to such person
as the Executive shall have designated in a notice filed with the Company,
or,
if no such person shall have been designated, to his estate, a lump sum amount
equal to (i) the Salary (at the rate in effect as of the Termination Date)
that
would have been due to the Executive had this Agreement been in effect and
he
remained employed from the date of his death until the Expiration Date, (ii)
any
accrued and unpaid Salary through the date of death, and (iii) any bonuses
declared to be payable to Executive for any fiscal periods of the Company ending
prior to his date of death.
(ii) Upon
Executive’s death during or after the Employment Term, the Company shall, within
thirty (30) days following the date of death, also pay to such person as
Executive shall have designated in a notice filed with the Company, or if no
such person shall have been designated, to his estate, a lump-sum death benefit
in the amount of $1.5 million in accordance with the Death Benefit Agreement
attached as Exhibit
A
hereto.
(iii) Following
the Executive’s death, his spouse and eligible dependents shall be entitled to
continuation of medical, dental and health benefits for two (2) years pursuant
to Section 4(d) hereof.
(iv) Upon
Executive’s death, the Retirement Compensation provided in Section 5(h) shall
vest in full and the Company shall pay to such
person as the Executive shall have designated in a notice filed with the
Company, or, if no such person shall have been designated, to his estate,
a
lump-sum
amount equal to the entire remaining unpaid balance of the Retirement
Compensation accrued through his date of death.
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(c) Incapacity.
If, in
the reasonable judgment of the Board, as a result of the Executive's incapacity
due to physical or mental illness or otherwise, the Executive shall for at
least
six (6) consecutive months during the Employment Term have been unable to
perform his duties under this Agreement on a full-time basis, the Company may
terminate the Executive's employment hereunder by notice to the Executive.
In
such event, the Company shall (i) through the Expiration Date, continue to
pay
the Executive his Salary and automobile allowance in accordance with the
Company’s payroll practices (at the rate in effect as of the Termination Date),
(ii) provide
the Executive and his spouse and eligible dependents with continuation of
medical, dental and health benefits for two (2) years pursuant to Section 4(d)
hereof and (iii) pay to the Executive (A) any accrued and unpaid Salary through
the Termination Date and (B) any bonuses declared to be payable to Executive
for
any fiscal periods ending prior to the Termination Date. In addition, upon
a
termination due to incapacity, the Retirement Compensation provided in Section
5(h) shall vest in full and the Company shall pay to the Executive a lump-sum
amount equal to the entire remaining unpaid balance of the Retirement
Compensation accrued through the Termination Date. Any
dispute
between the Board and the Executive with respect to the Executive's incapacity
shall be settled by reference to a competent medical authority mutually agreed
to by the Board and the Executive, whose decision shall be binding on all
parties.
(d) Termination
by the Company for Cause; Resignation by the Executive.
If the
Executive's employment is terminated by the Company for Cause or the Executive
resigns his employment for any reason, the Company shall have no further
obligations to the Executive hereunder after the Termination Date, except for
payment of any accrued and unpaid Salary through the Termination Date. If the
Executive’s employment is (i) terminated for Cause at any time or (ii) the
Executive resigns his employment for any reason prior to the Vesting Date (as
defined in Section 5(h)(ii), the Executive shall immediately forfeit all rights
to the Retirement Compensation provide for in Section 5(h). For purposes of
this
Agreement, "Cause"
shall
mean (i) the Executive's material failure, refusal or neglect to perform and
discharge his duties and responsibilities hereunder (including duties prescribed
by the Board pursuant to Section 3), other material breach of the terms
hereof, or breach of any fiduciary duties he may have because of any position
he
holds with the Company or any subsidiary or affiliate thereof or (ii) a felony
conviction or a conviction for any crime involving the Executive's personal
dishonesty or moral turpitude.
(e) Termination
Without Cause.
The
Company may terminate the Executive’s employment hereunder at any time without
Cause. In such event, the Company shall pay to the Executive (i) any accrued
and
unpaid Salary through the Termination Date, (ii) any bonuses declared to be
payable to Executive for any fiscal periods of the Company ending prior to
the
Termination Date and (iii) a lump sum equal to his Salary from the Termination
Date through the Expiration Date. In
addition, upon the termination of the Executive’s employment without Cause, the
Retirement Compensation provided in Section 5(h) shall vest in full and
the
Company shall pay to the Executive a lump-sum amount equal to the entire
remaining unpaid balance of the Retirement Compensation accrued through the
Termination Date.
