-----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, QopdoxOqi2B/XRu8xZ+yzT5CaMiLhtezGit+AH6KjbnCHt76y+bAW+EIt5GepxZR ypFJqS1uqKew+pXIjdFy1A== 0000947871-00-000170.txt : 20000218 0000947871-00-000170.hdr.sgml : 20000218 ACCESSION NUMBER: 0000947871-00-000170 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20000216 EFFECTIVENESS DATE: 20000216 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: 333-30578 FILM NUMBER: 547877 BUSINESS ADDRESS: STREET 1: 1400 CORPORATE CTR WY CITY: WELLINGTON STATE: FL ZIP: 33414 BUSINESS PHONE: 5617915000 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 INITIAL STATEMENT As filed with the Securities and Exchange Commission on February 16, 2000 Registration No. 333-[_____] ================================================================================ 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 (I.R.S. Employer incorporation or organization) Identification No.) 1400 Corporate Center Way Wellington, Florida 33414 (Address of principal executive offices, including zip code) 1994 EMPLOYEE STOCK PURCHASE PLAN 1996 STOCK OPTION PLAN (Full title of the plans) --------------------------------- Thomas P. McCaffrey Chief Financial Officer BE Aerospace, Inc. 1400 Corporate Center Way Wellington, Florida 33414 (561) 791-5000 (Name, address and telephone number of agent for service) CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------ Proposed maximum Proposed maximum Title of securities Amount to be offering price aggregate Amount of to be registered registered per share offering price registration fee - ------------------------------------------------------------------------------------------------------------------------ Common Stock, par (2) (3) value $.01 per share(1) 1,000,000 $8.375 $8,370,000 $2,211.00 - ------------------------------------------------------------------------------------------------------------------------ (1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the "Securities Act"), this registration statement on Form S-8 (the "Registration Statement") also covers an indeterminate amount of interests to be offered or sold pursuant to the Registrant's 1994 Employee Stock Purchase Plan, as amended. (2) Includes 500,000 Shares under the 1994 Employee Stock Purchase Plan, and 500,000 Shares under the 1996 Stock Option Plan. (3) The offering price of the 1,000,000 shares registered hereunder of $8.375 per share has been estimated solely for the purpose of determining the registration fee pursuant to Rule 457(c) and 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 February 11, 2000.
PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Item 1. Plan Information.* Item 2. Registrant Information and Employee Plan Annual Information.* - ------------------------- * Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act and the "Note" to Part I of Form S-8. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents filed with the Securities & Exchange Commission (the "Commission"), are incorporated as of their respective dates in this Registration Statement by reference. (a) the Registrant's Annual Report on Form 10-K for the fiscal year ended February 27, 1999; (b) the Registrant's Quarterly Reports on Form 10-Q for the quarters ended May 29, 1999, August 28, 1999 and November 27, 1999; and (c) the description of the Common Stock contained in the Prospectus filed as part of the Registrant's Registration Statement on Form S-1 (No. 33-33689) as amended, filed with the Commission on March 7, 1990 pursuant to Section 12 of the Exchange Act of 1934, as amended (the "Exchange Act"), and the description of the attached shareholder rights described in the Registrant's Current Report on Form 8-K, filed with the Commission on November 18, 1998. All other documents subsequently filed by the Registrant pursuant to Section 13(a), 13(c), 14 and 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. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement incorporated by reference herein modified or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Item 4. Description of Securities. Not required. Item 5. Interests of Named Experts and Counsel. None. Item 6. Indemnification of Directors and Officers. (a) Section 145 of the General Corporation Law of the State of Delaware (the "DGCL") provides, in summary, that directors and officers of Delaware corporations such as the Registrant are entitled, under certain circumstances, to be indemnified against all expenses and liabilities (including attorneys' fees) incurred by them as a result of suits brought against them in their capacity as a director or officer if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the Registrant and, with respect to any criminal action or proceeding, if they had no reasonable cause to believe their conduct was unlawful; provided that no indemnification may be made against expenses in respect of any claim, issue or matter as to which they shall have been adjudged to be liable to the Registrant, unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, they are fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper. Any such indemnification may be made by the company only as authorized in each specific case upon a determination by the stockholders or disinterested directors that indemnification is proper because the indemnitee has met the applicable standard of conduct. 