EXHIBIT
10.9




EXECUTION
COPY






AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
  This
Amended and Restated Employment Agreement (this “Agreement”)
is made as of December 31, 2008 by and between BE Aerospace, Inc., a Delaware
corporation (the “Company”),
and Thomas P. McCaffrey (“Executive”).
  RECITALS
  WHEREAS,
Executive and the Company entered into an Amended and Restated Employment
Agreement dated as of April 27, 2007 (the “Employment
Agreement”); and
  WHEREAS,
Executive, having provided services to the Company since May 1, 1993, agrees to
continue to provide services for an additional
period as provided herein and the Company wishes to procure such services;
and
  WHEREAS,
Executive and the Company wish to further amend and restate the Employment
Agreement in its entirety in the manner set forth herein.
  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superseded and replaced in its entirety by this Agreement.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. Term.  Unless
otherwise terminated pursuant to the provisions of Section 5 hereof,
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.  Executive shall serve the Company in the capacity of
Senior Vice President of Administration and Chief Financial Officer, or in such
other position 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. Executive shall perform and discharge, faithfully, diligently and to
the best of his ability, such duties and responsibilities.  Executive
shall devote substantially all of his working time and efforts to the business
and affairs of the Company.
  4. Compensation.
  (a) Salary.  During
the Employment Term, Executive shall receive an annual salary (the “Salary”)
payable at the rate of four hundred ninety thousand five hundred dollars
($490,500) per annum.  Such rate shall be subject to adjustment from
time to time by the Compensation Committee of the Board (the “Compensation
Committee”) as hereinafter provided; provided, however, that it
shall at no time be adjusted below the Salary for the preceding
year.  On July 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 (July through June) immediately preceding such
July 1.  If the Index is no longer issued, the Compensation Committee
and 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.
   
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   (b) Incentive
Bonus.  So long as employed, Executive may receive an incentive
bonus for each fiscal year or portion thereof during which Executive has been
employed hereunder as determined by the Compensation Committee at the end of the
applicable fiscal year.  The incentive bonus, if any, shall be paid in
accordance with Company policy, but in any event, no later than March 15th of the
year following the year in respect of which Executive earned such
bonus.
  (c) Expenses.  Executive
shall be entitled to receive prompt payment of, or reimbursement for, all
reasonable business expenses incurred by him during the Employment Term on
behalf of the Company.
  (d) Benefits.  During
the Employment Term, Executive shall be entitled to participate in all employee
benefit plans, life insurance plans, disability income plans, incentive
compensation plans and other benefit plans, other than retirement plans, as may
be from time to time in effect for executives of the Company
generally.  In accordance with Company policy, 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, Executive and his 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.  If any
reimbursable medical and dental care expenses constitute deferred compensation
for purposes of Section 409A of the Internal Revenue Code of 1986, as
amended and the regulations and guidance promulgated thereunder (the “Code”),
the Company shall reimburse such medical and dental care expenses as soon as
practicable consistent with the Company’s practice, but in no event later than
the last day of the calendar year next following the calendar year in which such
expenses are incurred.
  (e) Automobile.  So
long as employed, Executive shall receive an automobile either owned or leased
by the Company or a monthly automobile allowance of $1,100 per month (the “Automobile
Allowance”), at the discretion of the Company.  The Automobile
Allowance, if applicable, shall be paid in accordance with Company policy, but
in any event, no later than March 15th of the
year following the year in which it shall accrue.
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  (f) Equity
Compensation.  So long as employed, Executive shall be eligible
to participate in any applicable equity compensation program of the Company in
effect from time to time on the terms set forth by the Compensation Committee in
its sole discretion.
  5. Termination and Compensation
Thereon.
  (a) Termination
Date.  The term “Termination
Date” shall mean the earlier of (i) Executive’s date of death and (ii)
date on which Executive incurs a Separation from  Service (as defined
below) with the Company and its subsidiaries and affiliates for any
reason.
  (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 natural person, trust, corporation, limited liability company, limited or
general partnership, or any other entity (each a “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) the entire remaining
unpaid balance of the Retirement Compensation as provided in Section 5(g)
below, determined as of the Termination Date and (B) a lump-sum payment amount
equal to the Salary that would have been due to Executive had this Agreement
been in effect from the date of his death until the Expiration
Date.
