-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WSLcChJ0losqXiSm62tQc4oqPXEmOP/IADuwkGKrmtI8oyN3mbbxRvFT+vJdi9JF 3HmgTgdx4+5lO6QavAq9og== 0000927016-97-002504.txt : 19970918 0000927016-97-002504.hdr.sgml : 19970918 ACCESSION NUMBER: 0000927016-97-002504 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970912 EFFECTIVENESS DATE: 19970912 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: BE AEROSPACE INC CENTRAL INDEX KEY: 0000861361 STANDARD INDUSTRIAL CLASSIFICATION: PUBLIC BUILDING AND RELATED FURNITURE [2531] IRS NUMBER: 061209796 STATE OF INCORPORATION: DE FISCAL YEAR END: 0222 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-35527 FILM NUMBER: 97679757 BUSINESS ADDRESS: STREET 1: 1400 CORPORATE CTR WY CITY: WELLINGTON STATE: FL ZIP: 33414 BUSINESS PHONE: 4077915000 MAIL ADDRESS: STREET 1: 1300 CORPORATE CENTER WAY STREET 2: 1300 CORPORATE CENTER WAY CITY: WELLINGTON STATE: FL ZIP: 33414 FORMER COMPANY: FORMER CONFORMED NAME: BE AVIONICS INC DATE OF NAME CHANGE: 19920608 S-8 1 REGISTRATION STATEMENT SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------- BE AEROSPACE, INC. (Exact name of issuer as specified in its charter) Delaware 06-1209796 - ------------------------------- --------------------- (State or other jurisdiction of (IRS Employer incorporation or organization) Identification No.) 1400 Corporate Center Way Wellington, Florida 33414 ---------------------------------- (Address of principal executive offices, including zip code) AMENDED AND RESTATED 1989 STOCK OPTION PLAN 1996 STOCK OPTION PLAN ---------------------------- (Full title of the plans) Thomas P. McCaffrey Chief Financial Officer 1400 Corporate Center Way Wellington, Florida 33414 (561) 791-5000 --------------------------------------------------------- (Name, address and telephone number of agent for service) CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------- Title of Amount Proposed Proposed Amount of Securities to be maximum maximum registration to be registered offering aggregate fee/(2)/ registered price per offering share/(1)/ price/(1)/ - ------------------------------------------------------------------------------------------------------------- Common Stock 1,500,000 $24.625 - $40.125 $52,717,625 $15,975 par value, $.01 per share - -------------------------------------------------------------------------------------------------------------
(1) The offering price for shares subject to options on the date hereof is the actual exercise price of such options. Of the 1,500,000 shares to be registered hereunder, 42,500 shares are subject to options at an exercise price of $24.625 per share and 664,500 shares are subject to options at an exercise price of $29.875 per share. The offering price for the remaining 793,000 shares not subject to options on the date hereof of $40.125 per share has been estimated solely for the purpose of determining the registration fee pursuant to Rule 457(h) on the basis of the average of the high and low prices of BE Aerospace, Inc. Common Stock, par value $0.01 per share, reported on the Nasdaq National Market on September 11, 1997. (2) Registration fee consists of $317 payable in respect of 42,500 shares subject to options at an exercise price of $24.625 per share, plus $6,016 payable in respect of 664,500 shares subject to options at an exercise price of $29.875 per share, plus $9,642 payable in respect of 793,000 shares that have not yet been subject to options on the date hereof. EXPLANATORY NOTE This Registration Statement has been filed pursuant to General Instruction E on Form S-8, to register (i) 700,000 additional securities to be offered pursuant to the Amended and Restated 1989 Stock Option Plan (the "1989 Plan") of BE Aerospace, Inc. (the "Registrant" or the "Company") and (ii) 800,000 additional securities to be offered pursuant to the 1996 Stock Option Plan (the "1996 Plan") of the Registrant. A registration statement on Form S-8 (No. 33-38223), filed with the Commission on December 14, 1990 to register 700,000 shares of common stock offered pursuant to the 1989 Plan; a registration statement on Form S-8 (No. 33-48119), filed with the Commission on May 26, 1992 to register an additional 300,000 shares of common stock offered pursuant to the 1989 Plan; a registration statement on Form S-8 (No. 33-72194), filed with the Commission on November 26, 1993 to register an additional 500,000 shares of common stock offered pursuant to the 1989 Plan; and a registration statement on Form S-8 (No. 333-14037), filed with the Commission on October 15, 1997 to register an additional 1,050,00 shares of common stock offered pursuant to the 1989 Plan and to register 500,000 shares of common stock offered pursuant to the 1996 Plan, are each currently effective and are each hereby incorporated herein by reference. -2- PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. --------------------------------------- The Registrant hereby incorporates the following documents herein by reference: (a) The Registrant's Annual Report on Form 10-K for the fiscal year ended February 22, 1997 filed with the Commission on May 9, 1997. (b) The Registrant's Quarterly Report on Form 10-Q for the quarter ended May 31, 1997 filed with the Commission on June 30, 1997. (c) The description of the common stock of the Registrant contained in the Prospectus as part of the Registrant's Registration Statement on Form 8-A (No. 0-18348) filed with the Commission on March 7, 1990 under Section 12 of the Exchange Act of 1934, as amended (the "Exchange Act.") All other documents subsequently filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Item 4. Description of Securities. ------------------------- Not required. Item 5. Interests of Named Experts and Counsel. -------------------------------------- No material interests. Item 6. Indemnification of Directors and Officers. ----------------------------------------- (a) Section 145 of the Delaware Corporation Law, as amended, gives Delaware corporations