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(f) Change
of Control.
(i)
Upon
a
“Change of Control”, the Retirement Compensation provided in Section 5(h) shall
vest in full. In addition, if contemporaneously with a Change of Control, the
Executive’s employment is terminated without Cause, within thirty (30) days
after the Termination Date, the Company or its successor in interest shall
(i)
pay to the Executive a lump-sum amount equal to three (3) times the Executive’s
Salary (at the rate in effect as of the Termination Date), which lump sum amount
shall not be pro-rated, (ii) provide the Executive and his spouse and eligible
dependents with continuation of medical, dental and health benefits for two
(2)
years pursuant to Section 4(d) hereof and (iii) pay to the Executive a lump-sum
amount equal to the entire remaining unpaid balance of the Retirement
Compensation accrued through the Termination Date. For purposes of this
Agreement, a “Change
of Control”
shall
have the meaning ascribed thereto under Section 409A the U.S. Internal Revenue
Code of 1986, as amended (the “Code”)
and the
regulations and guidance promulgated thereunder. The
obligations of the Company pursuant to this Section 5(f) shall survive any
termination of this Agreement or the Executive’s employment or any resignation
of such employment by the Executive pursuant to this Section 5(f).
(ii) Grantor
Trust.
If, at
any time during the Employment Term the Board determines that a Change of
Control is likely to occur, the Company hereby agrees to establish a grantor
trust pursuant to Subpart E, part I, subchapter J, chapter I, subtitle A of
the
Code. The grantor trust shall serve as a vehicle for accumulating assets to
secure its potential obligations to the Executive in the event of a Change
of
Control. Notwithstanding the establishment of a trust, the Company’s obligation
upon a Change of Control may be paid from the general assets of the Company
or
from assets of the trust. Any trust so established and any assets held therein
will be subject to the claims of the Company’s creditors.
(g) Certain
Additional Payments by the Company.
(i)
Anything
in this Agreement to the contrary notwithstanding, in the event it shall be
determined that any payment, distribution or other action by the Company to
or
for the benefit of the Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise) including,
without limitation any additional payments required under this Section 5(g)
(a
"Payment")
would
be subject to an excise tax imposed by Section 4999 of the Code, or any interest
or penalties are incurred by the Executive with respect to any such excise
tax
(such excise tax, together with any such interest and penalties, are hereinafter
collectively referred to as the "Excise
Tax"),
the
Company shall make a payment to the Executive (a "Gross-Up
Payment")
in an
amount such that after payment by the Executive of all taxes (including any
Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has
had
paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up
Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and
(y)
the product of any deductions disallowed because of the inclusion of the
Gross-Up Payment in the Executive’s adjusted gross income and the highest
applicable marginal rate of federal income taxation for the calendar year in
which the Gross-Up Payment is to be made. For purposes of determining the amount
of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income
taxes at the at the highest marginal rate of taxation for the calendar year
in
which the Gross-Up Payment is to be made, and (ii) pay applicable state and
local income taxes at the highest marginal rates of taxation for the calendar
year in which the Gross-Up Payment is to be made, net of the maximum reduction
in federal income taxes which could be obtained from deduction of such state
and
local income taxes.
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(ii) Subject
to
the provisions of paragraph (iii) of this Section 5(g) all determinations
required to be made under this Section 5(g), including whether and when a
Gross-Up Payment is required and the amount of such Gross-Up Payment and the
assumptions to be utilized in arriving at such determination, shall be made
by
Deloitte & Touche LLP (the "Accounting
Firm")
which
shall provide detailed supporting calculations both to the Company and the
Executive within fifteen (15) days of the receipt of notice from the Executive
that there has been a Payment, or such earlier time as is requested by the
Company. In the event that the Accounting Firm is serving as accountant or
auditor for the individual, entity or group effecting the Change of Control,
the
Executive shall appoint another nationally recognized accounting firm to make
the determinations required hereunder (which accounting firm shall then be
referred to as the Accounting Firm hereunder). All fees and expenses of the
Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment,
as
determined pursuant to this Section 5(g), shall be paid by the Company to the
Executive within five (5) days of the receipt of the Accounting Firm's
determination. If the Accounting Firm determines that no Excise Tax is payable
by the Executive, it shall furnish the Executive with a written opinion that
failure to report the Excise Tax on the Executive's applicable federal income
tax return would not result in the imposition of a negligence or similar
penalty. Any determination by the Accounting Firm shall be binding upon the
Company and the Executive. As a result of the uncertainty in the application
of
Section 4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments which will
not
have been made by the Company should have been made ("Underpayment"),
consistent with the calculations required to be made hereunder. In the event
that the Company exhausts its remedies pursuant to Section 5(g) and the
Executive thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that has occurred
and any such Underpayment shall be promptly paid by the Company to or for the
benefit of the Executive.
