Exhibit 4.5
BE AEROSPACE, INC.
NON-EMPLOYEE DIRECTORS DEFERRED STOCK PLAN
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BE AEROSPACE, INC.
NON-EMPLOYEE DIRECTORS DEFERRED STOCK PLAN
TABLE OF CONTENTS
Page
SECTION 1. PURPOSES AND AUTHORIZED SHARES..............................1
SECTION 2. DEFINITIONS.................................................1
SECTION 3. PARTICIPATION...............................................3
SECTION 4. DIRECTORS' COMPENSATION.....................................3
SECTION 5. DEFERRAL ACCOUNTS...........................................4
5.1 Share Account....................................................4
5.2 Dividend Equivalent Credits to Share Account.....................4
5.3 Immediate Vesting................................................4
5.4 Distribution of Shares...........................................5
5.5 Adjustments In Case Of Changes In Common Stock...................6
SECTION 6. ADMINISTRATION..............................................6
6.1 The Administrator................................................6
6.2 Committee Action.................................................6
6.3 Rights And Duties; Delegation And Reliance; Decisions
Binding..........................................................6
SECTION 7. PLAN CHANGES AND TERMINATION................................7
7.1 Amendments.......................................................7
7.2 Term.............................................................7
SECTION 8. MISCELLANEOUS...............................................7
8.1 Unfunded Plan and Limitation On Participants' Rights.............7
8.2 Beneficiaries....................................................8
8.3 Benefits Not Transferable; Obligations Binding Upon
Successors.......................................................8
8.4 Governing Law; Severability......................................8
8.5 Compliance With Laws.............................................9
8.6 Plan Construction................................................9
8.8 Headings Not Part Of Plan........................................9
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BE AEROSPACE, INC.
NON-EMPLOYEE DIRECTORS DEFERRED STOCK PLAN
SECTION 1. PURPOSES AND AUTHORIZED SHARES
The purpose of the BE Aerospace, Inc. Non-Employee Directors Deferred
Stock Plan (the "Plan") is to attract, motivate and retain eligible directors of
the Company by providing a Plan for them to receive compensation that is payable
in the form of Common Stock upon termination of their service as Directors of
the Company. An aggregate number not to exceed 200,000 shares of Common Stock
(subject to adjustments contemplated by Section 5.5 hereof) may be delivered
pursuant to this Plan.
SECTION 2. DEFINITIONS
Whenever the following terms are used in this Plan, they shall have the
meaning specified below unless the context clearly indicates to the contrary:
ACCOUNT or ACCOUNTS means one or more of the Participant's Share
Account(s), as the context requires.
AVERAGE FAIR MARKET VALUE means the average of the Fair Market Values
of a share of Common Stock during the last ten (10) trading days ending on or
before the applicable Award Date.
AWARD DATE means the last day of each Quarter, except as provided in
Section 5.3 hereof.
BOARD means the Board of Directors of the Company.
CHANGE IN CONTROL means:
(a) Approval by the shareholders of the Company of (x) 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
shareholders of the Company immediately prior to such 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 such reorganization, merger, consolidation or other
transaction, or (y) a liquidation or dissolution of the Company or (z) the sale
of all or substantially all of the assets of the Company (unless such
reorganization, merger, consolidation or other corporate transaction,
liquidation, dissolution or sale is subsequently abandoned);
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(b) 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 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) shall be, for purposes of this Plan, considered as
though such person were a member of the Incumbent Board; or
(c) 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 Securities Exchange Act of 1934, of beneficial ownership within the meaning
of Rule 13-d promulgated under the Securities Exchange Act of 1934 of more than
50% of either the then outstanding shares of the Company's 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 (1) the Company or its subsidiaries, (2) any person, entity or
"group" that as of the Effective Date owns beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Securities Exchange Act of 1934) of
a Controlling Interest or (3) any employee benefit plan of the Company or its
subsidiaries.
CODE means the Internal Revenue Code of 1986, as amended.
COMMON STOCK means the Common Stock of the Company, subject to
adjustment pursuant to Section 5.5 hereof.