  (ii) Upon
Executive’s death at any time 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 one (1) million dollars in accordance with the Death
Benefit Agreement attached as Exhibit A
hereto.
  (iii) Upon
Executive’s death, 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 amount equal to (A) any accrued and unpaid Salary and
benefits through the date of death, and (B) any bonuses declared to be payable
to Executive for any fiscal periods of the Company ending prior to the date of
death.
  (iv) Following
Executive’s death, his eligible dependents shall be entitled to continuation of
medical, dental and health benefits for two (2) years in accordance with
Section 4(d) hereof.
  (v) In
addition, upon Executive’s death, any stock options or restricted stock awards
(“Equity
Awards”) granted to Executive that would not vest on or prior to the
Termination Date shall vest and, if applicable, be exercisable immediately and,
notwithstanding any termination of employment provisions set forth in the
applicable agreement or related plan, such Equity Awards shall continue to be
exercisable until their original stated expiration date.
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   (c) Incapacity.  If,
in the reasonable judgment of the Compensation Committee, as a result of
Executive’s Incapacity due to a medically determinable physical or mental
illness, Executive shall have been absent from his full-time duties as described
hereunder for the entire period of twenty-nine (29) consecutive months (“Incapacity”),
Executive’s employment shall terminate at the end of the twenty-nine (29)-month
period as provided in this Section 5(c).  In such
event:
  (i) the
Company shall give prompt notice to Executive of any such
termination;
  (ii) within
thirty (30) days following the Termination Date, the Company shall pay to
Executive a lump-sum amount equal to the Salary and Automobile Allowance (at the
rate in effect on the Termination Date) that he would have received had he
remained employed during the period from the Termination Date until the
Expiration Date;
  (iii) the
Company shall provide Executive and his eligible dependents with continuation of
medical, dental and health benefits for two (2) years in accordance with
Section 4(d) hereof;
  (iv) the
Company shall pay to Executive the entire remaining unpaid balance of the
Retirement Compensation as provided in Section 5(g) below, determined as of
the Termination Date;
  (v) the
Company shall pay to Executive within thirty (30) days after the Termination
Date (A) any accrued and unpaid Salary and benefits through the Termination Date
and (B) any bonuses declared to be payable to Executive for any fiscal periods
of the Company ending prior to the Termination Date; and
  (vi) upon a
termination due to Incapacity, all Equity Awards granted to Executive that would
not vest on or prior to the Termination Date shall vest and, if applicable, be
exercisable immediately and, notwithstanding any termination of employment
provisions set forth in the applicable agreement or related plan, such Equity
Awards shall continue to be exercisable until their original stated expiration
date.
  Any dispute between the Compensation
Committee and Executive with respect to Executive's Incapacity shall be settled
by reference to a competent medical authority mutually agreed to by the
Compensation Committee and Executive or his personal representative, whose
decision shall be binding on all parties.
  (d) Termination by the Company
or Executive.
  (i) Termination by the Company
for Cause.  The Company may, at any time, terminate Executive’s
employment hereunder for “Cause.”  Upon a termination for Cause, the
Company shall have no further obligations to Executive hereunder, except for
payment of any accrued and unpaid Salary and benefits through the Termination
Date.  For purposes of this Agreement, “Cause”
shall mean any of the following:
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   (A) the
willful and continued (after a reasonable period following such demand) failure
by Executive to substantially perform his duties hereunder (other than (1) any
such willful or continued failure resulting from his Incapacity due to physical
or mental illness or physical injury or (2) any such actual or anticipated
failure after the issuance of a notice of termination by Executive for Good
Reason (as defined below)), after written demand for substantial performance is
delivered by the Company to Executive that specifically identifies the manner in
which the Company believes Executive has not substantially performed his
duties;
  (B) the
willful engaging by Executive in misconduct which is materially injurious to the
Company, monetarily or otherwise; or
  (C) the
conviction of Executive of a felony by a court of competent jurisdiction in a
judgment which has become final and nonappealable if such conviction would
render it impossible for Executive to perform his obligations hereunder or if
the reputation of the Company would be materially damaged by the continuance of
Executive’s employment hereunder.
