EXHIBIT10.7 EXECUTIONCOPY AMENDEDAND RESTATED EMPLOYMENT AGREEMENT

REFERENCE TO EMPLOYMENT AGREEMENT.

ARRANGEMENT.

TERM.

CAPACITY, SERVICES AND PERFORMANCE.

Capacity.  Executive shall serve the Company as its Chairman of the Board of Directors of the Company (the “Board”) and Chief Executive Officer, or in such other Board or executive capacity as the Board may designate from time to time, but only upon agreement with Executive.

Services.  In the capacity set forth in Section 4.1 above, Executive shall be retained by the Company and shall perform such duties and responsibilities on behalf of the Company as Executive and the Board shall by mutual agreement from time to time determine.

Performance.  During the Employment Term,  Executive shall use his business judgment, skill and knowledge to the advancement of the Company’s interests and to the discharge of his duties and responsibilities hereunder; provided, however, that  Executive shall be required only to devote so much time as  Executive determines is reasonably necessary to discharge his duties as Chairman of the Board and Chief Executive Officer, and, subject to the provisions of Section 6 below, Executive may engage in other business activities during the Employment Term.

COMPENSATION AND BENEFITS.

Salary.  Effective as of July 1, 2008, and during the Employment Term, Executive shall receive an annual salary (the “Salary”) of one million and forty-one thousand dollars ($1,041,000) during each year of the Employment Term.  The Salary shall be subject to adjustment from time to time by the Compensation Committee of the Board (the “Compensation Committee”); provided, however, that at no time shall the Salary be adjusted below the Salary for the preceding year.  Commencing on July 1, 2009, and on July 1st of each year thereafter during the Employment Term, the Salary then in effect shall be increased by an amount not less than the amount determined by applying to the Salary then in effect to 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 consecutive 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 index issued by such agency which 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, and shall be pro-rated for any period of service less than a full year.

Bonuses.  Executive may receive bonuses from the Company when, as and if determined from time to time by the Compensation Committee.  Any such bonuses paid to Executive shall be in addition to the Salary then in effect.  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 respect of which Executive earned such bonus.

Benefits.  So long as employed, 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 addition, Executive and his spouse, for as long as they each may live, shall be entitled to (i) all medical, dental and health benefits available from time to time to the Company’s executive officers and their spouses, respectively (other than medical reimbursement plans) on similar terms and conditions as active employees (provided that the level of such benefits is not greater than the benefits available to Executive on December 31, 2004 and which included 100% reimbursement of all medical and dental benefits incurred by Executive and his family, the cost of which is fully paid by the Company), and (ii) the benefits available under the Company’s executive medical reimbursement plan in effect as of March 1, 2001.

Business Expenses.  The Company shall pay or reimburse Executive for all reasonable business expenses incurred or paid by him during the Employment Term in the performance of his services.

Automobile.  So long as employed, Executive shall receive either an automobile owned or leased by the Company or a monthly automobile allowance, as determined by the Company, which automobile or allowance shall be at least equivalent to that which the Company was providing to Executive as of April 30, 2006.  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 the automobile allowance was accrued.

Equity Incentive Compensation.  So long as employed, Executive shall be eligible to participate in any applicable equity incentive compensation program of the Company on the terms set forth by the Compensation Committee in its sole discretion.

PROPRIETARY RIGHTS AND NON-COMPETITION.

Confidentiality.   Executive will maintain in confidence and will not disclose or use, either during or after the Employment Term, any proprietary or confidential information or know-how belonging to the Company (“Proprietary Information” hereinafter defined), whether or not in written form, except to the extent required to perform duties on behalf of the Company.  For purposes of this Agreement, “Proprietary Information” shall mean any information, not generally known to the relevant trade or industry, which was obtained from the Company, or which was learned, discovered, developed, conceived, originated or prepared by Executive in connection with this Agreement.  Such Proprietary Information includes, without limitation, software, technical and business information relating to the Company’s inventions or products, research and development, production processes, manufacturing and engineering processes, machines and equipment, finances, customers, marketing and production and future business plans, information belonging to customers or suppliers of the Company disclosed incidental to Executive’s performance under this Agreement, and any other information which is identified as confidential by the Company, but only so long as the same is not generally known in the relevant trade or industry.

