a5903959_ex1011.htm


    EXHIBIT 10.11

     

    AMENDED AND RESTATED
EMPLOYMENT AGREEMENT

    


    


    This Amended and Restated Employment
Agreement (this "Agreement")
is made as of this 9th day of
December, 2008, by and between BE Aerospace, Inc., a Delaware corporation (the
"Company")
and Wayne Exton (the "Employee").

    


    RECITALS

    


    WHEREAS, the Company wishes to employ
the Employee and the Employee wishes to accept such employment on the terms and
conditions hereafter set forth; and

    


    WHEREAS, the Company wishes to make
secure for itself the experience, abilities and services of the Employee and to
prevent the loss of such experience, services and abilities; and

    


    WHEREAS, the Employee has successfully
completed drug/substance abuse testing, and the Company has received the results
of such testing;

    


    NOW THEREFORE, for good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
parties hereto, each intending to be legally bound, do hereby agree as
follows:

    


    l.  Employment.  The
Company shall employ the Employee, and the Employee shall perform services for
and continue in the employment of the Company, for an initial period of one (1)
year commencing on May 1, 2006, and ending on April 30, 2007, whereupon the
Employee’s employment hereunder shall automatically be extended from year to
year for additional one (1)-year periods on and after May 1, 2007, until either
the Company or the Employee gives the other party at least thirty (30) days
written notice prior to the then-applicable "Expiration Date" (as
hereinafter defined) of its or his desire to terminate this Agreement, unless
the Employee’s employment is terminated earlier pursuant to this Agreement as
hereinafter set forth.  For purposes of this Agreement (i) the term
"Employment
Period" shall mean the initial one (1) year period and all extensions
thereof, if any, as aforesaid, and (ii) the term "Expiration
Date" shall mean April 30 of either calendar year 2007 or any subsequent
calendar year if the Employment Period is extended on and after April
30,  2007.

    


    2.  Position and
Duties.  The Employee shall serve the Company in the capacity
of Group Vice President and General Manager, Business Jet Segment and, shall be
accountable to, and shall have such other powers, duties and responsibilities,
consistent with this capacity, as may from time to time be prescribed by the
President and Chief Operating Officer of the Company, or his
designee.  The Employee shall perform and discharge, faithfully,
diligently and to the best of his ability, such powers, duties and
responsibilities.  The Employee shall devote all of his working time
and efforts to the business and affairs of the Company.

    


    3.  Compensation.

    


    (a)  Salary.  During
the Employment Period, the Employee shall receive a salary (the "Salary")
payable at the rate of $335,010 per annum.  Such rate may be adjusted
from time to time by the President and Chief Operating Officer provided, however, that it
shall at no time be adjusted below the Salary then in effect.  The
Salary shall be payable biweekly or in accordance with the Company’s current
payroll practices, less all required deductions.  The Salary shall be
pro-rated for any period of service less than a full year.

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

       

    

    (b)  Incentive
Bonus.  During the Employment Period, the Employee may receive
an incentive bonus in accordance with the Company's executive bonus plan then in
effect, as determined by the Company in its sole discretion.  The
incentive bonus shall be paid in accordance with Company policy but in no event
later than March 15th of the
year following the year in which it is earned.

    


    (c)  Expenses.  During
the Employment Period, the Employee shall be entitled to receive prompt
reimbursement for all reasonable business expenses incurred by him on behalf of
the Company in accordance with the Company’s policies in effect from time to
time.

    


    (d)  Benefits.  During
the Employment Period, the Employee shall be entitled to participate in or
receive benefits under any life or disability insurance, health, pension,
retirement, accident and other employee benefit plans, programs or arrangements
made generally available by the Company to its employees, subject to and on a
basis consistent with the terms, conditions and overall administration of such
plans and arrangements in effect from time to time.  In accordance
with the Company's policies in effect from time to time, the Employee shall also
be entitled to paid vacation in any fiscal year during the Employment Period as
well as all paid holidays given by the Company to its employees.

    


    (e)  Automobile.  During
the Employment Period, the Employee shall receive an automobile allowance of
$1,100 per month, payable in accordance with Company policy but in no event
later than March 15th of the
year following the year in which it shall accrue.

    


    4.  Termination and Compensation
Thereon.  

    


    (a)  Termination
Date.  Subject to the terms and conditions of this Agreement,
the Employee’s employment pursuant to this Agreement may be terminated either by
the Employee or the Company at any time and for any reason.  The term
"Termination
Date" shall mean (i) if the Employee’s employment is terminated (x) by
his death, the date of his death, or (y) for any other reason, the date on which
the Employee incurs a Separation from Service.

    


    (b)  Death.  The
Employee’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 person as the Employee 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 the Salary (at the rate in effect as of the
Termination Date) payable during the period from the Termination Date through
the Expiration Date.