  For purposes of this
Section 5(d)(i) no act, or failure to act, on the part of Executive shall
be considered “willful” unless done or omitted to be done by him in bad faith
and without reasonable belief that his action or omission was in the best
interest of the Company.  If Executive’s employment is terminated by
the Company for Cause pursuant to this Section 5(d)(i), the Company shall
have no further obligations to Executive hereunder after the Termination Date,
except for the payment of any unpaid Salary and benefits accrued through the
Termination Date.
  (ii) Termination without Cause or
for Good Reason other than Contemporaneously with a Change of
Control.
  (A) The
Company may, at any time, terminate Executive’s employment hereunder without
Cause and Executive may terminate Executive’s employment hereunder with “Good
Reason” (as defined below).
  (B) If
Executive’s employment is terminated by the Company without Cause or by
Executive with Good Reason other than contemporaneously with a Change of Control
(as defined below), then, on the Termination Date, Executive shall receive
payment of:
  (1) any
accrued and unpaid Salary through the Termination Date;
  (2) any
bonuses declared to be payable to Executive for any fiscal periods of the
Company ending prior to the Termination Date;
  (3) a lump-sum
amount equal to his Salary that Executive would have received had he remained
employed during the period from the Termination Date through the Expiration
Date;
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   (4) the entire
remaining unpaid balance of the Retirement Compensation pursuant to
Section 5(g) hereof, determined as of the
 Expiration Date;
and
  (5) the
Severance Payment pursuant to Section 5(f)(i) hereof.
 (C) In
addition, upon a termination without Cause or for Good Reason other than
contemporaneously with a Change of Control, any Equity Awards granted to
Executive that would not vest on or prior to the Termination Date shall vest
and, if applicable, be exercisable immediately and, notwithstanding any
termination of employment provisions set forth in the applicable agreement or
related plan, such Equity Awards shall continue to be exercisable until their
original stated expiration date.
  (iii) Termination by Executive
without Good Reason.  Executive may terminate his employment
hereunder without Good Reason.  If Executive’s employment is
terminated by Executive without Good Reason, then, on the Termination Date,
Executive shall receive payment of (A) any accrued and unpaid Salary through the
Termination Date, (B) any bonuses declared to be payable to Executive for any
fiscal periods of the Company ending prior to the Termination Date, (C) the
entire remaining unpaid balance of the Retirement Compensation pursuant to
Section 5(g) hereof, determined as of the Termination Date; and (D) the
Severance Payment pursuant to Section 5(f)(ii) hereof.
  (e) Change of
Control.
  (i) If a
“Change of Control” (as defined in Section 5(e)(iii)) of the Company
occurs, the Company will be obligated as provided in this
Section 5(e).  For purposes of determining the Company’s
obligations under this Section 5(e), the date on which a Change of Control
occurs shall be referred to as the “Change of Control
Date.”  If a Change of Control occurs during the Employment
Term, the Company or its successor in interest shall:
  (A) pay to
Executive, the amount of any Gross-Up Payment payable by the Company to
Executive under Section 5(h) hereof in accordance with the payment terms
therein;
  (B) provide
that any Equity Awards granted to Executive that would not vest on or prior to
the Change of Control Date shall vest and, if applicable, be exercisable upon
the earlier of (x) the Change of Control Date and (y) the execution of an
agreement, if any, that would constitute a Change of Control (regardless of
whether such agreement is consummated), and, notwithstanding any termination of
employment provisions set forth in the applicable agreement or related plan,
such Equity Awards shall continue to be exercisable until their original stated
expiration date.
  (ii) Termination Contemporaneouslywith a Change
of Control.  If Executive’s employment is terminated for any
reason contemporaneously with a Change of Control, the Company shall pay to
Executive (i) on the Termination Date a lump-sum amount equal to (A) any accrued
and unpaid Salary and benefits through the Termination Date and (B) any bonuses
payable to Executive for any fiscal periods of the Company ending prior to the
Termination Date, (ii) the entire remaining unpaid balance of the Retirement
Compensation, as provided in Section 5(g) below determined as of the
Termination Date; and (iii) the Severance Payment pursuant to
Section 5(f)(i) hereof.