(iii) The
Executive shall notify the Company in writing of any claim by the Internal
Revenue Service that, if successful, would require the payment by the Company
of
the Gross-Up Payment. Such notification shall be given as soon as practicable
but no later than ten (10) days after
the
Executive is informed in writing of such claim and shall apprise the Company
of
the nature of such claim and the date on which such claim is requested to be
paid. The Executive shall not pay such claim prior to the expiration of the
thirty (30) day period
following the date on which the Executive gives such notice to the Company
(or
such shorter period ending on the date that any payment of taxes with respect
to
such claim is due). If the Company notifies the Executive in writing prior
to
the expiration of such period that it desires to contest such claim, the
Executive shall;
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(A) give
the
Company any information reasonably requested by the Company relating to such
claim;
(B) take
such
action in connection with contesting such claim as the Company shall reasonably
request in writing from time to time, including, without limitation, accepting
legal representation with respect to such claim by an attorney reasonably
selected by the Company;
(C) cooperate
with the Company in good faith in order effectively to contest such claim;
and
(D) permit
the
Company to participate in any proceedings relating to such claim; provided,
however,
that the
Company shall bear and pay directly all costs and expenses (including additional
interest and penalties) incurred in connection with such contest and shall
indemnify and hold the Executive harmless, on an after-tax basis, for any Excise
Tax or income tax (including interest and penalties with respect thereto)
imposed as a result of such representation and payment of costs and expenses.
Without limitation on the foregoing provisions of this Section 5(g)(iii), the
Company shall control all proceedings taken in connection with such contest
and,
at its sole option, may pursue or forego any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in respect
of
such claim and may, at its sole option, either direct the Executive to pay
the
tax claimed and xxx for a refund or contest the claim in any permissible manner,
and the Executive agrees to prosecute such contest to a determination before
any
administrative tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine; provided,
however,
that if
the Company directs the Executive to pay such claim and xxx for a refund, the
Company shall advance the amount of such payment to the Executive, on an
interest-free basis and shall indemnify and hold the Executive harmless, on
an
after-tax basis, from any Excise Tax or income tax (including interest or
penalties with respect thereto) imposed with respect to such advance or with
respect to any imputed income with respect to such advance; and provided further
that any
extension of the statute of limitations relating to payment of taxes for the
taxable year of the Executive with respect to which such contested amount is
claimed to be due is limited solely to such contested amount. Furthermore,
the
Company's control of the contest shall be limited to issues with respect to
which a Gross-Up Payment would be payable hereunder and the Executive shall
be
entitled to settle or contest, as the case may be, any other issue raised by
the
Internal Revenue Service or any other taxing authority.
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(iv) If,
after
the receipt by the Executive of an amount advanced by the Company pursuant
to
Section 5(g)(iii),
the
Executive becomes entitled to receive any refund with respect to such claim,
the
Executive shall (subject to the Company's complying with the requirements of
Section 5(g)(iii))
promptly
pay to the Company the amount of such refund (together with any interest paid
or
credited thereon after taxes applicable thereto). If, after the receipt by
the
Executive of an amount advanced by the Company pursuant to Section 5(g)(iii),
a
determination is made that the Executive shall not be entitled to any refund
with respect to such claim and the Company does not notify the Executive in
writing of its intent to contest such denial of refund prior to the expiration
of thirty (30) days after such determination, then such advance shall be
forgiven and shall not be required to be repaid and the amount of such advance
shall offset, to the extent thereof, the amount of Gross-Up Payment required
to
be paid.
(h) Retirement
Compensation
(i) Subject
to
vesting pursuant to Section 5(h)(ii), if Executive’s employment is terminated
for any reason other than Cause, the Company shall pay to Executive a lump
sum
amount equal to the amount by which (A) the product of (1) one-half multiplied
by Executive’s average annual salary for the three (3) year period preceding the
Termination Date times (2) the number of years (including any partial year)
since April 27, 2007 (the “Retirement
Compensation”)
exceeds
(B) the sum of any amounts previously distributed to Executive pursuant to
Sections 5(h)(iii) and (iv). The lump sum amount to be paid shall not be
present-valued or otherwise reduced by use of any other discount or discounting
method. To the extent vested, the payment will be made to Executive within
five
(5) business days following the Termination Date.
