Exhibit 4.7
BE AEROSPACE, INC. 2005 LONG-TERM
INCENTIVE PLAN
(Amended and Restated as of July
30, 2009)
1. Purposes
of the Plan
The purposes of the Plan are to (a) promote the
long-term success of the Company and its Subsidiaries and to
increase stockholder value by providing Eligible Individuals with
incentives to contribute to the long-term growth and profitability
of the Company by offering them an opportunity to obtain a
proprietary interest in the Company through the grant of
equity-based awards and (b) assist the Company in attracting,
retaining and motivating highly qualified individuals who are in a
position to make significant contributions to the Company and its
Subsidiaries.
The Plan is intended to replace the Prior Plans
(as the term is defined below) and upon the Effective Date, no
further options shall be granted under the Prior Plans.
2. Definitions
and Rules of Construction
(a)
Definitions . For purposes of the Plan, the
following capitalized words shall have the meanings set forth
below:
“ Award ” means an Option,
Restricted Stock, Restricted Stock Unit, Stock Appreciation Right
or Other Award granted by the Committee pursuant to the terms of
the Plan.
“ Award Document ” means an
agreement, certificate or other type or form of document or
documentation approved by the Committee that sets forth the terms
and conditions of an Award. An Award Document may be in
written, electronic or other media, may be limited to a notation on
the books and records of the Company and, unless the Committee
requires otherwise, need not be signed by a representative of the
Company or a Participant.
“ Board ” means the Board of
Directors of the Company, as constituted from time to
time.
“ Change in Control ” has the
meaning assigned to it for purposes of the employment agreement or
consulting agreement, as the case may be, applicable to the
Participant. If there is no employment or consulting
agreement or if the employment agreement or consulting agreement
contains no such term, “Change in Control”
means:
|
|
|
The consummation of a
reorganization, merger, consolidation or other form of corporate
transaction or series of transactions, in each case, with respect
to which persons who were the stockholders of the Company
immediately prior to the reorganization, merger or consolidation or
other transaction do not, immediately thereafter, own more than 50%
of the combined voting power entitled to vote generally in the
election of directors of the reorganized, merged or consolidated
company’s then outstanding voting securities, in
substantially the same proportions as their
|
ownership immediately prior to the
reorganization, merger, consolidation or other transaction;
or
|
|
|
The consummation of a liquidation or
dissolution of the Company; or
|
|
|
|
The sale of all or substantially all
of the assets of the Company; or
|
|
|
|
Individuals who, as of the Effective
Date of this Plan, 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 stockholders, 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) shall be,
for purposes of this Plan, considered as though such person were a
member of the Incumbent Board; or
|
|
|
|
The acquisition (other than from the
Company) by any person, entity or “group,” within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act, of
beneficial ownership within the meaning of Rule 13-d promulgated
under the Exchange Act of more than 25% of either the then
outstanding Shares of the Common Stock or the combined voting power
of the Company’s then outstanding voting securities entitled
to vote generally in the election of directors (hereinafter
referred to as the ownership of a “ Controlling
Interest ”) excluding, for this purpose, any acquisitions
by (A) the Company or any of its Subsidiaries or joint ventures,
partnerships or business organizations in which the Company or its
Subsidiaries have an equity interest, (B) any person, entity or
“group” that as of the Effective Date owns beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) or a Controlling Interest or (C) any employee benefit
plan of the Company or any of its Subsidiaries or joint ventures,
partnerships or business organizations in which the Company or its
Subsidiaries have an equity interest.
|
Notwithstanding the foregoing, with respect to
an Award that is subject to Section 409A of the Code, the payment
or settlement of which will accelerate upon a Change in Control, no
event set forth in an agreement applicable to a Participant or
clauses (i), (ii) or (iii) will constitute a Change in Control for
purposes of the Plan and any Award Document unless the event also
constitutes a “change in ownership,” “change in
effective control,” or “change in the ownership of a
substantial portion of the Company’s assets” as defined
under Section 409A of the Code.
“ Code ” means the Internal
Revenue Code of 1986, as amended, and the applicable guidance,
rulings and regulations promulgated thereunder.
“ Committee ” means the Stock
Option and Compensation Committee of the Board, any successor
committee thereto or any other committee appointed from time to
time by the Board to administer the Plan. The Committee
shall serve at the pleasure of the Board and shall meet the
requirements of Section 162(m) of the Code and Section 16(b) of the
Exchange Act; provided , however , that if any
Committee member is found not to have the qualification
requirements of Section 162(m) and/or Section 16(b), any actions
taken or Awards granted shall not be invalidated by this failure to
so qualify; and provided , further , that the Board
may perform any duties delegated to the Committee and in these
instances, any reference to the Board shall be deemed a reference
to the Committee.