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   (iii) For
purposes of this provision, a “Change of
Control” means:
  (A) Individuals
who, as of January 1, 2005 (the “Effective
Date”) constitute the Board (the “Incumbent
Board”) cease for any reason to constitute at least a majority of the
Board, provided
that any Person becoming a director subsequent to the Effective Date whose
election, or nomination for election by the Company’s shareholders, was approved
by a vote of at least a majority of the directors then comprising the Incumbent
Board (other than an election or nomination of an individual whose initial
assumption of office is in connection with an actual or threatened election
contest relating to the election of the directors of the Company, as such terms
are used in Rule 14a-11 of Regulation 14A promulgated under the Securities
Exchange Act) shall be, for purposes of this Agreement, considered as though
such Person were a member of the Incumbent Board;
  (B) a
transaction or other event occurs such that any Person or Persons acting as a
group acquires ownership of stock of the Company that, together with stock held
by such Person or group, constitutes more than 50% of the total fair market
value or total voting power of the stock of the Company;
  (C) a
transaction or other event occurs such that any one Person or group acquires (or
has acquired during the twelve (12)-month period ending on the date of the most
recent acquisition by such Person or group) ownership of stock of the Company
possessing 35% or more of the total voting power of the stock of the Company;
or
  (D) a
transaction or other event occurs such that any one Person or group acquires (or
has acquired during the twelve (12)-month period ending on the date of the most
recent acquisition by such Person or group)ownership
of assets of the Company that have a total gross fair market value equal to or
more than 40% of the total gross fair market value of all of the assets of the
Company immediately prior to such acquisition or acquisitions; provided, however, that no
acquisition of ownership of the assets of the Company shall be deemed a Change
of Control if the acquiring Person or group is:
  (1)           A
shareholder of the Company in exchange for or with respect to
 its
stock;
 
 (2)           Any
Majority Owned Entity, as defined below, of the Company;
 
 (3)           A
Person or group of which the Company is a Majority Owned Entity; or
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 (4)           A
Majority Owned Entity of any Person or group described by (3),
above.
 
 (iv) For the
purposes of this Section 5(e), Persons will not be considered to be acting
as a group solely because they purchase or own stock of the same corporation at
the same time, or as the result of the same public offering.  However,
Persons will be considered to be acting as a group if they are owners of a
Person that enters into a merger, consolidation, purchase or acquisition of
stock or assets or similar business transaction with the Company.
  (v) For the
purposes of this Section 5(e), a “Majority Owned
Entity” of any Person is any entity, 50% or more of the total value or
voting power of which is owned, directly or indirectly, by such
Person.
  (vi) A Change
of Control shall occur on the effective date of any event specified in
Section 5(e)(iii) above.  In connection with any determination of
ownership for purposes of Section 5(e)(iii) above, the attribution rules of
Section 318(a) of the Code shall apply.
  (vii) For
purposes of this Agreement, a termination will be deemed to be made
“contemporaneously” with a Change of Control if (A) it is made pursuant to
at least one hundred and twenty (120) days’ prior written notice from the
Company to Executive, and (B) it is effective as of the Change of Control
Date.
  (viii) For
purposes of this Agreement, “Good
Reason” means:
  (A) a decrease
in Executive’s Salary or a failure by the Company to pay material compensation
due and payable to Executive in connection with his employment;
  (B) a change
in Executive’s responsibilities, positions,
duties, status, title or reporting relationships;
  (C) Executive
ceasing to be the Senior Vice President of Administration and Chief Financial
Officer of a publicly traded company pursuant to this Agreement (or such other
positions Executive holds (1) immediately prior to the Change of Control Date,
if applicable, or (2), solely for purposes of Section 5(d), thirty (30)
days prior to the Termination Date);
  (D) the
Company’s requiring Executive to be based at any office or location that is
anywhere other than Executive’s principal place of employment (1) immediately
prior to the Change of Control Date, if applicable, or (2), solely for purposes
of Section 5(d), thirty (30) days prior to the Termination Date;
or
  (E) a material
breach by the Company of any term or provisions of this Agreement;
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   provided that
Executive has given notice thereof to the Company and the Company has not cured
the Good Reason within thirty (30) days after receiving such
notice.
  (f) Severance
Payment.  Executive is eligible to receive a Severance Payment
(the “Severance
Payment”) within thirty (30) days following the Termination Date as
follows:
  (i) If
Executive’s employment hereunder is terminated at any time (A) by the Company
without Cause, (B) by Executive for Good Reason, or (C) contemporaneously with a
Change of Control, then on the Termination Date, the Company shall pay to
Executive a lump-sum amount equal to two (2) times the Salary (at the rate in
effect as of the Termination Date), which lump-sum shall not be
pro-rated.