COMMITTEE means the Board or a Committee of the Board acting under
delegated authority from the Board.
COMPANY means BE Aerospace, Inc., a Delaware corporation, and its
successors and assigns.
DIVIDEND EQUIVALENT means the amount of cash dividends or other cash
distributions paid by the Company on that number of shares of Common Stock which
is equal to the number of Shares then credited to a Participant's Share Account
on the applicable measurement date, which amount shall be allocated as
additional Shares to the Participant's Share Account, as provided in Section 5.2
hereof.
EFFECTIVE DATE means September 1, 2000.
ELIGIBLE COMPENSATION means retainer and meeting fees for services as
an Eligible Director.
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ELIGIBLE DIRECTOR means a member of the Board who is not an officer or
employee of the Company or a subsidiary and who is compensated in the capacity
as a member of the Board.
EXCHANGE ACT means the Securities Exchange Act of 1934, as amended from
time to time.
FAIR MARKET VALUE means on any date the average of the high and low
prices of the Common Stock on the Composite Tape, as published in The Wall
Street Journal or otherwise reliably reported, of the principal securities
exchange or market on which the Common Stock is so listed, admitted to trade, or
quoted or, if there is no trading of the Common Stock on such date, then the
average of the high and low prices of the Common Stock as quoted on such
Composite Tape on the next preceding date on which there was trading in such
shares. If the Common Stock is not so listed, admitted or quoted, the Committee
may designate such other exchange, market or source of data as it deems
appropriate for determining such value for purposes of this Plan.
PARTICIPANT means any Eligible Director who elects to participate in
this Plan or otherwise has an Account balance under this Plan.
PLAN means the BE Aerospace, Inc. Non-Employee Directors Deferred Stock
Plan.
SHARE means a share of Common Stock.
SHARE ACCOUNT means the bookkeeping account maintained by the Company
on behalf of each Participant which is credited with Shares in accordance with
Section 5.1.
STOCK COMPENSATION means the portion of a Participant's Eligible
Compensation that is credited to the Participant's Share Account under this
Plan.
TRUST means the trust established pursuant to the BE Aerospace, Inc.
Executive and Directors Deferred Compensation Plan Trust Agreement, as amended
and restated effective as of September 1, 2000, between the Company and Security
Trust Company as the Trustee, and as amended from time to time.
TRUSTEE means the person (or persons) or entity (or entities) from time
to time serving as the trustee (or trustees) of the Trust.
QUARTER means the three-month period from July 1 through September 30,
2000, and each calendar quarter thereafter during the term of this Plan.
SECTION 3. PARTICIPATION
All Eligible Directors are Participants in this Plan.
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SECTION 4. DIRECTORS' COMPENSATION
For each Quarter ending on or after September 30, 2000, one-half of the
Eligible Compensation payable to each Eligible Director for such Quarter shall
be paid in cash within 30 days after the end of each such Quarter, and the other
one-half shall be converted into a number of Shares and credited to the
Participant's Share Account pursuant to this Plan. The number of Shares to be so
credited to the Participant's Share Account shall be equal to one-half of the
Participant's Eligible Compensation for the Quarter divided by the Average Fair
Market Value of a Share determined as of the last day of the Quarter.
SECTION 5. DEFERRAL ACCOUNTS
5.1 SHARE ACCOUNT.
(a) Credited Shares. As of the last day of each Quarter, the
Committee shall credit to the Participant's Share Account a number of Shares
equal to the number of shares of Common Stock earned by the Participant as Stock
Compensation for services as an Eligible Director for that Quarter as determined
pursuant to Section 4 hereof.
(b) Limitations on Rights Associated with Shares. A Participant's
Share Account shall be a memorandum account on the books of the Company. The
Shares credited to a Participant's Share Account shall be used solely as a
device for the determination of the number of shares of Common Stock to be
eventually distributed to the Participant in accordance with this Plan. The
Share Account shall not be treated as property or as a trust fund of any kind.
No Participant shall be entitled to any voting or other stockholder rights with
respect to his Share Account, or any Shares contributed to the Trust to fund his
benefits hereunder. The number of Shares credited (and the number of Shares to
which the Participant is entitled under this Plan) shall be subject to
adjustment in accordance with Section 5.5 and the terms of this Plan.