Inventions.

Definition of Inventions.  For purposes of this Agreement, “Inventions” shall mean any new or useful art, discovery, contribution, finding or improvement, whether or not patentable, and all related know-how.  Inventions shall include, without limitation, all designs, discoveries, formulae, processes, manufacturing techniques, semiconductor designs, computer software, inventions, improvements and ideas.

Disclosure and Assignment of Inventions.  Executive will promptly disclose and describe to the Company all Inventions which he may solely or jointly conceive, develop, or reduce to practice during the Employment Term or the Consulting Period (as defined in Section 7.7) (i) which relate at the time of conception, development, or reduction to practice of the Invention to the Company’s business or actual or demonstrably anticipated research or development, (ii) which were developed, in whole or in part, on the Company’s time or with the use of any of the Company’s equipment, supplies, facilities or trade secret information, or (iii) which resulted from any work performed by  Executive for the Company (the “Company’s Inventions”).  Executive hereby assigns to the Company all of his right, title and interest world-wide in and to the Company’s Inventions and in all intellectual property rights based upon the Company’s Inventions; provided, however, that Executive does not assign or agree to assign any Inventions, whether or not relating in any way to the Company’s business or demonstrably anticipated research and development, which were made by him prior to the date of this Agreement, or which were developed by him independently during the Employment Term and not under the conditions stated in subparagraph (ii) above.

Documents and Materials.  Upon termination of this Agreement or at any other time upon the Company’s request, Executive will promptly deliver to the Company, without retaining any copies, all documents and other materials furnished to him by the Company (other than personal copies of documents relating to Executive’s employment terms), prepared by him for the Company or otherwise relating to the Company’s business, including, without limitation, all written and tangible material in his possession incorporating any Proprietary Information.

Competitive Employment.  During the Employment Term, the Consulting Period (as defined in Section 7.7), if applicable, and for a period of two (2) years thereafter (collectively, the “Extended Term”), Executive will not engage in any employment, consulting, or other activity in any business competitive with the Company without the Company’s written consent, which consent shall not be unreasonably withheld; provided, however, that nothing in this Section 6.4 shall preclude Executive from serving as a director of any other corporation, or a partner or investor in a private equity firm.

Non-Solicitation.  During the Extended Term, Executive will not solicit or encourage, or cause others to solicit or encourage, any employees of the Company to terminate their employment with the Company.

Acts to Secure Proprietary Rights.

6.6.1    

Further Acts.  Executive agrees to perform, during and after the Employment Term and the Consulting Period, if applicable, all acts deemed necessary or desirable by the Company to permit and assist it, at its expense, in perfecting and enforcing the full benefits, enjoyment, rights and title throughout the world in the Company’s Inventions.  Such acts may include, without limitation, execution of documents and assistance or cooperation in the registration and enforcement of applicable patents and copyrights or other legal proceedings.

6.6.2    

Appointment of Attorney-In-Fact.  In the event that the Company is unable, for any reason whatsoever, to secure Executive’s signature to any lawful and necessary document required to apply for or execute any patent, copyright or other applications with respect to any of the Company’s Inventions (including improvements, renewals, extensions, continuations, divisions or continuations in part thereof), Executive hereby irrevocably appoints the Company and its duly authorized officers and agents as his agents and attorneys-in-fact to execute and file any such application and to do all other lawfully permitted acts to further the prosecution and issuance of patents, copyrights or other rights thereon with the same legal force and effect as if executed by him, intending hereby to create a so-called “durable power” which will survive any subsequent disability.

No Conflicting Obligations.  Executive’s performance of this Agreement does not breach and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by him.

Corporate Opportunities.  Executive agrees that during the Employment Term and the Consulting Period, if applicable, he will first present to the Board, for its acceptance or rejection on behalf of the Company, any opportunity to create or invest in any company which is or will be involved in equipping or furnishing airplane cabin interiors, which comes to his attention and in which he, or any of his affiliates, might desire to participate.  If the Board rejects the same or fails to act thereon in a reasonable time, Executive shall be free to invest in, participate or present such opportunity to any other natural person, corporation, limited liability company, limited or general partnership, or any other entity (each, a “Person”).