  (ii) If
Executive’s employment hereunder is terminated by Executive without Good Reason,
then on the Termination Date, the Company shall pay to Executive a lump-sum
amount equal to one (1) times the Salary (at the rate in effect as of the
Termination Date), which lump-sum shall not be pro-rated.  For the
avoidance of doubt, the Severance Payment pursuant to this Section 5(f)(ii)
shall be payable upon Executive’s retirement in accordance with Company
policy.
  (g) Retirement
Compensation.
  (i) 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 (1/2) 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 May 1, 1993 (the “Retirement
Compensation”) exceeds (B) the sum of any amounts previously distributed
to Executive pursuant to Sections 5(g)(ii), 5(g)(iii) and
5(g)(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.  The payment will be made to Executive within five (5)
business days following the Termination Date.
  (ii) Within
five (5) business days after the date on which the BE Aerospace, Inc. Executive
Compensation Trust II dated April 21, 1999, as amended, is terminated (the
“Distribution
Date”), the Company will distribute in a lump-sum the amount of
Retirement Compensation that would have been payable to Executive under
Section 5(g)(i) as of the Distribution Date.
  (iii) Within
ninety (90) business days following the Distribution Date, the Company shall
establish a trust for the duration of the Employment Term, and, commencing on
the Distribution Date and on a quarterly basis, thereafter (each a “Contribution
Date”) the Company shall contribute to the trust (the “Retirement
Trust”) for the benefit of Executive an amount equal to (A) the
Retirement Compensation that would be payable to Executive under
Section 5(g)(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 Executive may withdraw from the Retirement Trust,
within the thirty (30)-dayperiod beginning on the
date on which he receives notice from the Company that the Company has made a
contribution pursuant to this Section 5(g)(iii), an amount up to but not to
exceed the amount of that contribution.  If and to the extent that
Executive fails to exercise this withdrawal right within the thirty (30)-day
period, such withdrawal right shall lapse.  The Retirement Trust also
shall contain such other provisions as the Company and Executive reasonably
agree are necessary in order for the Retirement Trust to qualify as a grantor
trust under Section 671 of the Code with 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(g)(iii), shall
be payable to 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.
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   (iv) Executive
shall be responsible for all applicable Federal, State and local income and
employment taxes due with respect to each contribution made by the Company under
Section 5(g)(ii).  As of the last day of each calendar quarter
ending on or after the Distribution 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.
  (h) 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, benefit, equity-based or other
compensation or other transfer or action by the Company to or for the benefit of
Executive (whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise and including, without limitation, any
additional payments required under this Section 5(h)) (a “Payment”)
would be subject to an excise tax imposed by Section 4999 of the Code, or
any interest or penalties are incurred by 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 Executive (a “Gross-Up
Payment”) in an amount such that after payment by Executive of all taxes
(including any Excise Tax) imposed upon the Gross-Up Payment, 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 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, Executive shall be deemed to (i)
pay federal income taxes 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.  The Gross-Up Payment
shall be paid to Executive no later than the end of the taxable year next
following the taxable year in which Executive remits the taxes related to the
Gross-Up Payment.
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   (ii) Subject to
the provisions of paragraph (iii) of this Section 5(h) all determinations
required to be made under this Section 5(h), 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 Executive within fifteen (15) days of the receipt of notice from
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, 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(h), shall be paid by the Company to Executive promptly following
the receipt of the Accounting Firm’s determination but in no event later than
the end of the taxable year next following the taxable year in which the
Accounting Firm’s determination is received.  If the Accounting Firm
determines that no Excise Tax is payable by Executive, it shall furnish
Executive with a written opinion that failure to report the Excise Tax on
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
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(h)
and 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 Executive but in no event later than the end of the taxable year next
following the taxable year in which Executive remits the taxes.  The
previous sentence shall apply mutatis mutandis to any
overpayment of the Gross-Up Payment.