3 (b) Article 7 of the Registrant's Amended and Restated Certificate of Incorporation, as amended, eliminates 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) Article 8 of the Registrant's Amended and Restated Certificate of Incorporation, as amended, provides for the indemnification of each director and officer of the Registrant against liabilities and expenses (including legal fees) arising from any threatened, pending or contemplated legal proceeding to which he 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. The following exhibits are filed as part of this Registration Statement: Exhibit No. Description of Document - ------- ----------------------- 4.1 Amended and Restated Certificate of Incorporation (incorporated herein by reference to the Registrant's Registration Statement on Form S-1, as amended (No. 33-33689), filed with the Commission on March 7, 1990). 4.2 Certificate of Amendment of the Restated Certificate of Incorporation (incorporated herein by reference to the Registrant's Registration Statement on Form S-1, as amended (No. 33-54146), filed with the Commission on November 3, 1992). 4.3 Certificate of Amendment of the Restated Certificate of Incorporation (incorporated by reference to the Registrant's Registration Statement on Form S-3 (No. 333-60209), filed with the Commission on July 30, 1998). 4.4 Amended and Restated By-Laws (incorporated herein by reference to the Registrant's Current Report on Form 8-K dated November 12, 1998, filed with the Commission on November 18, 1998). 4.5 1996 Stock Option Plan (incorporated herein by reference to the Registrant's Registration Statement on Form S-8 (No. 333-14037), filed with the Commission on October 15, 1996). 4.6 Amendment No. 1 to the 1996 Stock Option Plan (incorporated herein by the reference to the Registrant's Registration Statement on Form S-8 (No. 333-89145), filed with the Commission on October 15, 1999). 4.7 Amendment No. 2 to the 1996 Stock Option Plan, dated January 19, 2000. 4.8 1994 Employee Stock Purchase Plan, amended and restated as of January 19, 2000. 4 5 Opinion of Shearman & Sterling regarding the legality of the securities being offered hereby. 23.1 Consent of Deloitte & Touche LLP. 23.2 Consent of Shearman & Sterling (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; (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 this Registration Statement or any material change to such information in the Registration Statement; (2) That, for the purpose of determining any liabilities under the Securities Act, each such post-effective amendment 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; (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. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) 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 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 5 court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. 6 SIGNATURES Pursuant to the requirements of the Securities Act, the Registrant 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 City of Wellington, State of Florida on the 16th day of February, 2000. BE Aerospace, Inc. By: /s/ Robert J. Khoury ------------------------------ Name: Robert J. Khoury Title: Chief Executive Officer Pursuant to the requirements of the Securities Act, the administrator of the 1994 Employee Stock Purchase Plan has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Wellington, State of Florida on the 16th day of February, 2000. By: /s/ Thomas P. McCaffrey ---------------------------------- Name: Thomas P. McCaffrey Title: Corporate Senior Vice President of Administration and Chief Financial Officer 7 KNOW ALL MEN BY THESE PRESENTS that each person whose signature to this Registration Statement appears below hereby constitutes and appoints each of Robert J. Khoury, Edmund J. Moriarty and Thomas P. McCaffrey as such person's true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for such person and in such person's name, place and stead, in any and all capacities, to sign any and all amendments to the Registration Statement, including post-effective amendments, and registrations statements filed pursuant to Rule 462 under the Securities Act, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Commission, and does hereby grant unto each said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or any substitute