    


    (c)   Incapacity.  If,
in the reasonable judgment of the President and Chief Operating Officer, as a
result of the Employee’s incapacity due to physical or mental illness, the
Employee shall have been absent from his full-time duties as described hereunder
for the entire period of six (6) consecutive months ("Incapacity"),
the Employee’s employment shall terminate at the end of the six (6)-month
period.  In such event, upon the Termination Date, the Company shall
pay to the Employee a lump sum payment equal to the Salary (at the rate in
effect as of the Termination Date) payable during the period from the
Termination Date through the Expiration Date.  The lump sum payment
shall be made within sixty (60) days following the Termination Date, provided that prior
to the payment date the Employee signs a waiver and release agreement in the
form provided by the Company and such waiver and release becomes effective and
irrevocable in its entirety prior to such date.  If the waiver and
release does not become effective and irrevocable on or prior to the payment
date set forth in the preceding sentence, the Company shall have no further
obligations pursuant to Sections 4(c) or 4(g).  The Company’s
obligation to pay the Employee his Salary and benefits (to the extent not
previously paid) shall terminate if the Employee subsequently takes other
employment to the extent of the Employee’s salary and benefits from such
subsequent employment.  Any dispute between the President and Chief
Operating Officer and the Employee with respect to the Employee’s Incapacity
shall be settled by reference to a competent medical authority mutually agreed
to by the President and Chief Operating Officer and the Employee, whose decision
shall be binding on all parties.

     

    
      
        
        

      

      
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    (d)   Termination by the Company
for Cause; Resignation by the Employee.   

    


    (i)   If the Employee’s
employment is terminated by the Company for Cause or the Employee resigns his
employment for any reason (other than pursuant to Section 4(f)), the Company
shall have no further obligations to the Employee hereunder after the
Termination Date, except for unpaid Salary and benefits accrued through the
Termination Date.

    


    (ii)   For purposes of
this Agreement, "Cause"
shall mean (i) the Employee’s material failure, refusal or neglect to perform
and discharge his powers, duties and responsibilities hereunder (including
duties prescribed by the President and Chief Operating Officer pursuant to
Section 2), other material breach of the terms hereof, or breach of any
fiduciary duties he may have because of any position he holds with the Company
or any subsidiary or affiliate thereof or (ii) a felony conviction or a
conviction for any crime involving the Employee’s personal dishonesty or moral
turpitude.

    


    (e)   Termination Without
Cause.  The Company may terminate the Employee’s employment
hereunder at any time without Cause.  In such event, the Company shall
pay to the Employee a lump sum payment equal to one (1) year’s salary at the
rate in effect on the Termination Date; provided, however, that if,
during the one (1)-year period following his termination of employment, the
Employee accepts employment elsewhere, the amount of the lump sum payment will
be reduced by an amount equal to his Salary divided by the number of days
between the Termination Date and the date on which the Employee commences
subsequent employment.  The lump sum payment shall be made within
sixty (60) days following the Termination Date, provided that prior
to the payment date the Employee signs a waiver and release agreement in the
form provided by the Company and such waiver and release becomes effective and
irrevocable in its entirety prior to such date.  If the waiver and
release does not become effective and irrevocable on or prior to the payment
date set forth in the preceding sentence, the Company shall have no further
obligations pursuant to Sections 4(e) or 4(g).  

     

    
      
        
        

      

      
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    (f)   Change of
Control.  

    


    (i)   If
a "Change of Control" occurs during the Employment Period and, following or in connection
with such Change of Control, this Agreement or the Employee’s employment is
terminated for any reason (other than Cause), or the Employee resigns his
employment because the Employee’s title and duties under Section 2 above are
materially reduced without his agreement, or any compensation or benefit payable
or otherwise extended to the Employee hereunder (including without limitation
Salary, incentive bonus and benefits set forth in Section 3 above) is eliminated
or materially reduced, the Company or its successor in interest shall give
prompt notice to the Employee of any such  elimination or reduction
and pay to the Employee a lump sum amount equal to:

    


    (x) the Employee’s Salary (at the rate
in effect as of the Termination Date), payable during the period from the
Termination Date through the Expiration Date; and

    


    (y) the Salary (at the rate in effect
as of the date of the Change of Control).

    


    The lump sum payment shall be made
within thirty (30) days following the Termination Date.

    


    (ii)   For purposes of
this Agreement, a "Change of
Control" shall mean a "change in control event" within the meaning of the
default rules under Section 409A of the U.S. Internal Revenue Code of 1986, as
amended, and the regulations and guidance promulgated thereunder ("Section
409A").  The obligations of the Company pursuant to this
Section 4(f) shall survive any termination of this Agreement or the Employee’s
employment or any resignation of such employment by the Employee pursuant to
this Section 4(f).

    


    (g)   Benefit
Continuation.  If the Employee's employment is terminated
pursuant to Sections 4(c), 4(e) or 4(f), the Company shall provide the Employee
and his eligible dependents with continued participation in medical, dental and
health benefit plans available to the Company’s executive officers on similar
terms and conditions as active executives, from the Termination Date until the
earlier of (i) the Expiration Date and (ii) the date the Employee becomes
eligible for comparable benefits provided by a third party; provided, however, that the
continuation of such benefits shall be subject to the respective terms of the
applicable plan, in effect from time to time, and the timely payment by the
Employee of his applicable share of the applicable premiums in effect from time
to time.  To the extent that reimbursable medical and dental care
expenses constitute deferred compensation for purposes of Section 409A, the
Company shall reimburse the 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. 