the power to indemnify each of their present and former officers or directors under certain circumstances, if such person acted in good faith and in a manner which he reasonably believed to be in, or not opposed to, the best interests of the corporation. (b) The Amended and Restated Certificate of Incorporation, as amended, of the Registrant contains provisions that eliminate the personal liability of each director to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director, except (i) for breaches of such director's duty of loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of Title 8 of the Delaware Code or (iv) for any transaction from which such director derived an improper personal benefit. (c) The Amended and Restated Certificate of Incorporation, as amended, of the Registrant contains provisions to the general effect that each director and officer shall be indemnified by the Registrant against liabilities and expenses in connection with any threatened, pending or contemplated legal proceeding to which he -3- may be a party or with which he may become involved by reason of being or having been an officer or director of the Registrant. Such indemnification is authorized to the fullest extent permitted under the Delaware General Corporation Law. Item 7. Exemption from Registration Claimed. ----------------------------------- Not applicable. Item 8. Exhibits. -------- Exhibit List 5 Opinion of Ropes & Gray. 23 Consents 23.1 Consent of Deloitte & Touche L.L.P. 23.2 Consent of Ropes & Gray (contained in Exhibit 5). 24 Power of Attorney (included as part of the signature pages to this Registration Statement). Item 9. Undertakings. ------------ (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post- effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high and of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement. (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona ---- fide offering thereof; - ---- (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. -4- (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. --------- (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. -5- SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Village of Wellington, Florida on this 12th day of September, 1997. BE Aerospace, Inc. By /s/ Robert J. Khoury --------------------------------- Robert J. Khoury, Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and as of the 12th day of September, 1997. Each person whose signature appears below hereby authorized each of Robert J. Khoury, Edmund J. Moriarty and Thomas P. McCaffrey and appoints each of them singly his attorney-in-fact, each with full power of substitution, to execute in his name, place and stead, in any and all capacities, any post-effective amendment to this Registration Statement and file the same, with exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, making such further changes in this Registration Statement as the Company deems appropriate. Signature Capacity --------- -------- /s/ Robert J. Khoury Vice Chairman; Chief Executive Officer --------------------------- and Director Robert J. Khoury /s/ Thomas P. McCaffrey Corporate Senior Vice President of --------------------------- Administration and Chief Financial Thomas P. McCaffrey Officer /s/ Paul E. Fulchino President; Chief Operating Officer and --------------------------- Director Paul E. Fulchino /s/ Jim C. Cowart Director --------------------------- Jim C. Cowart /s/ Richard G. Hamermesh Director --------------------------- Richard G. Hamermesh -6- /s/ Amin J. Khoury Director (Chairman of the Board) --------------------------- Amin J. Khoury /s/ Brian H. Rowe Director --------------------------- Brian H. Rowe /s/ Hansjoerg Wyss Director --------------------------- Hansjoerg Wyss -7- EXHIBIT INDEX Exhibit List
Number Title of Exhibit Page - ------ ---------------- ---- 5 Opinion of Ropes & Gray. 23 Consents. 23.1 Consent of Deloitte & Touche L.L.P. 23.2 Consent of Ropes & Gray (contained in Exhibit 5). 24 Power of Attorney (included as part of the signature pages to this Registration Statement).
-8- EX-5 2 EX-5 COUNSELS OPINION [LETTERHEAD OF ROPES & GRAY APPEARS HERE] September 12, 1997 BE Aerospace, Inc. 1400 Corporate Center Way Wellington, Florida 33414 Ladies and Gentlemen: This opinion is furnished to you in connection with a registration statement on Form S-8 (the "Registration Statement"), filed with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended, for the registration of 1,500,000 shares of Common Stock, $.01 par value (the "Shares"), of BE Aerospace, Inc. (the "Company"). The Shares include 700,000 issuable under the Company's Amended and Restated 1989 Stock Option Plan, as amended (the "1989 Plan") and 800,000 issuable under the 1996 Stock Option Plan (the "1996 Plan"). We have acted as counsel for the Company and are familiar with the actions taken by the Company in connection with the 1989 Plan and the 1996 Plan. For purposes of this opinion we have examined the Registration Statement, the 1989 Plan, the 1996 Plan and such other documents as we deemed appropriate. Based upon the foregoing, we are of the opinion that, when the Shares have been issued and sold and consideration received therefor by the Company in accordance with the terms, respectively, of the 1989 Plan and the 1996 Plan, the Shares will have been validly issued and will be fully paid and non-assessable. We hereby consent to your filing this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ Ropes & Gray Ropes & Gray EX-23.1 3 EX-23.1 AUDITORS CONSENT Exhibit 23.1 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of BE Aerospace, Inc. on Form S-8, relating to the Amended and Restated 1989 Stock Option Plan and 1996 Stock Option Plan, of our report dated April 10, 1997, appearing in the Annual Report on Form 10-K of BE Aerospace, Inc. for the year ended February 22, 1997. Deloitte & Touche LLP Costa Mesa, California September 8, 1997 -----END PRIVACY-ENHANCED MESSAGE-----