therefor, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities indicated as of the 16th day of February, 2000. Signature Capacity --------- -------- /s/ Amin J. Khoury Director (Chairman of the Board) - -------------------------- Amin J. Khoury /s/ Robert J. Khoury Vice Chairman, Chief Executive Officer and Director - -------------------------- (principal executive officer) Robert J. Khoury /s/ Thomas P. McCaffrey Corporate Senior Vice President of Administration - -------------------------- and Chief Financial Officer (principal financial Thomas P. McCaffrey and accounting officer) /s/ Jim C. Cowart Director - -------------------------- Jim C. Cowart /s/ Richard G. Hamermesh Director - -------------------------- Richard G. Hamermesh /s/ Brian H. Rowe Director - -------------------------- Brian H. Rowe /s/ Hansjorg Wyss Director - -------------------------- Hansjorg Wyss 8 EXHIBIT INDEX Number Title of Exhibit ------ ---------------- 4.1 Amended and Restated Certificate of Incorporation (incorporated herein by reference to the Registrant's Registration Statement on Form S-1, as amended (No. 33-33689), filed with the Commission on March 7, 1990). 4.2 Certificate of Amendment of the Restated Certificate of Incorporation (incorporated herein by reference to the Registrant's Registration Statement on Form S-1, as amended (No. 33-54146), filed with the Commission on November 3, 1992). 4.3 Certificate of Amendment of the Restated Certificate of Incorporation (Incorporated by reference to the Registrant's Registration Statement on Form S-3 (No. 333-60209), filed with the Commission on July 30, 1998). 4.4 Amended and Restated By-Laws (incorporated herein by reference to the Registrant's Current Report on Form 8-K dated November 12, 1998, filed with the Commission on November 18, 1998). 4.5 1996 Stock Option Plan (incorporated herein by reference to the Registrant's Registration Statement on Form S-8 (No. 333-14037), filed with the Commission on October 15, 1996). 4.6 Amendment No. 1 to the 1996 Stock Option Plan (incorporated herein by reference to the Registrant's Registration Statement on Form S-8 (No. 333- 89145), filed with the commission on October 15, 1999). *4.7 Amendment No. 2 to the 1996 Stock Option Plan, dated January 19, 2000. *4.8 1994 Employee Stock Purchase Plan, amended and restated as of dated January 19, 2000. *5 Opinion of Shearman & Sterling regarding the legality of the securities being offered hereby. *23.1 Consent of Deloitte & Touche LLP. *23.2 Consent of Shearman & Sterling (contained in Exhibit 5). *24 Power of Attorney (included as part of the signature pages to this Registration Statement). - ----------------------------- * Filed herewith. 9 EX-4.7 2 STOCK OPTION PLAN Exhibit 4.7 AMENDMENT NO. 2 TO THE BE AEROSPACE, INC. 1996 STOCK OPTION PLAN, AS AMENDED (As amended through August 15, 1997) WHEREAS, BE Aerospace, Inc., a Delaware Corporation (the "Company") maintains the 1996 Stock Option Plan (the "Plan") in order to enhance the ability of the Company and its subsidiaries to (i) to attract and retain directors, employees, consultants or advisors, (ii) to reward such individuals for their contributions to the success of the Company and (iii) to encourage such individuals to take into account the long-term interests of the Company and its subsidiaries thorough ownership of shares in the Company's common stock, par value $.01 per share (the "Common Stock"); WHEREAS, the Plan provides that the Board of Directors of the Company (the "Board") may amend the Plan at any time to increase the maximum number of shares available under the Plan; WHEREAS, the Board has authorized an increase in the number of shares of Common Stock available under the Plan by 500,000 to 3,150,000; NOW, THEREFORE, effective as of January 19, 2000, the Company amends the Plan as follows: 1. Section 5(a) shall be amended by deleting "2,650,000 " from the third line and replacing it with "3,150,000". 2. Except as set forth herein, the Plan is hereby ratified and confirmed in all respects. IN WITNESS WHEREOF, the undersigned have executed this Amendment effective as of January 19, 2000. BE AEROSPACE, INC. By:/s/ Jeffrey P. Holtzman ---------------------------------------- Name: Jeffrey P. Holtzman Date: Vice President, Treasurer and Assistant Secretary EX-4.8 3 EMPLOYEE STOCK PURCHASE PLAN Exhibit 4.8 BE AEROSPACE, INC. 1994 Employee Stock Purchase Plan (Amended and Restated as of January 19, 2000) SECTION 1. PURPOSE OF PLAN This document amends and restates the BE Aerospace, Inc. 1994 Employee Stock Purchase Plan (the "Plan") as of January 19, 2000. The Plan is intended to provide a method by which eligible employees of BE Aerospace, Inc. ("BE Aerospace") and of such of BE Aerospace's subsidiaries as BE Aerospace's Board of Directors (the "Board of Directors") may from time to time designate (such