(c) Trust Contributions. Stock Compensation credited to a
Participant's Share Account shall be contributed by the Company to the Trust, in
Shares, as soon as administratively practicable after its being so credited.
5.2 DIVIDEND EQUIVALENT CREDITS TO SHARE ACCOUNT. As of the end of each
Quarter, a Participant's Share Account shall be credited with additional Shares
in an amount equal to the Dividend Equivalents representing dividends paid
during the Quarter on a number of Shares equal to the aggregate number of Shares
in the Participant's Share Account, as of the end of the preceding Quarter.
5.3 IMMEDIATE VESTING AND ACCELERATED CREDITING. All Shares credited to
a Participant's Share Account shall be at all times fully vested and not subject
to a risk of forfeiture.
5.4 DISTRIBUTION OF SHARES.
(a) Time and Manner of Distribution of Accounts. The Shares payable
under this Plan in respect of Share Accounts shall be distributed to the
Participant (or, in the event of
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his or her death, the Participant's Beneficiary) in such manner as elected by
the Participant and set forth in the Participant's election form. A Participant
may elect distributions in one of the following two forms: (i) a lump sum
distribution, or (ii) annual installments not to exceed five (5) such annual
installments. Each annual installment shall be equal to the number of Shares in
the Participant's Share Account multiplied by a fraction, the numerator of which
is one (1) and the denominator of which is the number of installments remaining
to be paid. In the event that a Participant fails to make an election, then
distribution shall be made in the form of a lump sum. Each Account, less any
applicable withholding taxes, shall be distributed commencing on the first day
of the month immediately following the date of the Participant's termination of
service, or as soon as administratively practicable thereafter.
Notwithstanding the foregoing, if after a termination of service the
number of Shares remaining in the Participant's Share Account is less than
1,000, then such remaining balance shall be distributed in a lump sum.
(b) Change in Manner of Distribution of Share Accounts. A
Participant may change the manner of any distribution election from a lump sum
to annual installments (or vice versa) with respect to amounts credited to his
Share Account by filing a written election with the Committee on a form provided
by the Committee; provided, however, that no such election shall be effective
until at least 12 months after such election is filed with the Committee, and no
such election shall be effective with respect to any Account after benefits with
respect to such Account have commenced. An election made pursuant to this
Section 5.4(b) shall not affect the date of the commencement of benefits.
(c) Form of Distribution of Share Accounts. Shares credited to a
Participant's Share Account shall be distributed in an equivalent whole number
of shares of the Company's Common Stock. Any fractional share interests shall be
accumulated and paid in cash with the last distribution.
(d) Acceleration. The Board by declaration may accelerate any
payment date (using for valuation purposes the date of its decision and prior
retainer payment dates in the applicable period) in extraordinary circumstances
where it determines that such action is necessary or advisable to prevent a
forfeiture or permit the realization of intended benefits and is otherwise fair
to the director and the Company.
(e) Change in Control. Notwithstanding the foregoing, lump sum
distributions of the balance of any amounts payable to Participants and their
beneficiaries as soon as practicable following the Change in Control (using for
valuation purposes the date on which the Change in Control occurs).
5.5 ADJUSTMENTS IN CASE OF CHANGES IN COMMON STOCK. If there shall
occur any change in the outstanding shares of the Company's Common Stock by
reason of any stock dividend, stock split, recapitalization, merger,
consolidation, combination or other reorganization, exchange of shares, sale of
all or substantially all of the assets of the Company, split-up, split-off,
spin-off, extraordinary redemption, liquidation or similar corporate change or
change in capitalization or any distribution to holders of the Company's Common
Stock (other
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than cash dividends and cash distributions), the Committee shall make such
proportionate and equitable adjustments consistent with the effect of such event
on stockholders generally (but without duplication of benefits if Dividend
Equivalents are credited), as the Committee determines to be necessary or
appropriate, in the number, kind and/or character of shares of Common Stock or
other securities, property and/or rights contemplated hereunder, including any
appropriate adjustments to the market prices used in the determination of the
number of Shares, and in rights in respect of Share Accounts credited under this
Plan so as to preserve the benefits intended.