“ Common Stock ” means the
common stock of the Company, par value $0.01 per Share, or such
other class of Share or other securities as may be applicable under
Section 12(b) of the Plan.
“ Company ” means BE
Aerospace, Inc, a Delaware corporation, or any successor to all or
substantially all of its business that adopts the Plan.
“ Effective Date ” means the
date on which the Plan is first approved by the stockholders of the
Company.
“ Eligible Individuals ”
means the individuals described in Section 4(a) of the Plan who are
eligible for Awards under the Plan.
“ Exchange Act ” means the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“ Fair Market Value ” means,
with respect to a share of Common Stock, the fair market value of
the Share as of the relevant date of determination, as determined
in accordance with the valuation methodology approved by the
Committee. In the absence of any alternative valuation
methodology approved by the Committee, the Fair Market Value of a
Share of Common Stock shall equal the closing selling price of a
Share of Common Stock on the trading day immediately preceding the
date on which the valuation is made as reported on the composite
tape for securities listed on the Nasdaq National Market (“
Nasdaq ”), or such other national securities exchange
as may be designated by the Committee, or, in the event that the
Common Stock is not listed for trading on a national securities
exchange but is quoted on an automated system, on such automated
system, in any such case on the valuation date (or, if there were
no sales on such automated system on the valuation date, the
average of the highest and lowest quoted selling prices as reported
on said composite tape or automated system for the most recent day
during which a sale occurred).
“ Incentive Stock Option ”
means an Option that is intended to comply with the requirements of
Section 422 of the Code or any successor provision
thereto.
“ Nonqualified Stock Option ”
means an Option that is not intended to comply with the
requirements of Section 422 of the Code or any successor provision
thereto.
“ Option ” means an Incentive
Stock Option or Nonqualified Stock Option granted pursuant to
Section 7 of the Plan.
“ Other Award ” means any
form of Award other than an Option, Restricted Stock, Restricted
Stock Unit or Stock Appreciation Right granted pursuant to Section
10 of the Plan.
“ Participant ” means an
Eligible Individual who has been granted an Award under the
Plan.
“ Performance Period ” means
the period established by the Committee and set forth in the
applicable Award Document over which Performance Targets are
measured.
“ Performance Target ” means
the performance measures established by the Committee from among
the performance criteria provided in Section 6(h) and set forth in
the applicable Award Document.
“ Plan ” means the BE
Aerospace, Inc. 2005 Long-Term Incentive Plan, as may be amended or
restated from time to time.
“ Plan Limit ” means the
maximum aggregate number of Shares that may be issued for all
purposes under the Plan as set forth in Section 5(a) of the
Plan.
“ Prior Plans ” means,
collectively, the BE Aerospace, Inc. 2001 Stock Option Plan, the BE
Aerospace, Inc. 2001 Director’s Stock Option Plan, the 1996
Stock Option Plan, the United Kingdom 1992 Employee Share Option
Scheme and BE Aerospace’s Amended and Restated 1989 Stock
Option Plan.
“ Restricted Stock ” means
Shares granted or sold to a Participant pursuant to Section 8 of
the Plan.
“ Restricted Stock Unit ”
means a right to receive a Share (or cash, if
applicable) in the future granted pursuant to Section 8 of the
Plan.
“Section 162(m) Award”
means an Award that is intended to
be “qualified performance-based compensation” within
the meaning of Section 162(m) of the Code.
“ Shares ” means shares of
Common Stock.
“ Stock Appreciation Right ”
means a right to receive all or some portion of the appreciation on
Shares granted pursuant to Section 9 of the Plan.
“ Subsidiary ” means (i) a
domestic or foreign corporation or other entity with respect to
which the Company, directly or indirectly, has the power, whether
through the ownership of voting securities, by contract or
otherwise, to elect at least a majority of the members of the
corporation’s board of directors or analogous governing body,
or (ii) any other domestic or foreign corporation or other
entity in which the Company, directly or indirectly, has an equity
or similar interest and which the Committee designates as
a
Subsidiary for purposes of the
Plan. For purposes of determining eligibility for the
grant of Incentive Stock Options under the Plan, the term
“Subsidiary” shall be defined in the manner required by
Section 424(f) of the Code.