(ii) The
Retirement Compensation will vest in full on April 26, 2012 (the “Vesting
Date”)
provided that the Executive remains continuously employed through the Vesting
Date. In addition the Retirement Compensation will vest in full upon (i) the
Executive’s termination of employment due to (A) death pursuant to Section 5(b),
(B) incapacity pursuant to Section 5(c) or (C) by the Company without Cause
pursuant to Section 5(e) and (ii) a Change of Control. Except as otherwise
provided herein, prior to vesting pursuant to this Section 5(h)(ii), the
Executive’s rights to the Retirement Compensation shall be the mere contractual
right of an unsecured creditor. Prior to the Vesting Date the Company may elect
to establish a trust pursuant to Subpart E, part I, subchapter J, chapter I,
subtitle A of the Code. Any trust so established and any assets held therein
will be subject to the claims of the Company’s creditors.
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(iii) Within
ninety (90) business days following the Vesting Date, the Company shall
establish a trust (the “Retirement
Trust”)
for the
remaining duration of the Employment Term, and, commencing on the Vesting Date
and on a quarterly basis, thereafter (each a “Contribution
Date”)
the
Company shall contribute to the Retirement Trust for the benefit of the
Executive an amount equal to (A) the Retirement Compensation that would be
payable to Executive under Section 5(h)(i) if the Contribution Date was his
Termination Date minus (B) the total of all contributions made to the Retirement
Trust by the Company as of such Contribution Date. The Retirement Trust to
which
the Company shall make these contributions shall be irrevocable. The Retirement
Trust shall provide that the Executive may withdraw from the Retirement Trust,
within the thirty (30)-day period
beginning on the date on which he receives notice from the Company that the
Company has made a contribution pursuant to this Section 5(h)(iv) an amount
up
to but not to exceed the amount of that contribution. If and to the extent
that
the Executive fails to exercise this withdrawal right within the thirty (30)-day
periods, such withdrawal right shall lapse. The Retirement Trust also shall
contain such other provisions as the Company and the Executive reasonably agree
are necessary in order for the Retirement Trust to qualify as a grantor trust
under Section 671 of the Code with the Executive as the grantor. The trust
agreement for the Retirement Trust shall provide that any assets remaining
in
the Retirement Trust, after payment of all the retirement compensation payable
pursuant to this Section 5(h)(iii), shall be payable to the Executive, and
that
prior to payment of such retirement compensation, the assets of the Retirement
Trust shall be exempt from the claims of the Company’s creditors.
(iv) As
of the
last day of each calendar quarter ending on or after the Vesting Date, during
the Employment Term, the trustee of the Retirement Trust shall be required
to
distribute to Executive 25% of the amount of the Assumed Taxes that the Company
reasonably estimates will be payable by Executive for the calendar year for
which the distribution is being made and as a result of his beneficial interest
in the Retirement Trust. For this purpose, the term “Assumed
Taxes”
shall
mean the federal, state and local income and employment taxes that would be
payable by Executive for the year in question, assuming that the amount taxable
would be subject to the highest federal and applicable state and local income
and employment tax rates.
6.
Amendments.
No
amendment to this Agreement or any schedule hereto shall be effective unless
it
shall be in writing and signed by each party hereto.
7. Notices.
All
notices and other communications hereunder shall be in writing and shall be
deemed given when delivered personally or sent by telecopy or three days after
being mailed by registered or certified mail (return receipt requested) to
the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
If
to the
Company, to it at:
BE
Aerospace, Inc.
0000
Xxxxxxxxx Xxxxxx Xxx
Xxxxxxxxxx,
XX 00000
Attention:
Chief Executive Officer
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with
a
copy to:
BE
Aerospace, Inc.
0000
Xxxxxxxxx Xxxxxx Xxx
Xxxxxxxxxx,
XX 00000
Attention:
General Counsel
If
to the
Executive, to him at:
Xxxxxxx
X.
Xxxxxxx
000
Xxxxxxx Xxxxx
Xxxxxxx-Xxxxx,
XX 00000
8. Unfunded
Status.
This
Agreement is intended to constitute an unfunded plan for incentive compensation.