Specific Performance.  Executive acknowledges that a breach of any of the promises or agreements contained herein could result in irreparable and continuing damage to the Company for which there may be no adequate remedy at law, and the Company shall be entitled to seek injunctive relief and/or a decree for specific performance.

TERMINATION AND CHANGE OF CONTROL.

7.1.1    

Termination Date.  The term “Termination Date” shall mean the date on which Executive incurs a Separation from Service (as defined below) with the Company and its subsidiaries and affiliates for any reason.

7.1.2    

Termination by Executive.  If Executive resigns his employment for any reason other than (i) death pursuant to Section 7.2, (ii) Incapacity pursuant to Section 7.3,  (iii) Good Reason following a Change of Control pursuant to Section 7.4.3 or (iv) contemporaneously with a Change of Control pursuant to Section 7.4.2, then on the Termination Date, Executive shall receive payment of (A) any accrued and unpaid Salary and benefits through the Termination Date, (B) the entire remaining unpaid balance of the Retirement Compensation pursuant to Section 7.6 hereof, determined as of the Termination Date, and (C) the Severance Payment pursuant to Section 7.5 hereof.  In addition, Executive and his spouse shall continue to be entitled to medical, dental and health benefits pursuant to Section 5.3 hereof and the Company shall engage Executive to render consulting services to the Company in accordance with Section 7.7 hereof.

7.1.3    

Termination by the Company.  If the Company terminates Executive’s employment hereunder for any reason other than (i) death pursuant to Section 7.2, (ii) Incapacity pursuant to Section 7.3 or (iii) contemporaneously with a Change of Control pursuant to Section 7.4.2, then on the Termination Date, Executive shall receive payment of (A) any accrued and unpaid Salary and benefits through the Termination Date, (B) any bonuses payable to Executive for any fiscal periods of the Company ending prior to the Termination Date, (C) a lump-sum amount equal to his Salary that he would have received had he remained employed from the Termination Date through the Expiration Date, (D) the entire remaining unpaid balance of the Retirement Compensation pursuant to Section 7.6 hereof, determined as of the Expiration Date, and (E) the Severance Payment pursuant to Section 7.5 hereof.  In addition, (x) Executive and his spouse shall continue to be entitled to medical, dental and health benefits pursuant to Section 5.3 hereof, (y) 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 be exercisable immediately, and, notwithstanding any termination of employment provisions set forth in the applicable agreement or related plan, all Equity Awards shall continue to be exercisable until their original stated expiration date and (z) the Company shall engage Executive to render consulting services to the Company in accordance with Section 7.7 hereof.

Death.

7.2.1    

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 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 payment equal to (i) 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 and (ii) the entire remaining unpaid balance of the Retirement Compensation as provided in Section 7.6 below, determined as of the Termination Date.

7.2.2    

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 three (3) million dollars in accordance with the Death Benefit Agreement attached as Exhibit A hereto.

7.2.3    

The Company shall, within thirty (30) days following Executive’s 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 (i) any accrued and unpaid Salary and benefits through his date of death, and (ii) any bonuses payable to Executive for any fiscal periods of the Company ending prior to the date of death.  Executive’s spouse shall continue to be entitled to medical, dental and health benefits pursuant to Section 5.3 hereof.

7.2.4    

Upon Executive’s death, 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, all Equity Awards shall continue to be exercisable until their original stated expiration date.

Incapacity.  If, in the reasonable judgment of the Compensation Committee, as a result of the Executive’s incapacity due to a medically determinable physical or mental illness, the Executive shall have been absent from his full-time duties as described hereunder for the entire period of twenty-nine (29) consecutive months (“Incapacity”), the Executive’s employment shall terminate at the end of the twenty-nine (29)-month period as provided in this Section 7.3.  In such event:

(i)      

the Company shall give prompt notice to Executive of any such termination;

(ii)      

the Company shall pay to the Executive within sixty (60) days following the Termination Date, a lump-sum amount equal to two (2) times the Salary (at the rate in effect on the Termination Date) that would have been payable from the Termination Date through the Expiration Date;

(iii)      

the Company shall pay to Executive the entire remaining unpaid balance of the Retirement Compensation as provided in Section 7.6 and below, determined as of the Termination Date;

(iv)      

the Company shall pay to Executive within ten (10) business days after 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;

(v)      

the Company shall continue to provide medical, dental and health benefits as provided in Section 5.3 hereof; and

(vi)      

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.