  (iii) 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) daysafter 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.  Executive shall not pay such claim prior to the expiration of
the thirty (30)-dayperiod following the
date on which 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 Executive in writing prior to the
expiration of such period that it desires to contest such claim, 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 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(h)(iii), the Company shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue or forgo 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 Executive to pay the tax claimed and sue for a refund or contest the
claim in any permissible manner, and 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 Executive to pay such claim and sue for a refund, to the extent
permitted by law, the Company shall advance the amount of such payment to
Executive, on an interest-free basis and shall indemnify and hold 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 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 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 Executive of an amount advanced by the Company pursuant to
Section 5(h)(iii), Executive becomes entitled to receive any refund with
respect to such claim, Executive shall (subject to the Company’s complying with
the requirements of Section 5(h)(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 Executive of an
amount advanced by the Company pursuant to Section 5(h)(iii), a
determination is made that Executive shall not be entitled to any refund with
respect to such claim and the Company does not notify 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.
  (i) Restricted Stock
Award.  On July 31, 2006, the Company granted to Executive,
without payment by Executive, 104,242 shares of restricted common stock of the
Company (the “Restricted
Stock”).  The Restricted Stock was granted pursuant to and on
the terms provided in the Company’s 2005 Long-Term Incentive Plan, as amended
(the “Plan”),
and, to the extent not inconsistent with the terms hereof, the applicable
Restricted Stock Award Document (as defined in the Plan).  The
Restricted Stock granted to Executive pursuant to this Section 5(i) will
vest and become unrestricted ratably over a four (4)-year period commencing on
July 31, 2007, the first (1st)
anniversary of the grant date, and on each anniversary thereafter, provided that
Executive is employed by the Company on each vesting date.  In
addition, the Restricted Stock will immediately become fully vested and
unrestricted (i) immediately prior to a Change of Control, (ii) upon Executive’s
termination due to death or Incapacity, (iii) upon the termination of
Executive’s employment by the Company without Cause, or (iv) upon the
termination by Executive with Good Reason.  For the avoidance of
doubt, all vesting of the Restricted Stock pursuant to this Section 5(i)
shall be subject to the provisions of Sections 5(h) and 12 of this
Agreement.
  (j) Grantor
Trust.  If, at any time during the Employment Term it appears
that a Change of Control is likely to occur, the Company hereby agrees to
establish a grantor trust pursuant to Rev. Proc. 92-64, promulgated under
Subpart E, part I, subchapter J, chapter I, subtitle A of the Code, as modified
by Notice 2000-56.  The grantor trust shall serve as a vehicle for
accumulating assets to secure its potential obligations to 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 in the event of insolvency or bankruptcy.
  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 (3) 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):
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   If to the
Company, to it at:
  BE
Aerospace, Inc.
 1400
Corporate Center Way
 Wellington,
FL  33414
 Attention:  General
Counsel
 
 If to
Executive, to him at:
 
 Thomas P.
McCaffrey
 4821 South
Flagler Drive
 West Palm
Beach, FL  33405
 
 8. Entire
Agreement.  This Agreement (including the Exhibits attached
hereto) constitutes 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 between Executive
and the Company attached as Exhibit B which is
incorporated herein by reference.
  9. Withholding.  Without
limiting the effect of Sections 5(h) and 12, all payments made by the Company
under this Agreement shall be reduced by any amounts in respect of income,
social security, FICA and other similar taxes at the then-prevailing rates
required to be withheld by the Company under applicable law.
  10. 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 for a period of up to twenty (20)
years.  Such costs and expenses shall be advanced to Executive
currently as reasonably required to continue such action or
proceeding.
  11. Unfunded
Status.  This Agreement is intended to constitute an unfunded
plan for incentive compensation.  Except with respect to the
Retirement Compensation, nothing contained herein shall give Executive any
rights that are greater than those of a general unsecured creditor of the
Company.  In its sole discretion, the Compensation Committee may
authorize the creation of trusts, acquisition of life insurance policies or
other arrangements to meet the obligations created under this
Agreement.
  12. Section 409A.
  (a) If any
amounts that become due under Section 5 (other than Section 5(h)) of
this Agreement constitute “nonqualified deferred compensation” within the
meaning of Section 409A of the Code, payment of such amounts shall not
commence until Executive incurs a “Separation from Service” (as defined below)
if and only if necessary to avoid accelerated taxation or tax penalties in
respect of such amounts.  For the avoidance of doubt, the parties
agree and acknowledge that the Retirement Compensation is not “nonqualified
deferred compensation” within the meaning of Section 409A.