subsidiaries, together with BE Aerospace, being hereinafter referred to as the "Company") may use voluntary, systematic payroll deductions to purchase shares of the Common Stock of BE Aerospace (the "Stock") and thereby acquire an interest in the future of the Company. For purposes of the Plan, a "subsidiary" is any corporation in which BE Aerospace owns, directly or indirectly, stock possessing 50% or more of the total combined voting power of all classes of stock. SECTION 2. OPTIONS TO PURCHASE STOCK Under the Plan, there is available an aggregate of not more than 1,000,000 shares of Stock (subject to adjustment as provided in Section 15) for sale pursuant to the exercise of options ("Options") granted under the Plan to employees of the Company ("Employees") who meet the eligibility requirements set forth in Section 3 hereof ("Eligible Employees"). The Stock to be delivered upon exercise of Options under the Plan may be either shares of authorized but unissued Stock or shares of reacquired Stock, as the Board of Directors may determine. SECTION 3. ELIGIBLE EMPLOYEES Except as otherwise provided below, each individual who is an Employee of the Company, who has a customary working schedule of at least 20 hours per week, and who has been an Employee for at least 90 days will be eligible to participate in the Plan. (a) Any Employee who immediately after the grant of an Option to him or her would (in accordance with the provisions of Sections 423 and 424(d) of the Internal Revenue Code of 1986, as amended (the "Code")) own stock possessing 5% or more of the total combined voting power or value of all classes of stock of the employer corporation or of its parent or subsidiary corporations, as defined in Section 424 of the Code, will not be eligible to receive an Option to purchase Stock pursuant to the Plan. (b) No Employee will be granted an Option under the Plan which would permit his or her rights to purchase shares of Stock under all employee stock purchase plans of the Company and parent and subsidiary corporations to accrue at a rate which exceeds $25,000 in fair market value of such Stock (determined at the time the Option is granted) for each calendar year during which any such Option granted to such Employee is outstanding at any time, as provided in Sections 423 and 424(d) of the Code. SECTION 4. METHOD OF PARTICIPATION Each of the periods during which this Plan remains in effect is hereinafter referred to as an "Option Period". Option Periods shall be of six-months duration. Each person who will be an Eligible Employee on the first day of an Option Period may elect to participate in the Plan by executing and delivering, at least 15 days prior to such day, a payroll deduction authorization in accordance with Section 5. Such Employee will thereby become a participant ("Participant") for such Option Period and for each subsequent consecutive Option Period, subject to Section 5. SECTION 5. PAYROLL DEDUCTION The payroll deduction authorization will request withholding at a rate (in whole percentages) of not less than 2% nor more than 15% from the Participant's Compensation by means of equal payroll deductions over the Option Period. The payroll deduction authorization will remain in effect for consecutive subsequent Option Periods unless changed or revoked by the Participant pursuant to this Section 5. For purposes of the Plan, "Compensation" will mean all compensation paid to the Participant by the Company and currently includible in his or her income, including bonuses, commissions and other amounts includible in the definition of compensation provided in the Treasury Regulations promulgated under Section 415 of the Code, plus any amount that would be so included but for the fact that it was contributed to a qualified plan pursuant to an elective deferral under Section 401(k) of the Code or contributed under a salary reduction agreement pursuant to Section 125 of the Code, but not including payments under stock option plans and other employee benefit plans or any other amounts excluded from the definition of compensation provided in the Treasury Regulations under Section 415 of the Code. A Participant may reduce the withholding rate of his or her payroll deduction authorization by one or more whole percentage points (but not to below 2%) at any time during an Option Period by delivering written notice to the Company, such reduction to take effect prospectively as soon as practicable following receipt of such notice by the Company. A Participant may increase or reduce the withholding rate of his or her payroll deduction authorization for a future Option Period, or cease participation entirely for a future Option Period, by written notice delivered to the Company at least 15 days prior to the first day of the Option Period as to which the change is to be effective. All amounts withheld in accordance with a Participant's payroll deduction authorization will be credited to a withholding account for such Participant. 