“ Target Number ” means the
target number of Shares or cash value established by the Committee
and set forth in the applicable Award Document.
(b)
Rules of Construction . The masculine pronoun
shall be deemed to include the feminine pronoun, and the singular
form of a word shall be deemed to include the plural form, unless
the context requires otherwise. Unless the text
indicates otherwise, references to sections are to sections of the
Plan.
3. Administration
(a)
Committee . The Plan shall be administered by the
Committee, which shall have full power and authority, subject to
the express provisions hereof, to:
(i) select
the Participants from the Eligible Individuals;
(ii) grant
Awards in accordance with the Plan;
(iii) determine
the number of Shares subject to each Award or the cash amount
payable in connection with an Award;
(iv) determine
the terms and conditions of each Award, including, without
limitation, those related to term, permissible methods of exercise,
vesting, forfeiture, payment, settlement, exercisability,
Performance Periods, Performance Targets, and the effect, if any,
of a Participant’s termination of employment with the Company
or any of its Subsidiaries or a Change in Control of the Company,
and including the authority to;
(v) subject
to Section 15, amend the terms and conditions of an Award after the
grant;
(vi) specify
and approve the provisions of the Award Documents delivered to
Participants in connection with their Awards;
(vii) construe
and interpret any Award Document delivered under the
Plan;
(viii) make
factual determinations in connection with the administration or
interpretation of the Plan;
(ix) adopt,
prescribe, amend, waive and rescind administrative regulations,
rules and procedures relating to the Plan;
(x) employ
legal counsel, independent auditors and consultants as it deems
desirable for the administration of the Plan and rely upon any
advice, opinion or computation received therefrom;
(xi) vary
the terms of Awards to take account of tax and securities laws and
other regulatory requirements or to procure favorable tax treatment
for Participants;
(xii) correct
any defects, supply any omission or reconcile any inconsistency in
any Award Document or the Plan; and
(xiii) make
all other determinations and take any other action desirable or
necessary to interpret, construe or implement properly the
provisions of the Plan or any Award Document.
(b)
Plan Construction and Interpretation . The
Committee shall have full power and authority, subject to the
express provisions hereof, to construe and interpret the
Plan.
(c)
Determinations of Committee Final and Binding
. All determinations by the Committee or its delegate in
carrying out and administering the Plan and in construing and
interpreting the Plan shall be made in the Committee’s sole
discretion and shall be final, binding and conclusive for all
purposes and upon all interested persons.
(d)
Delegation of Authority . To the extent not
prohibited by applicable laws, rules and regulations, the Committee
may, from time to time, delegate some or all of its authority under
the Plan to a subcommittee or subcommittees thereof or other
persons or groups of persons it deems necessary, appropriate or
advisable under conditions or limitations as it may set at the time
of the delegation or thereafter except, that the Committee may not
delegate its authority pursuant to Section 15 to amend the
Plan. For purposes of the Plan, reference to the
Committee shall be deemed to refer to any subcommittee,
subcommittees, or other persons or groups of persons to whom the
Committee delegates authority pursuant to this Section
3(d).
(e)
Liability of Committee . Subject to applicable
laws, rules and regulations (i) no member of the Board or Committee
(or its delegates) shall be liable for any good faith action or
determination made in connection with the operation, administration
or interpretation of the Plan, and (ii) the members of the Board or
the Committee (and its delegates) shall be entitled to
indemnification and reimbursement in the manner provided in the
Company’s Certificate of Incorporation and Bylaws as they may
be amended from time to time. In the performance of its
responsibilities with respect to the Plan, the Committee shall be
entitled to rely upon information and/or advice furnished by the
Company’s officers or employees, the Company’s
accountants, the Company’s counsel and any other party the
Committee deems necessary, and no member of the Committee shall be
liable for any action taken or not taken in reliance upon any such
information and/or advice.
(f)
Action by the Board . Anything in the Plan to the
contrary notwithstanding, subject to applicable laws, rules and
regulations, any authority or responsibility that, under the terms
of the Plan, may be exercised by the Committee may alternatively be
exercised by the Board.
4. Eligibility
(a)
Eligible Individuals . Awards may be granted to
officers, employees, directors, consultants, advisors and
independent contractors of the Company or any of its
Subsidiaries or joint ventures,
partnerships or business organizations in which the Company or its
Subsidiaries have an equity interest. Only employees of
the Company or a Parent or Subsidiary may be granted Incentive
Stock Options. The Committee shall have the authority to
select the persons to whom Awards may be granted and to determine
the type, number and terms of Awards to be granted to each such
Participant. Under the Plan, references to
“employment” or “employed” include the
engagement of Participants who are consultants, advisors and
independent contractors of the Company or its
Subsidiaries.