SECTION 6. ADMINISTRATION
6.1 THE ADMINISTRATOR. The Administrator of this Plan shall be the
Board as a whole or a Committee as appointed from time to time by the Board to
serve as administrator of this Plan. The participating members of any Committee
so acting shall include, as to decisions in respect of participants who are
subject to Section 16 of the Exchange Act, only those members who are
Non-Employee Directors (as defined in Rule 16b-3 promulgated under the Exchange
Act). Members of the Committee shall not receive any additional compensation for
administration of this Plan.
6.2 COMMITTEE ACTION. A member of the Committee shall not vote or act
upon any matter which relates solely to himself or herself as a Participant in
this Plan. Action of the Committee with respect to the administration of this
Plan shall be taken pursuant to a majority vote or (assuming compliance with
Section 6.1) by unanimous written consent of its members.
6.3 RIGHTS AND DUTIES; DELEGATION AND RELIANCE; DECISIONS BINDING.
Subject to the limitations of this Plan, the Committee shall be charged with the
general administration of this Plan and the responsibility for carrying out its
provisions, and shall have powers necessary to accomplish those purposes,
including, but not by way of limitation, the following:
(1) To construe and interpret this Plan;
(2) To resolve any questions concerning the amount of benefits
payable to a Participant (except that no member of the Committee shall
participate in a decision relating solely to his or her own benefits);
(3) To make all other determinations required by this Plan;
(4) To maintain all the necessary records for the administration of
this Plan; and
(5) To make and publish forms, rules and procedures for the
administration of this Plan.
The determination of the Committee made in good faith as to any
disputed question or controversy and the Committee's determination of benefits
payable to Participants, including decisions as to adjustments under Section
5.5, shall be conclusive and binding for all purposes of
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this Plan. In performing its duties, the Committee shall be entitled to rely on
information, opinions, reports or statements prepared or presented by: (i)
officers or employees of the Company whom the Committee believes to be reliable
and competent as to such matters; and (ii) counsel (who may be employees of the
Company), independent accountants and other persons as to matters which the
Committee believes to be within such persons' professional or expert competence.
The Committee shall be fully protected with respect to any action taken
or omitted by it in good faith pursuant to the advice of such persons. The
Committee may delegate ministerial, bookkeeping and other non-discretionary
functions to individuals who are officers or employees of the Company.
SECTION 7. PLAN CHANGES AND TERMINATION
7.1 AMENDMENTS. The Board shall have the right to amend this Plan in
whole or in part from time to time or may at any time suspend or terminate this
Plan; provided, however, that, except as contemplated by Section 5.5, no
amendment or termination shall cancel or otherwise adversely affect in any way,
without his or her written consent, any Participant's rights with respect to
then outstanding Accounts or Dividend Equivalent credits thereon, so long as the
Account is outstanding. Any amendments authorized hereby shall be stated in an
instrument in writing, and all Participants shall be bound by the amendment upon
receipt of notice the amendment.
7.2 TERM. It is the current expectation of the Company that this Plan
shall continue indefinitely. Continuance of this Plan, however, is not assumed
as a contractual obligation of the Company. If the Board of Directors decides to
discontinue or terminate this Plan, it shall notify the Committee and
Participants in this Plan of its action in writing, and this Plan shall be
terminated at the time set forth on the notice. All Participants shall be bound
thereby. No benefits shall accrue in respect of Eligible Compensation earned
after a discontinuance or termination of this Plan.
SECTION 8. MISCELLANEOUS
8.1 UNFUNDED PLAN AND LIMITATION ON PARTICIPANTS' RIGHTS. The
obligations of the Company under this Plan shall be paid by the Company.