2 SECTION 6. GRANT OF OPTIONS Each person who is a Participant on the first day of an Option Period will, as of such day, be granted an Option for such Period. Such Option will be for the number of whole shares (not in excess of the share maximum as hereinafter defined) of Stock to be determined by dividing (i) the balance in the Participant's withholding account on the last day of the Option Period, by (ii) the purchase price per share of the Stock determined under Section 7. For purposes of the preceding sentence, the share maximum with respect to any Option for any Option Period shall be the largest whole number of shares which, when multiplied by the fair market value of a share of Stock at the beginning of the Option Period, produces a dollar amount of $12,500 or less. The number of shares of Stock receivable by each Participant upon exercise of his or her Option for an Option Period will be reduced, on a substantially proportionate basis, in the event that the number of shares then available under the Plan is otherwise insufficient. SECTION 7. PURCHASE PRICE The purchase price of Stock issued pursuant to the exercise of an Option will be 85% of the fair market value of the Stock at (a) the time of grant of the Option or (b) the time at which the Option is deemed exercised, whichever is less. Fair market value on any given day will mean the Closing Price of the Stock on such day (or, if there was no Closing Price on such day, the latest day prior thereto on which there was a Closing Price). The "Closing Price" of the Stock on any business day will be the last sale price as reported on the principal market on which the Stock is traded or, if no last sale is reported, then the mean between the highest bid and lowest asked prices on that day. A good faith determination by the Board of Directors as to fair market value shall be final and binding. SECTION 8. EXERCISE OF OPTIONS Each Employee who is a Participant in the Plan on the last day of an Option Period will be deemed to have exercised on the last day of the Option Period the Option granted to him or her for that Option Period. Upon such exercise, the balance of the Participant's withholding account will be applied to the purchase of the number of whole shares of Stock determined under Section 6 and as soon as practicable thereafter certificates for said shares will be issued and delivered to the Participant. In the event that the balance of the Participant's withholding account following an Option Period is in excess of the total purchase price of the shares so issued, the balance of the account shall be returned to the Participant; provided, however, that if the balance left in the account consists solely of an amount equal to the value of a fractional share it will be retained in the withholding account and carried over to the next Option Period. The entire balance of the Participant's withholding account following the final Option Period shall be returned to the Participant. No fractional shares will be issued hereunder. 3 Notwithstanding anything herein to the contrary, BE Aerospace's obligation to issue and deliver shares of Stock under the Plan is subject to the approval required of any governmental authority in connection with the authorization, issuance, sale or transfer of said shares, to any requirements of any national securities exchange applicable thereto, and to compliance by the Company with other applicable legal requirements in effect from time to time, including without limitation any applicable tax withholding requirements. SECTION 9. INTEREST No interest will be payable on withholding accounts. SECTION 10. CANCELLATION AND WITHDRAWAL A Participant who holds an Option under the Plan may at any time prior to exercise thereof under Section 8 cancel such Option as to all (but not less than all) the Shares subject or to be subject to such Option by written notice delivered to the Company. Upon such cancellation, the balance in his or her withholding account will be returned to him or her. A Participant may terminate his or her payroll deduction authorization as of any date by written notice delivered to the Company and will thereby cease to be a Participant as of such date. Any Participant who voluntarily terminates his or her payroll deduction authorization prior to the last business day of an Option Period will be deemed to have canceled his or her Option. Any Participant who cancels an Option or terminates his or her payroll deduction authorization may, as of the beginning of a subsequent Option Period, again become a Participant in accordance with Section 4; provided, however, that any such Participant who is at the time subject to the provisions of Section 16 of the Securities Exchange Act of 1934, as amended (the "1934 