(b)
Grants to Participants . The Committee shall have
no obligation to grant any Eligible Individual an Award or to
designate an Eligible Individual as a Participant solely by reason
of the Eligible Individual having received a prior Award or having
been previously designated as a Participant. The
Committee may grant more than one Award to a Participant and may
designate an Eligible Individual as a Participant for overlapping
periods of time.
5. Shares
Subject to the Plan
(a)
Plan Limit . Subject to adjustment in accordance
with Section 12 of the Plan, the maximum aggregate number of Shares
that may be issued for all purposes under the Plan shall be seven
million five hundred thousand (7,500,000) plus any Shares that are
available for issuance under the Prior Plans or that become
available for issuance upon cancellation, forfeiture or expiration
of awards granted under the Prior Plans without having been
exercised, settled or sold. Shares to be issued under
the Plan may be authorized and unissued Shares, issued Shares that
have been reacquired by the Company (in the open-market or in
private transactions) and that are being held in treasury, or a
combination thereof. All of the Shares subject to the
Plan Limit may be issued pursuant to Incentive Stock Options,
except that in calculating the number of Shares that remain
available for Awards of Incentive Stock Options, the rules set
forth in Section 5 shall not apply to the extent not permitted
under Section 422 of the Code.
(b)
Rules Applicable to Determining Shares Available for
Issuance . The number of Shares remaining available
for issuance shall be reduced by the number of Shares subject to
outstanding Awards and, for Awards that are not denominated by
Shares, by the number of Shares actually delivered upon settlement
or payment of the Award. For purposes of determining the
number of Shares that remain available for issuance under the Plan,
(i) the number of Shares that are tendered by a Participant or
withheld by the Company to pay the exercise price of an Award or to
satisfy the Participant’s tax withholding obligations in
connection with the exercise or settlement of an Award and (ii) all
of the Shares covered by a stock-settled Stock Appreciation Right
to the extent exercised (not limited to the Shares actually issued
to Participants, but also including Shares withheld by the Company
for taxes in connection with such exercise), will not be added back
to the Plan Limit. In addition, for purposes of
determining the number of Shares that remain available for issuance
under the Plan, the number of Shares corresponding to Awards under
the Plan that are forfeited or cancelled or otherwise expire for
any reason without having been exercised or settled or that are
settled through issuance of consideration other than Shares
(including, without limitation, cash) shall be added back to the
Plan Limit and again be available for the grant of Awards;
provided , however , that this provision shall not be
applicable with respect to (i) the cancellation of a Stock
Appreciation Right granted in tandem with an Option upon the
exercise of the Option or (ii) the
cancellation of an Option granted in
tandem with a Stock Appreciation Right upon the exercise of the
Stock Appreciation Right.
(c)
Special Limits . Anything to the contrary in
Section 5(a) above notwithstanding, but subject to adjustment under
Section 12(b), the following special limits shall apply to Shares
available for Awards under the Plan:
(i) the
maximum number of Shares that may be issued pursuant to Restricted
Stock, Restricted Stock Units and Other Awards that are payable in
Shares granted under the Plan shall equal seven million five
hundred thousand (7,500,000) Shares in the aggregate;
(ii) the
maximum number of Shares that may be issued pursuant to Options and
Stock Appreciation Rights granted to any Eligible Individual in any
calendar year shall equal two hundred fifty thousand (250,000)
Shares;
(iii) the
maximum number of Shares that may be issued pursuant to Restricted
Stock Units, Restricted Stock or Other Awards granted to any
Eligible Individual in any calendar year shall equal seven hundred
fifty thousand (750,000) Shares (measured as of the date of grant);
and
(iv) the
maximum dollar value of Awards (other than Options or Stock
Appreciation Rights) that may be granted to any Eligible Individual
in any calendar year is twelve million five hundred thousand
dollars ($12,500,000) (measured as of the date of
grant).
6. Awards
in General
(a)
Types of Awards . Awards under the Plan may
consist of Options, Restricted Stock Units, Restricted Stock, Stock
Appreciation Rights and Other Awards. Any Award
described in Sections 7 through 10 of the Plan may be granted
singly or in combinatio
