a6092209ex10-5.htm


    
      Exhibit
10.5

       

      [FORM OF
RESTRICTED STOCK AWARD AGREEMENT – AMIN J. KHOURY – FOR 
USE AS OF NOVEMBER
2009 AND THEREAFTER]

      


      BE AEROSPACE, INC. 2005 LONG-TERM
INCENTIVE PLAN

      RESTRICTED
STOCK AWARD AGREEMENT

       

       THIS
RESTRICTED STOCK AWARD AGREEMENT (the “Award
Agreement”) is made effective as of ______________ (the “Date of
Grant”) between BE Aerospace, Inc., a Delaware corporation (the “Company”),
and Amin J. Khoury (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.  Seventy-five percent (75%) of the Restricted Stock shall be
subject to time-based vesting (“Time-Based
Restricted Stock”) and twenty-five percent (25%) of the Restricted Stock
shall be subject to performance-based vesting (“Performance-Based
Restricted Stock”).

       

      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.
Subject to the terms and conditions hereof, the Participant shall vest in
the Restricted Stock as follows, unless previously vested or canceled in
accordance with the provisions of the Plan or this Award Agreement:

       

      (a)  
Time-Based Restricted
Stock.  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 Restricted Stock shall vest and no longer be subject to cancellation
pursuant to Section 4 or the transfer restrictions set forth in
Section 7.

       

      (b)  
Performance-Based
Restricted Stock.  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 Restricted Stock shall vest pursuant to
the following terms and no longer be subject to cancellation pursuant to Section
4 or the transfer restrictions set forth in Section 7:

       

      
        
          
          

        

        
          1

          
            

          

        

        
          
          

        

      

       

      (i)  
If the Company achieves or exceeds ninety percent (90%) of the Total Performance
Target, one hundred percent (100%) of the Performance-Based Restricted Stock
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 Restricted Stock
(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 Restricted
Stock 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 Restricted Stock
(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 Restricted
Stock 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.  
Resignation without
Good Reason.  In the event that prior to the vesting of all
shares of restricted stock hereunder, the Participant resigns his employment
without Good Reason and does not render (or cease rendering) Consulting Services
(each as defined in the employment agreement between the Company and the
Participant dated April 27, 2007 (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; Resignation for Good Reason.  In
the event that prior to the vesting of all shares of restricted stock 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 for any
reason or (iii) by the participant 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.

       

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

       

      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 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.

       

      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.

       

      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

      

       

      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 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.

       

      
        
          
          

        

        
          4

          
            

          

        

        
          
          

        

      

       

      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 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.  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.

       

      (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 17(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.

       

      (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).

    

     

     

    
      
         

        
          
            	 	BE
      AEROSPACE, INC.	 	 
	 	 	 	 	 
	
                     

                  	
                    
                      By:

                    

                  	    	 	 
	 	
                    Name:  Thomas
      P. McCaffrey

                  	 	 
	 	
                    Title: Senior
      Vice President & Chief Financial Officer

                  	 	 


          

        

         

         

         

         

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