    


    5.   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.

    


    6.   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 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.

    1455 Fairchild Road

    Winston-Salem,
NC  27105

    Attention: President and Chief
Operating Officer

    


    with a copy to:

    


    BE Aerospace, Inc.

    1400 Corporate Center Way

    Wellington,
FL  33414

    Attention:  General
Counsel

    


    If to the Employee, to him
at:

    


    Becoplage Apartments

    100 Lincoln Road, Apt. 628

    Miami Beach,
FL  33139

    


    7.   Entire
Agreement.  This Agreement 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 dated as of the
date hereof between the Employee and the Company attached as Exhibit A, which is
incorporated herein by reference.

    


    8.   Headings.  The
headings in this Agreement are for convenience of reference only and shall not
alter or otherwise affect the meaning hereof.  

    


    9.  Counterparts.  This
Agreement may be executed in any number of counterparts which together shall
constitute one instrument.

    


    10.  Governing
Law.  This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.  

    


    11.  Withholding.  All
payment made by the Company under this Agreement shall be reduced by any tax or
other amounts required to be withheld by the Company under applicable
law.

    


    12.  Section
409A.  

    


    (a)   If any amounts
that become due under Section 4 of this Agreement constitute "nonqualified
deferred compensation" within the meaning of Section 409A, payment of such
amounts shall not commence until the Employee 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.

     

    
      
        
        

      

      
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    (b)   Notwithstanding
any provision of this Agreement to the contrary, if the Employee 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 the
Employee’s Separation from Service for any reason other than death or (ii) the
Employee’s date of death.  The provisions of this Section 12(b) shall
only apply if required to comply with Section 409A.

    


    (c)   For purposes of
this Agreement, "Separation from
Service" shall have the meaning set forth in Section 409A(a)(2)(A)(i) and
determined in accordance with the default rules under Section
409A.  "Specified
Employee" shall have the meaning set forth in Section 409A(a)(2)(B)(i),
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.  If any provision of this Agreement contravenes any regulations
or Treasury guidance promulgated under Section 409A, or could cause any amounts
or benefits hereunder to be subject to taxes, interest and penalties under
Section 409A, the Company may, in its sole discretion and without the Employee’s
consent, modify the Agreement to:  (i) comply with, or avoid being
subject to, Section 409A, (ii) avoid the imposition of taxes, interest and
penalties under Section 409A, and/or (iii) maintain, to the maximum extent
practicable, the original intent of the applicable provision without
contravening the provisions of Section 409A. This Section 12(d) does not create
an obligation on the part of the Company to modify this Agreement and does not
guarantee that the amounts or benefits owed under this Agreement will not be
subject to interest and penalties under Section 409A.

    


    (e)   Anything in this
Agreement to the contrary notwithstanding, no reimbursement payable to the
Employee 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.  No amount reimbursed during any calendar
year shall affect the amounts eligible for reimbursement in any other calendar
year.

    


    13.  Enforceability;
Waiver.  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 Employee'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 the Employee or the
Company may have hereunder, 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.

    


    14.   Assignment.  This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, successors and permitted assigns.  This
Agreement may be assigned by the Company.  The Employee may not assign
or delegate his duties under this Agreement without the Company’s prior written
approval.

     

    
      
        
        

      

      
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    15.  
Survival.  The entitlement of the Employee and the obligations
of the Company pursuant to Section 4 hereof shall each survive any termination
or expiration of this Agreement, or any termination or resignation of the
Employee’s employment, as the case may be.

    


    
      
        
        

      

      
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    IN WITNESS WHEREOF, the parties hereto
have executed this Agreement as of the date first written above.

    


     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          
                                            
                                              
                                                
                                                  
                                                    
                                                      
                                                        
                                                          
                                                            
                                                              
                                                                
                                                                  
                                                                    
                                                                      
                                                                        
                                                                          
                                                                            
                                                                              
                                                                                
                                                                                  	 
      	EMPLOYEE	 
	 
      	 	 
	 	/s/
      Wayne Exton	 
	
                                                                                           

                                                                                        	Wayne Exton	 
	 
      	 	 
	 
      	 	 
	 
      	BE AEROSPACE, INC.
	 	 	 
	 
      	/s/
      Thomas P. McCaffrey  	 
	 
      	Thomas
      P. McCaffrey
	 	Senior
      Vice President and Chief Financial
Officer


                                                                                

                                                                              

                                                                            

                                                                          

                                                                        

                                                                      

                                                                    

                                                                  

                                                                

                                                              

                                                            

                                                          

                                                        

                                                      

                                                    

                                                  

                                                

                                              

                                            

                                          

                                        

                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

         

      

    

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Exhibit
A

     

    Proprietary
Rights Agreement