Participants shall have the rights no greater than the right to receive the
Shares (or equivalent value as a general unsecured creditor) allocable to the
Share Accounts. The Plan constitutes a mere promise by the Company to make
distributions in the future. It is intended that this Plan shall constitute an
"unfunded" plan for tax purposes and an "unfunded" plan for a select group of
management or highly compensated employees under the Employee Retirement Income
Security Act of 1974, as amended. If the Company makes any investments, such
investments of the Company shall be subject to the claims of the Company's
creditors. The assets of the Trust also shall be subject to the Company's
creditors in the event of the Company's Insolvency, as defined in the Trust
Agreement establishing the Trust. Nothing contained in this Plan shall be
interpreted to grant to any Participant or any Beneficiary, any right, title or
interest in any property of the Company or the Trust. Participation in this Plan
shall not give any person the right to serve as a member of the Board or any
rights or interests other than as herein provided. Participants shall not be
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entitled to receive actual dividends or to vote Shares until after delivery of a
certificate representing the Shares.
8.2 BENEFICIARIES.
(a) Beneficiary Designation. Upon forms provided by and subject to
conditions imposed by the Company, each Participant may designate in writing the
Beneficiary or Beneficiaries (as defined in Section 8.2(b)) whom such
Participant desires to receive any amounts payable under this Plan after his or
her death. The Company and the Committee may rely on the Participant's
designation of a Beneficiary or Beneficiaries last filed in accordance with the
terms of this Plan.
(b) Definition of Beneficiary. A Participant's "Beneficiary" or
"Beneficiaries" shall be the person, persons, trust or trusts (or similar
entity) designated by the Participant or, in the absence of a designation,
entitled by will or the laws of descent and distribution to receive the
Participant's benefits under this Plan in the event of the Participant's death,
and shall mean the Participant's executor or administrator if no other
Beneficiary is identified and able to act under the circumstances.
8.3 BENEFITS NOT TRANSFERABLE; OBLIGATIONS BINDING UPON SUCCESSORS.
Benefits of a Participant under this Plan shall not be assignable or
transferable and any purported transfer, assignment, pledge or other encumbrance
or attachment of any payments or benefits under this Plan, or any interest
therein, other than by operation of law or pursuant to Section 8.2, shall not be
permitted or recognized. Shares deliverable under this Plan may be subject to
restrictions on transfer under applicable securities laws, unless the Shares are
duly registered prior to issuance. Obligations of the Company under this Plan
shall be binding upon successors of the Company.
8.4 GOVERNING LAW; SEVERABILITY. The validity of this Plan or any of
its provisions shall be construed, administered and governed in all respects
under the laws of the State of Florida. If any provisions of this Plan shall be
held by a court of competent jurisdiction to be invalid or unenforceable, the
remaining provisions hereof shall continue to be fully effective.
8.5 COMPLIANCE WITH LAWS. This Plan and the offer, issuance and
delivery of shares of Common Stock through the deferral of stock under this Plan
are subject to compliance with all applicable federal and state laws, rules and
regulations (including but not limited to state and federal securities law) and
to such approvals by any listing, agency or any regulatory or governmental
authority as may, in the opinion of counsel for the Company, be necessary or
advisable in connection therewith. Any securities delivered under this Plan
shall be subject to prior registration or such restrictions as the Company may
deem necessary or desirable to assure compliance with all applicable legal
requirements, and the person acquiring such securities shall, if requested by
the Company, provide such assurances and representations to the Company as it
may reasonably request to assure such compliance.
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8.6 PLAN CONSTRUCTION. It is the intent of the Company that
transactions pursuant to this Plan satisfy and be interpreted in a manner that
satisfies the applicable conditions for exemption under Rule l6b-3 promulgated
under the Exchange Act ("Rule l6b-3") so that Shares and Dividend Equivalents
credited, and the distribution of Shares, hereunder will be entitled to the
benefits of Rule l6b-3 or other exemptive rules under Section 16 of the Exchange
Act and will not be subjected to avoidable liability thereunder. The Committee
may, subject to Section 8.5 hereof, permit elections by individual directors
that would not qualify for exemption under Section 16(b) of the Exchange Act, so
long as the availability of any exemption thereunder for other Directors under
this Plan is not compromised.
8.7 HEADINGS NOT PART OF PLAN. Headings and subheadings in this Plan
are inserted for reference only and are not to be considered in the construction
of the provisions hereof.
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