a6092209ex10-4.htm


    
      Exhibit
10.4

       

      [STANDARD
FORM OF RESTRICTED STOCK UNIT AWARD AGREEMENT – 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”):

       

      (a) 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.

       

      (b) 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:

       

      
        
          
          

        

        
          1

          
            

          

        

        
          
          

        

      

       

      (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.

       

      5.           Termination of
Employment.  In the event of the Participant’s termination of
employment with the Company prior to the vesting of all RSUs hereunder for any
reason other than death or Disability (as defined in the Company’s long-term
disability plan applicable to the participant), all unvested RSUs shall be
cancelled immediately without consideration as of the date of such
termination.  If, prior to the vesting of all RSUs hereunder, the
Participant has a termination of employment with the Company as a result of his
death or Disability, all of the unvested RSUs shall vest
immediately.  Following a Participant’s death or termination of
employment for any reason, any vested RSUs shall be settled within thirty (30)
days.

       

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

       

      6.           Change in
Control.  Upon
a Change in Control prior to the vesting of all RSUs hereunder, all of the
unvested RSUs shall vest immediately and shall be settled within thirty (30)
days.  For purposes of this Award Agreement, a “Change of
Control” shall mean a “change in control event”
within the meaning of the default rules under Section 409A of the
Code.

       

      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.

       

      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.

       

      
        
          
          

        

        
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      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.

       

      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.

       

      
        
          
          

        

        
          4

          
            

          

        

        
          
          

        

      

       

      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.

       

      (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.

       

      
        
          
          

        

        
          5

          
            

          

        

        
          
          

        

      

       

      (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

                  	 	 


          

        

         

         

         

         

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