Except with respect to the Retirement Compensation following the Vesting Date,
nothing contained herein shall give the Executive any rights that are greater
than those of a general unsecured creditor of the Company. In its sole
discretion, the Stock Option and Compensation Committee of the Board may
authorize the creation of trusts, acquisition of life insurance policies or
other arrangements to meet the obligations created under this
Agreement.
9. Entire
Agreement.
This
Agreement and the Option Agreement constitute the entire agreement among the
parties hereto pertaining to the subject matter hereof and supersedes all prior
and contemporaneous agreements, understandings, negotiations and discussions,
whether oral or written, of the parties; provided,
however,
that
this Agreement shall not supersede the Proprietary Rights Agreement dated as
of
the date hereof between the Executive and the Company attached as Exhibit
A
which is
incorporated herein by reference.
10. Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
alter or otherwise affect the meaning hereof.
11.
Counterparts.
This
Agreement may be executed in any number of counterparts which together shall
constitute one instrument.
12.
Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Florida.
13.
Withholding.
Without
limiting the effect of Sections 5(g) and 15 hereof, all payment made by the
Company under this Agreement shall be reduced by any tax or other amounts
required to be withheld by the Company under applicable law.
14.
Legal
Fees.
In the
event of a dispute between the parties with respect to any payments due
hereunder in connection with a Change of Control, the Company will pay the
costs
of any legal fees and related expenses incurred in connection with such dispute.
Such costs and expenses shall be advanced to the Executive currently as
reasonably required to continue such action or proceeding.
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15.
Section
409A.
(a)
Notwithstanding any provision of this Agreement to the contrary, if the
Executive is a “specified employee” as defined in Section 409A of the Code he
shall not be entitled to any payments upon a termination of his employment
until
the earlier of (i) the date which is the first business day following the date
that is six months after the Executive’s termination of employment for any
reason other than death or (ii) the Executive’s date of death. The provisions of
this Section 14(a) shall only apply if required to comply with Section 409A
of
the Code.
(b)
If any
provision of this Agreement contravenes any regulations or Treasury guidance
promulgated under Section 409A of the Code, or could cause any amounts or
benefits hereunder to be subject to taxes, interest and penalties under Section
409A of the Code, the Company may, in its sole discretion and without the
Executive's consent, modify the Agreement to: (i) comply with, or avoid being
subject to, Section 409A of the Code or (ii) avoid the imposition of taxes,
interest and penalties under Section 409A of the Code, provided,
however,
that
there shall be maintained, to the maximum extent practicable, the original
intent and economic benefits to the Executive of the applicable provision
without contravening the provisions of Section 409A of the Code. This Section
15(b) does not create an obligation on the part of the Company to modify this
Agreement and does not guarantee that the amounts or benefits owed under this
Agreement will not be subject to interest and penalties under Section 409A
of
the Code.
(c)
The
provisions of Section 5(g) of this Agreement, mutatis
mutandis,
shall
apply to any imposition of taxes on the Executive under Section 409A of the
Code
so that the Executive shall be fully grossed up for the amount of, and shall
not
be adversely affected by, such taxes.
16.
Enforceability;
Waiver.
The
invalidity and unenforceability of any term or provision hereof shall not affect
the validity or enforceability of any other term or provision hereof. The
Executive's or the Company's failure to insist upon strict compliance with
any
provision hereof of this Agreement or the failure to assert any right that
the
Executive or the Company may have hereunder, shall not be deemed to be a waiver
of such provision or right or any other provision or right of this Agreement.
Similarly, the waiver by any party hereto of a breach of any provision of this
Agreement by the other party will not operate or be construed as a waiver of
any
other or subsequent breach by such other party.
17.
Assignment.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, successors and permitted assigns. This Agreement
may
be assigned by the Company. The Executive may not assign or delegate his duties
under this Agreement without the Company’s prior written approval.
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18.
Survival.
The
entitlement of the Executive and the obligations of the Company pursuant to
Sections 5 and 15 hereof and the provisions of Section 6-13 and 15-18 hereof
shall each survive any termination or expiration of this Agreement, or any
termination or resignation of the Executive's employment, as the case may
be.
IN
WITNESS
WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.
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EXECUTIVE
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____________________________________
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Xxxxxxx
X. Xxxxxxx
|
|
|
BE
AEROSPACE, INC.
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_________________________________
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|
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Name:
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|
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Title:
|
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12
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Exhibit
A
Death
Benefit Agreement
Exhibit
B
Proprietary
Rights Agreement
