a5823424ex10-7.htm


    Exhibit
10.5

     

     

    BE
AEROSPACE, INC. 2005 LONG-TERM INCENTIVE PLAN

     

    RESTRICTED
STOCK AWARD AGREEMENT

     

    THIS AWARD
AGREEMENT (the “Award
Agreement”) is made effective as of August 5, 2008 (the “Date of
Grant”) between BE Aerospace, Inc., a Delaware corporation (the “Company”),
and Robert A. Marchetti (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 75,000 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 December 31, 2010 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.  On December 31, 2010 the Performance-Based Restricted
Stock will vest and no longer be subject to cancellation pursuant to
Section 4 or the transfer restrictions set forth in Section 7 provided
that the Company achieves the two-year cumulative Operating Earnings target (the
“Performance
Target”) for the period from October 1, 2008 thorough September 30, 2010
(the “Performance
Period”).  The Performance Target shall be established by the
Committee in writing no later than 90 days after the commencement of the
Performance Period for purposes of Section 162(m) the Internal Revenue Code of
1986, as amended (the “Code”).

     

    4. Termination of
Employment.  In
the event of the Participant’s termination of employment with the Company prior
to the vesting of all shares of Restricted Stock hereunder for any reason
other than death or Disability, all unvested shares of Restricted Stock
shall be cancelled immediately without consideration as of the date of such
termination.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    5. Death or
Disability.  If,
prior to the vesting of all shares of Restricted Stock hereunder, the
Participant’s employment with the Company terminates due to death or Disability,
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.

     

    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:

     

    
      
        
        

      

      
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    (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. 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.

     

    
      
        
        

      

      
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    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.

     

    
      
        
        

      

      
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    (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:
      Amin Khoury

                  
	 
      	
                    Title:
      Chairman of the Board

                  


          

        

      

       

    

    
      
        
        

      

      
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    ELECTION
UNDER SECTION 83(b)

     

    OF
THE INTERNAL REVENUE CODE OF 1986

     

    The
undersigned taxpayer hereby elects, pursuant to Section 83(b) of the
Internal Revenue Code of 1986, as amended, to include in gross income for 2006
the amount of any compensation taxable in connection with the taxpayer’s receipt
of the property described below:

     

    1. The name,
address, taxpayer identification number and taxable year of the undersigned
are:

     

    
      	
              TAXPAYER’S
      NAME:

            	 
      
	
              SPOUSE’S
      NAME:

            	 
      
	
              TAXPAYER’S
      SOCIAL SECURITY NO.:

            	 
      
	
              SPOUSE’S
      SOCIAL SECURITY NO.:

            	 
      
	
              TAXABLE
      YEAR:

            	 
      
	
              ADDRESS:

            	 
      
	 
      	 
      
	 
      	 
      


    

    


    2. The
property which is the subject of this election is shares of Common Stock of
BE Aerospace, Inc.

     

    3. The
property was transferred to the undersigned on

     

    4. The
property is subject to the following restrictions:  The shares of
Common Stock are subject to cancellation if unvested as of the date of
termination of service other than for death or disability and are
nontransferable until vested.

     

    5. The fair
market value of the property at the time of transfer (determined without regard
to any restriction other than a restriction which by its terms will never lapse)
is: $ per share x ________ shares = $ _________.

     

    6. The
undersigned paid $ per share x ________ shares for the property transferred
or a total of $

     

    The
undersigned has submitted a copy of this statement to the person for whom the
services were performed in connection with the undersigned’s receipt of the
above-described property.  The undersigned taxpayer is the person
performing the services in connection with the transfer of said
property.

     

    
      
        
        

      

      
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    The
undersigned will file this election with the Internal Revenue Service office to
which he files his annual income tax return not later than 30 days after
the date of transfer of the property.  A copy of the election also
will be furnished to the person for whom the services were performed.
Additionally, the undersigned will include a copy of the election with his
income tax return for the taxable year in which the property is transferred. The
undersigned understands that this election will also be effective as an election
under ___________ law.

     

    
      	
              Dated:______________________________________________

            	 
      	 
      
	 
      	 
      	
              Taxpayer

            
	
              The
      undersigned spouse of taxpayer joins in this election.

            
	 
      	 
      	 
      
	
              Dated:______________________________________________

            	 
      	 
      
	 
      	 
      	
              Spouse
      of Taxpayer

            


    

    


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