a6092209ex10-7.htm


    
      Exhibit
10.7

       

      [FORM OF
RESTRICTED STOCK UNIT AWARD AGREEMENT – MICHAEL B. BAUGHAN / 
THOMAS P.
MCCAFFREY – FOR USE AS OF NOVEMBER 2009 AND THEREAFTER]

      


      BE
AEROSPACE, INC. 2005 LONG-TERM INCENTIVE PLAN

      RESTRICTED
STOCK UNIT AWARD AGREEMENT

       

      THIS
RESTRICTED STOCK UNIT 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 Units (the “RSUs”)
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
________________ RSUs, subject to adjustment as set forth in the
Plan.  Seventy-five percent (75%) of the RSUs shall be subject to
time-based vesting (“Time-Based
RSUs”) and twenty-five percent (25%) of the RSUs shall be subject to
performance-based vesting (“Performance-Based
RSUs”).  Each RSU gives the Participant the unsecured right to
receive, subject to the terms and conditions of the Plan and this Award
Agreement, one share of Common Stock.  The Participant shall not be
required to pay any additional consideration for the issuance of the shares of
Common Stock upon settlement of the RSUs.

       

      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 RSUs 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.  Subject to the terms and conditions hereof, the
Participant shall vest in the RSUs as follows, unless previously vested or
cancelled in accordance with the provisions of the Plan or this Award Agreement
(each applicable date a “Scheduled Vesting
Date ”):

       

      (b)           
Time-Based
RSUs.  On each of the first, second and third anniversaries of
the Date of Grant, thirty-three and one-third percent (33 1/3%) of the
Time-Based RSUs shall vest and no longer be subject to cancellation pursuant to
Section 5 or the transfer restrictions set forth in Section 7.

       

      
        
          
          

        

        
          1

          
            

          

        

        
          
          

        

      

      


      (c)           
Performance-Based
RSUs.  For each twelve (12)-month period ending December 31,
20__, 20__ and 20__, the Board of Directors will approve an annual return on
equity target (each, an “Annual
Performance Target”).  Subject to the Company achieving such
Annual Performance Targets, on an average basis over the three (3)-year period
ending December 31, 20__ (the “Performance
Period” and such average attainment the “Total Performance
Target”), the Performance-Based RSUs shall vest pursuant to the following
terms and no longer be subject to cancellation pursuant to Section 5 or the
transfer restrictions set forth in Section 7:

       

      (i)           If
the Company achieves or exceeds ninety percent (90%) of the Total Performance
Target, one hundred percent (100%) of the Performance-Based RSUs shall vest on
the fourth anniversary of the Date of Grant (the “Performance
Vesting Date”).

       

      (ii)           If
the Company achieves over eighty-five percent (85%) but less than ninety percent
(90%) of the Total Performance Target, between fifty percent (50%) and one
hundred percent (100%) of the Performance-Based RSUs (as determined on the basis
of linear interpolation) shall vest on the Performance Vesting
Date.

       

      (iii)           If
the Company achieves eighty-five percent (85%) of the Total Performance Target,
fifty percent (50%) of the Performance-Based RSUs shall vest on the Performance
Vesting Date.

       

      (iv)           If
the Company achieves over eighty percent (80%) but less than eighty-five percent
(85%) of the Total Performance Target, between twenty-five percent (25%) and
fifty percent (50%) of the Performance-Based RSUs (as determined on the basis of
linear interpolation) shall vest on the Performance Vesting Date.

      


      (v)            If
the Company achieves less than eighty percent (80%) of the Total Performance
Target, the Participant forfeits the amount of Performance-Based RSUs that would
have vested on the Performance Vesting Date.

       

      The
applicable Annual Performance Targets shall be established by the Committee in
writing no later than 90 days after the commencement of each applicable year
during the Performance Period for purposes of Section 162(m) of the Internal
Revenue Code of 1986, as amended and the regulations and guidance promulgated
thereunder (the “Code”). 

       

      4.           
Settlement.  Each
RSU shall be settled by delivery of share of Common Stock within thirty (30)
days following the applicable Scheduled Vesting Date or such earlier date on
which the RSUs vest pursuant to this Award Agreement (each, a “Settlement
Date”).  In the sole discretion of the Committee, in lieu of
the delivery of shares of Common Stock, the RSUs may be settled through a
payment in cash equal to the Fair Market Value of the applicable number of
shares of Common Stock, determined on the applicable Scheduled Vesting Date or,
in the case of settlement in accordance with Sections 5 and 7,
the date of the Participant’s termination of employment or the effective date of
the Change in Control, as applicable.

       

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

       

      5.           
Termination of
Employment.

       

      (a)           
Termination of
Employment for Cause; Resignation without Good Reason.  In the
event that prior to the vesting of all RSUs hereunder, 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 April 27, 2007 (the “Employment
Agreement”) all unvested RSUs shall be cancelled immediately without
consideration as of the date of such termination.