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   (b) Notwithstanding
any provision of this Agreement to the contrary, if Executive is a “Specified
Employee” (as defined below) he shall not be entitled to any payments upon a
Separation from Service until the earlier of (i) the date which is the first
(1st)
business day following the date that is six (6) months after Executive’s
Separation from Service for any reason other than death or (ii) Executive’s date
of death.  The Company shall establish a grantor trust pursuant to
Rev. Proc. 92-64, promulgated under subpart E, part I, subchapter J, chapter 1,
subtitle A of the Code, as modified by Notice 2000-56, and fund any such
payments that are deferred pursuant to this Section 12.1 that otherwise
would be immediately payable to  Executive.  The provisions
of this Section 12(b) shall only apply if required to comply with
Section 409A of the Code.
  (c) For
purposes of this Agreement, “Separation from
Service” shall have the meaning set forth in
Section 409A(a)(2)(A)(i) of the Code and determined in accordance with the
default rules under Section 409A of the Code.  “Specified
Employee” shall have the meaning set forth in Section 409A
(a)(2)(B)(i) of the Code, as determined in accordance with the uniform
methodology and procedures adopted by the Company and then in
effect.
  (d) It is
intended that the terms and conditions of this Agreement comply with
Section 409A of the Code.  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, this Agreement or any provision hereof may be reformed by Executive,
subject to the consent of the Company (which consent shall not be unreasonably
withheld) to:  (i) comply with, or avoid being subject to,
Section 409A of the Code, (ii) avoid the imposition of taxes, interest and
penalties under Section 409A of the Code, and/or (iii) maintain, to the
maximum extent practicable, the original intent of the applicable provision
without violating the provisions of Section 409A of the Code.
  (e) Anything
in this Agreement to the contrary notwithstanding, no reimbursement payable to
Executive pursuant to any provisions of this Agreement or pursuant to any plan
or arrangement of the Company Group covered by this Agreement shall be paid
later than the last day of the calendar year following the calendar year in
which the related expense was incurred, except to the extent that the right to
reimbursement does not provide for a “deferral of compensation” within the
meaning of Section 409A of the Code.  No amount reimbursed during
any calendar year shall affect the amounts eligible for reimbursement in any
other calendar year.
  (f) The
provisions of Section 5(h) of this Agreement, mutatis mutandis, shall apply
to any imposition of taxes on Executive under said Section 409A of the Code
so that Executive shall be fully grossed up for the amount of, and shall not be
adversely affected by, such taxes.
  13. Miscellaneous.
  (a) Enforceability.  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 headings in this Agreement are for convenience of
reference only and shall not alter or otherwise affect the meaning
hereof.  This Agreement may be executed in any number of counterparts
which together shall constitute one instrument and shall be governed by and
construed in accordance with the laws (other than the conflict of laws rules) of
the State of Florida.
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  EXECUTION COPY
   (b) Assignment.  This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, legal representatives, successors and permitted
assigns.  This Agreement may be assigned by the
Company.  Executive may not assign or delegate Executive’s duties
under this Agreement without the Company’s prior written approval.
  (c) Waiver.  Executive’s
or the Company’s failure to insist upon strict compliance with any provision
hereof or any other provision of this Agreement or the failure to assert any
right that Executive or the Company may have hereunder, including, without
limitation, the right of Executive to terminate employment for Good Reason
pursuant to Section 5(d)(ii) of this Agreement, 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.
  (d) Survival.  The
provisions of Sections 4, 5, 6 and 7 through 13 inclusive hereof shall each
survive any termination or expiration of this Agreement.
  [Signature
Page Follows]
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   IN WITNESS
WHEREOF, the parties hereto execute this Agreement as of the date first written
above.
  EXECUTIVE/s/
      Thomas
      P. McCaffreyThomas
      P. McCaffreyBE
      AEROSPACE, INC.By:
                                                                    /s/
      Amin J. KhouryName:
                                                                    Amin
      J. KhouryTitle:
                                                                    Chairman
      and Chief Executive
Officer






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Exhibit
A


Death
Benefit Agreement
   A-1




EXECUTION COPY
   Exhibit
B
  Proprietary
Rights Agreement
    B-1