Act"), may not again become a Participant until at least six months have elapsed after the date on which he or she ceased to be a Participant. SECTION 11. TERMINATION OF EMPLOYMENT Subject to Section 12, upon the termination of a Participant's service with the Company for any reason, he or she will cease to be a Participant, and any Option held by such Participant under the Plan will be deemed canceled, the balance of his or her withholding account will be returned to him or her, and he or she will have no further rights under the Plan. Notwithstanding the foregoing, in the event that an Employee ceases to be a Participant either (a) as a result of the sale or other disposition by the Company of substantially all of the assets used by the division of the Company in which the Participant was employed, or (b) by reason of a sale or other disposition by the Company of its interest in a subsidiary by which the Participant was employed, 4 such Employee will no longer be eligible to make any additional contributions as of the date of cessation of employment ("Cessation Date"); provided, however, that unless the Participant cancels the Option pursuant to Section 10 hereof, the balance of the Participant's withholding account shall be applied to the purchase of shares, in accordance with Section 8 hereof, on the last day of the Option Period immediately following his or her Cessation Date if and only if the last day of such Option Period occurs no later than ninety (90) days from his or her Cessation Date. If, however, the last day of the subsequent Option Period occurs more than ninety (90) days after the Participant's Cessation Date, then his or her withholding account will be returned to him or her, and he or she will have no further rights under the Plan. SECTION 12. DEATH OF PARTICIPANT A Participant may file a written designation of beneficiary specifying who is to receive any Stock and/or cash credited to the Participant under the Plan in the event of the Participant's death, which designation will also provide for the election by the Participant of either (i) cancellation of the Participant's Option upon his or her death, as provided in Section 10 or (ii) application as of the last day of the Option Period of the balance of the deceased Participant's withholding account at the time of death to the exercise of his or her Option, pursuant to Section 8 of the Plan. In the absence of a valid election otherwise, the death of a Participant will be deemed to effect a cancellation of his or her Option. A designation of beneficiary and election may be changed by the Participant at any time, by written notice. In the event of the death of a Participant and receipt by BE Aerospace of proof of the identity and existence at the Participant's death of a beneficiary validly designated by him or her under the Plan, BE Aerospace will deliver to such beneficiary such Stock and/or cash to which the beneficiary is entitled under the Plan. Where the Participant has elected option (ii) above but there is no surviving designated beneficiary, BE Aerospace will deliver such Stock and/or cash to the executor or administrator of the estate of the Participant. No beneficiary will, prior to the death of the Participant by whom he or she has been designated, acquire any interest in any Stock or cash credited to the Participant under the Plan. SECTION 13. PARTICIPANT'S RIGHTS NOT TRANSFERABLE All Participants will have the same rights and privileges under the Plan. Each Participant's rights and privileges under any Option may be exercisable during his or her lifetime only by him or her, and may not be sold, pledged, assigned, or transferred in any manner. In the event any Participant violates the terms of this Section, any Option held by him or her may be terminated by the Company and upon return to the Participant of the balance of his or her withholding account, all his or her rights under the Plan will terminate. 5 SECTION 14. EMPLOYMENT RIGHTS Nothing contained in the provisions of the Plan will be construed to give to any Employee the right to be retained in the employ of the Company or to interfere with the right of the Company to discharge any Employee at any time. The loss of existing or potential profit in Options will not constitute an element of damages in the event of termination of employment for any reason, even if the termination is in violation of an obligation to the Participant. SECTION 15. CHANGE IN CAPITALIZATION In the event of any change in the outstanding Stock of BE Aerospace by reason of a stock dividend, split-up, recapitalization, merger, consolidation, reorganization, or other capital change, after the effective date of this Plan, the aggregate number of shares available under the Plan, the number of shares under Options granted but not exercised, and the Option price will be appropriately adjusted. SECTION 