       

      (b)         
Death; Incapacity;
Termination by the Company without Cause; Resignation for Good
Reason.  In the event that prior to the vesting of all RSUs
hereunder, the Participant’s employment is terminated (i) due to the
Participant’s death or Incapacity (as defined in the Employment Agreement), (ii)
by the Company without Cause or (iii) by the Participant for Good Reason (as
defined in the Employment Agreement), all of the unvested RSUs shall vest
immediately.

       

      (c)           Following
a Participant’s death or termination of employment for any reason, any vested
RSUs shall be settled within thirty (30) days.

       

      6.           
Change in
Control.  Upon a Change in Control (as defined in the
Employment Agreement) prior to the vesting of all RSUs hereunder, all of the
unvested RSUs shall vest immediately and shall be settled within thirty (30)
days.

       

      7.           
Nontransferability of
RSUs.  Unless otherwise determined by the Committee, the RSUs
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 RSUs, including, without limitation, for no consideration to a
charitable institution or a Permitted Transferee.  Any RSUs
transferred to a charitable institution may not be further transferable without
the Committee’s approval and any RSUs 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 no rights as a
stockholder with respect to the RSUs.  Upon settlement, the
Participant shall have all rights as a stockholder with respect to the shares
delivered to the Participant, if any, including, without limitation, voting
rights and the right to receive dividends.

       

      9.           
Dividend
Equivalents.  If, after the Date of Grant and prior to the
applicable Settlement Date, dividends with respect to the Common Stock are
declared or paid by the Company, the Participant shall be entitled to receive
dividend equivalents in an amount, without interest, equal to the cumulative
dividends declared or paid on a share of Common Stock, if any, during such
period multiplied by the number of RSUs.  The dividend equivalents
shall be paid in cash or shares of Common Stock, as determined by the Company in
its discretion, on the applicable Settlement Date.  If the
Participant’s employment with the Company terminates prior to the applicable
Settlement Date for any reason set forth in Section 5 of this Award Agreement or
if a Change of Control occurs, the Participant shall be entitled to receive all
accrued and unpaid dividend equivalents at the time the RSUs are settled in
accordance with Sections 5 and 7, as applicable.  If the Participant’s
employment terminates prior to the applicable Settlement Date for any reason set
forth in Section 5, any accrued and unpaid dividend equivalents shall be
cancelled.

       

      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

      

       

      10.           
Legend on
Certificates.  The Committee may cause a legend or legends to
be put on certificates representing the shares of Common Stock delivered upon
settlement of the RSUs 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 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.           
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 RSUs 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 RSUs 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
RSUs 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 RSUs 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.

       

      
        
          
          

        

        
          4

          
            

          

        

        
          
          

        

      

       

      13.           
Taxes and
Withholding.  No later than the date as of which an amount with
respect to the RSUs 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 cash, shares of
Common Stock, including Common Stock that is part of the award that gives rise
to the withholding requirement, or any other method approved by the
Committee.  The obligations of the Company to deliver the certificates
for shares of Common Stock (or the cash value pursuant to Section 4) 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 cash or shares of Common Stock to
be delivered upon settlement of the RSUs.

         

      14.           
Securities
Laws.  In connection with the grant or vesting of the RSUs, 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.

       

      15.           
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 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.

       

      
        
          
          

        

        
          5

          
            

          

        

        
          
          

        

      

       

      (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 RSUs are 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 15(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 RSU in any manner that is consistent
with the Plan and approved by the Committee.

       

      (f)           
Section
409A.

       

      (i)           The
RSUs are intended to constitute “short-term deferrals” for purposes of Section
409A of the Code and the regulations and guidance promulgated thereunder (“Section 409A
").  If any provision of the Plan or this Award Agreement
would, in the reasonable good faith judgment of the Committee, result or likely
result in the imposition on the Participant, a beneficiary or any other person
of a penalty tax under Section 409A, the Committee may modify the terms of the
Plan Documents, without the consent of the Participant, beneficiary or such
other person, in the manner that the Committee may reasonably and in good faith
determine to be necessary or advisable to avoid the imposition of such penalty
tax.  This Section 15(f) does not create an obligation on the part of
the Company to modify the Plan Documents and does not guarantee that the RSUs
will not be subject to taxes, interest and penalties under Section
409A.

       

      (ii)           Notwithstanding
anything to the contrary in the Plan Documents, to the extent that the RSUs
constitute deferred compensation for purposes of Section 409A and Participant is
a “Specified
Employee”
(within the meaning of the Committee’s established methodology for
determining “Specified
Employees” for
purposes of Section 409A), no payment or distribution of any amounts with
respect to the RSUs that are subject to Section 409A may be made before the
first business day following the six (6) month anniversary from the
Participant’s Separation from Service from the Company Group (as defined in
Section 409A) or, if earlier, the date of the Participant’s death.

       

      (g)           
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.

       

      (h)           
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).

    

     

     

    
      
        
          	 	BE
      AEROSPACE, INC.	 	 
	 	 	 	 	 
	
                   

                	
                  
                    By:

                  

                	 	 	 
	 	
                  Name:
       Amin
      Khoury

                	 	 
	 	
                  Title: Chairman
      of the Board

                	 	 


        

      

       

       

       

       

      6