Change of Control; Definitions.

7.4.1    

Change of Control.  If a “Change of Control” of the Company occurs, the Company will be obligated as provided in this Section 7.4.1.  For purposes of determining the Company’s obligations under this Section 7.4.1, 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:

(i)      

pay to Executive the amount of any Gross-Up Payment payable by the Company to Executive under Section 7.8 hereof in accordance with the payment terms therein;

(ii)      

continue to provide to Executive and his spouse, for their respective lifetimes, medical, dental and health benefits as provided in Section 5.3 hereof; provided, however, that the terms and level of such benefits shall be substantially similar as Executive and his spouse were receiving as of the Change of Control Date, or if greater, as they were receiving on December 31, 2004; and

(iii)      

provide that any Equity Awards granted to Executive that would not vest on or prior to the Change of Control Date shall vest, settle and, if applicable, be exercisable upon the earlier of (i) the Change of Control Date and (ii) 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.

7.4.2    

Termination or Resignation Contemporaneous with a Change of Control.  If, contemporaneously with a Change of Control, Executive’s employment is terminated by the Company for any reason or Executive resigns his employment for any reason other than for Good Reason pursuant to Section 7.4.3, the Company shall:

    (i)      

pay to Executive 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)      

pay to Executive the entire remaining unpaid balance of the Retirement Compensation, as provided in Section 7.6 and below, determined as of the Termination Date;

(iii)      

continue to provide medical, dental and health benefits as provided in Section 5.3 hereof;

(iv)      

engage Executive to render consulting services to the Company in accordance with Section 7.7 hereof; and

(v)      

pay to Executive the Severance Payment pursuant to Section 7.5 hereof.

7.4.3    

Resignation for Good Reason following a Change of Control.  If, following a Change of Control, Executive resigns his employment for Good Reason, then on the Termination Date, Executive shall receive,  payment of (A) any accrued and unpaid Salary and benefits through the Termination Date, (B) any bonuses payable to Executive for any fiscal periods of the Company ending prior to the Termination Date, (C) a lump-sum amount equal to his Salary from the Termination Date through the Expiration Date, (D) the entire remaining unpaid balance of the Retirement Compensation pursuant to Section 7.6 hereof, determined as of the Expiration Date, and (E) the Severance Payment pursuant to Section 7.5 hereof.  In addition, (x) Executive and his spouse shall continue to be entitled to medical, dental and health benefits pursuant to Section 5.3 hereof, (y) any Equity Awards granted to Executive that would not vest on or prior to the Termination Date shall vest, settle and be exercisable immediately, and, notwithstanding any termination of employment provisions set forth in the applicable agreement or related plan, all Equity Awards shall continue to be exercisable until their original stated expiration date and (z) the Company shall engage Executive to render consulting services to the Company in accordance with Section 7.7 hereof.

7.4.4    

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 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.  Such obligation may be paid from the general assets of the Company or from the assets of any such rabbi 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.

7.4.5    

Definitions.

(i)      

For purposes of this Agreement, 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

(4)      

A Majority Owned Entity of any Person or group described by (3), above.

(ii)      

For the purposes of this Section 7.4.5, 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.

(iii)      

For the purposes of this Section 7.4.5, 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.

(iv)      

A Change of Control shall occur on the effective date of any event specified in Section 7.4.5(i) above.  In connection with any determination of ownership for purposes of Section 7.4.5(i) above, the attribution rules of Section 318(a) of the Internal Revenue Code of 1986, as amended (the “Code”), shall apply.