16. ADMINISTRATION OF PLAN The Plan will be administered by the Benefits Committee of the Board of Directors, which will have the right to determine any questions which may arise regarding the interpretation and application of the provisions of the Plan and to make, administer, and interpret such rules and regulations as it deems necessary or advisable. The Benefits Committee's determinations hereunder shall be final and binding. SECTION 17. AMENDMENT AND TERMINATION OF PLAN BE Aerospace reserves the right at any time or times to amend the Plan to any extent and in any manner it may deem advisable by vote of the Board of Directors; provided, however, that any amendment relating to the aggregate number of shares which may be issued under the Plan (other than an adjustment provided for in Section 15) or to the Employees (or class of Employees) eligible to receive Options under the Plan will have no force or effect unless it is approved by the shareholders within twelve months before or after its adoption. The Plan shall terminate automatically following the end of the second Option Period beginning in 2003; provided, however, that the Board of Directors in its discretion may extend the Plan for one or more Option Periods. The Plan may be earlier suspended or terminated by the Board of Directors, but no such suspension or termination will adversely affect the rights and privileges of holders of outstanding Options. The Plan will terminate in any case when all or substantially all the Stock reserved for the purposes of the Plan has been purchased. 6 SECTION 18. APPROVAL OF SHAREHOLDERS The Plan was initially approved by the shareholders of BE Aerospace on August 11, 1994 with respect to 500,000 shares of Stock. With respect to the remaining 500,000 shares of Stock, this plan is subject to approval by the shareholders of BE Aerospace prior to January 19, 2001, the date that is twelve months following the date that the Plan was amended by the Board of Directors to increase the number of outstanding shares of Common Stock by 500,000 to 1,000,000. If approval of the shareholders is not obtained prior to January 19, 2001, the Plan will have no force and effect with regard to such additional shares. IN WITNESS WHEREOF, the Company has caused this Plan to be executed on its behalf the 19th day of January, 2000. BE AEROSPACE, INC. By:/s/ Jeffrey P. Holtzman ------------------------------------- Name: Jeffrey P. Holtzman Title: Vice President, Treasurer and Assistant Secretary 7 EX-5. 4 OPINION REGARDING LEGALITY [Letterhead of Shearman and Sterling] February 16, 2000 BE Aerospace, Inc. 1400 Corporate Center Way Wellington, Florida 33414 Ladies and Gentlemen: We have acted as counsel for BE Aerospace, Inc., a Delaware corporation (the "Company"), in connection with the Registration Statement on Form S-8 (the "Registration Statement") of the Company filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act"), with respect to 1,000,000 shares (the "Shares") of common stock, par value $.01 per share, of the Company (the "Common Stock"), to be issued from time to time pursuant to (i) the 1994 Employee Stock Purchase Plan and (ii) the 1996 Stock Option Plan (each, a "Plan"). In so acting, we have examined the Registration Statement and we have also examined and relied as to factual matters upon the representations and warranties contained in originals, or copies certified or otherwise identified to our satisfaction, of such documents, records, certificates and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. In such examination, we have assumed the genuineness of all signatures, the authenticity of all documents, certificates and instruments submitted to us as originals and the conformity with originals of all documents submitted to us as copies. The opinion expressed below is limited to the General Corporation Law of Delaware, and we do not express any opinion herein concerning any other law. Based upon the foregoing and having regard for such legal considerations as we have deemed relevant, we are of the opinion that the Shares have been duly authorized by the BE Aerospace, Inc. 2 February 16, 2000 Company and, when (a) issued and delivered by the Company in accordance with the terms of the relevant Plan and (b) paid for in full in accordance with the terms of the relevant Plan, the Shares will be validly issued, fully paid and non-assessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ Shearman & Sterling EX-23.1 5 CONSENT OF EXPERT 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 1994 Employee Stock Purchase Plan and the 1996 Stock Option Plan, of our report dated April 16, 1999, appearing in the Annual Report on Form 10-K of BE Aerospace, Inc. for the year ended February 27, 1999. /s/ Deloitte & Touche LLP DELOITTE & TOUCHE LLP Costa Mesa, California February 16, 2000 -----END PRIVACY-ENHANCED MESSAGE-----