(v)      

For purposes of this Agreement, “Good Reason” means:

(A)      

Any decrease in Executive’s Salary or a failure by the Company to pay any material compensation due and payable to Executive in connection with his employment;

(B)      

Any change in Executive’s responsibilities, positions, duties, status, title or reporting relationships;

(C)      

Executive ceasing to be the Chief Executive Officer of a publicly traded company pursuant to this Agreement;

(D)      

Following a Change of Control, the Company (or its successor) requiring Executive to be based at any office or location other than Executive’s principal place of employment immediately prior to the effective date of the Change of Control, if applicable; or

(E)      

A material breach by the Company of any term of this Agreement;

Severance Payment.

Retirement Compensation.

7.6.2    

Payment of Retirement Compensation.

(i)      

Within five 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 the amount of Retirement Compensation that would have been payable to Executive under Section 7.6.1 as of the Distribution Date, based on his years of service through the Distribution Date and his then Specified Annual Salary.

(ii)      

Within five (5) business days after Executive’s actual Termination Date, the Company shall pay to Executive an amount equal to (x) the Retirement Compensation payable to Executive as determined in Section 7.6.1 hereof less (y) the sum of (1) the amount of Retirement Compensation previously distributed to Executive pursuant to Section 7.6.2(i) hereof, and (2) the amounts previously distributed pursuant to Section 7.6.3(i) or 7.6.3(ii).

7.6.3    

Retirement Trust.

(i)      

Within ninety (90) days after the Distribution Date, the Company shall establish a trust for the duration of the Employment Term, and, commencing on such 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 7.6.2(ii) 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)-day period beginning on the date on which he receives notice from the Company that the Company has made a contribution pursuant to this Section 7.6.3(i), 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 7.6, shall be paid to Executive, and that the Retirement Trust shall be exempt from the claims of the Company’s creditors.

(ii)      

The 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 7.6.3(i).  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 by which (x) the Assumed Taxes that the Company reasonably estimates will be assessed upon Executive for the calendar year for which the distribution is being made as a result of his beneficial interest in the Retirement Trust, exceeds (y) the amount withdrawn by Executive in such calendar year pursuant to Section 7.6.3(i).  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 taxes.

Consulting Arrangement.  In the event that Executive’s employment terminates for any reason (including, without limitation, Executive’s voluntary resignation) other than death pursuant to Section 7.2 or Incapacity pursuant to Section 7.3, then the Company shall retain Executive to perform consulting services for a period of five (5) years following the Termination Date (the “Consulting Period”).  The terms of Executive’s consulting arrangement are set forth on Exhibit B attached hereto.

Certain Additional Payments by the Company.

7.8.1    

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 7.8) (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 rates of federal income 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 rate 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 and employment taxes.  The Gross-Up Payment shall be paid to the Executive no later than the end of the taxable year next following the taxable year in which the Executive remits the taxes related to the Gross-Up Payment.

7.8.2    

Subject to the provisions of Section 7.8.3, all determinations required to be made under this Section 7.8, 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) business 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 7.8, 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 7.8 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 the Executive remits the taxes.  The previous sentence shall apply mutatis mutandis to any overpayment of the Gross-Up Payment.

7.8.3    

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) business days after 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)-day period following the date on which it 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:

(i)      

give the Company any information reasonably requested by the Company relating to such claim,

(ii)      

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,

(iii)      

cooperate with the Company in good faith in order effectively to contest such claim, and

(iv)      

permit the Company to participate in any proceedings relating to such claim;

7.8.4    

If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 7.8.3, 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 7.8.3 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 7.8.3, 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.

WITHHOLDING.

INDEMNIFICATION.

LEGAL FEES.

UNFUNDED STATUS.

SECTION 409A.

If any amounts that become due under Section 7 (other than Section 7.8) of this Agreement constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code, payment of such amounts shall not commence until the 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.

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 the Executive’s Separation from Service for any reason other than death or (ii) Executive’s date of death.  The Company shall establish a 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 12.2 that otherwise would be immediately payable to  Executive.  The provisions of this Section 12.2 shall only apply if required to comply with Section 409A of the Code.

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.

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 the 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.

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 or its subsidiary or affiliate 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.

The provisions of Section 7.8 of this Agreement, mutatis mutandis, shall apply to any imposition of taxes on Executive under 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.

WAIVER.

SEVERABILITY.

NOTICES.

SURVIVAL.

MISCELLANEOUS.