0000947871-01-500836.txt : 20011019
0000947871-01-500836.hdr.sgml : 20011019
ACCESSION NUMBER: 0000947871-01-500836
CONFORMED SUBMISSION TYPE: S-8
PUBLIC DOCUMENT COUNT: 6
FILED AS OF DATE: 20011011
EFFECTIVENESS DATE: 20011011
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: 1933 Act
SEC FILE NUMBER: 333-71442
FILM NUMBER: 1757302
BUSINESS ADDRESS:
STREET 1: 1400 CORPORATE CTR WY
CITY: WELLINGTON
STATE: FL
ZIP: 33414
BUSINESS PHONE: 5617915000
MAIL ADDRESS:
STREET 1: 1400 CORPORATE CENTER WAY
STREET 2: 1400 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
fs8_091901.txt
REGISTRATION STATEMENT
As filed with the Securities and Exchange Commission on October 11, 2001.
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 registrant 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)
BE AEROSPACE, INC. 2001 STOCK OPTION PLAN
BE AEROSPACE, INC. 2001 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
AMENDED AND RESTATED BE AEROSPACE, INC. 1994 EMPLOYEE STOCK
PURCHASE 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 (1) per share (2) offering price registration fee
-----------------------------------------------------------------------------------------------------------------
Common Stock, par value
$.01 per share 1,250,000 $9.74 $12,175,000 $3,043.75
-----------------------------------------------------------------------------------------------------------------
(1) This registration statement on Form S-8 (this "Registration Statement")
shall also cover any additional shares of Common Stock which become
issuable under the plan being registered pursuant to this Registration
Statement by reason of any stock dividend, stock split,
recapitalization or any other similar transaction effected without the
receipt of consideration which results in an increase in the number of
the Registrant's outstanding shares of common stock, par value $0.01
per share (the "Common Stock").
(2) Estimated in accordance with Rules 457(c) and 457(h) under the
Securities Act of 1933, as amended (the "Securities Act") solely for
the purpose of determining the registration fee. Estimate based on the
average of the high and low prices of the Common Stock, par value $0.01
per share, reported on the Nasdaq National Market on October 8, 2001.
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 and 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 24, 2001;
(b) the Registrant's Quarterly Report on Form 10-Q for the quarter
ended May 26, 2001;
(c) the Registrant's Current Report on Form 8-K filed with the
Commission on August 13, 2001;
(d) the Registrant's Current Report on Form 8-K filed with the
Commission on August 21, 2001 and as amended on Form 8-K/A filed with
the Commission on August 23, 2001;
(e) the Registrant's Quarterly Report on Form 10-Q for the quarter
ended August 25, 2001; and
(f) the description of the Registrant's 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 Registration Statement
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 Registrant 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.
See attached Exhibit list.
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 this 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;
(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; and
(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.
4
(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
Securities 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 Securities
Act and will be governed by the final adjudication of such issue.
5
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 11th day of
October, 2001.
BE Aerospace, Inc.
By: /s/ Robert J. Khoury
---------------------------------------
Name: Robert J. Khoury
Title: Chief Executive Officer
6
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 11th day of October, 2001.
Signature Capacity
--------- --------
/s/ Amin J. Khoury Director (Chairman of the Board)
------------------------------------
Amin J. Khoury
/s/ Robert J. Khoury President, Chief Executive Officer and
------------------------------------ Director (principal executive officer)
Robert J. Khoury
/s/ Thomas P. McCaffrey Corporate Senior Vice President of
------------------------------------ Administration, Chief Financial
Thomas P. McCaffrey Officer and Assistant Secretary
(principal financial 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/ Jonathan M. Schofield Director
------------------------------------
Jonathan M. Schofield
7
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 BE Aerospace, Inc. 2001 Stock Option Plan.
*4.6 BE Aerospace, Inc. 2001 Non-Employee Directors'
Stock Option Plan.
4.7 BE Aerospace, Inc. 1994 Employee Stock Purchase Plan (Amended
and Restated as of January 19, 2000) (Incorporated by
reference to the Registrant's Registration Statement on Form
S-3 (No. 333-30578), filed with the Commission on February 17,
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).
*23.3 Consent of PricewaterhouseCoopers LLP.
*24 Power of Attorney (included as part of the signature pages to
this Registration Statement).
-----------------------------
* Filed herewith.
8
EX-4.5
3
ex4-5tofs8_091901.txt
BE AEROSPACE 2001 STOCK OPTION PLAN
EXHIBIT 4.5
BE AEROSPACE, INC.
2001 STOCK OPTION PLAN
BE AEROSPACE, INC.
2001 STOCK OPTION PLAN
1. Purpose
The purposes of the Plan are to (a) promote the long-term
success of the Company and its Subsidiaries and to increase stockholder value by
providing Eligible Individuals with incentives to contribute to the long-term
growth and profitability of the Company through ownership of shares of Common
Stock and (b) assist the Company in attracting, retaining and motivating highly
qualified individuals who are in a position to make significant contributions to
the Company and its Subsidiaries. The Plan is intended to comply with the terms
and provisions of Rule 16b-3 promulgated under the Exchange Act. The Plan
permits the Committee to grant Stock Options that constitute "qualified
performance-based compensation" for purposes of Section 162(m) of the Code. Any
provision of the Plan or any Award Document inconsistent with Rule 16b-3 of the
Exchange Act or Section 162(m) of the Code shall be inoperative and shall not
affect the validity of the Plan, such Award Document or any other provision
thereof.
The Plan is intended to replace the 1989 Option Plan (as
defined below) and upon the Effective Date, no further option shall be granted
under the 1989 Option Plan.
2. Definitions and Rules of Construction
(a) Definitions. For purposes of the Plan, the following terms
shall be defined as follows:
"1989 Option Plan" means the Company's 1989 Stock Option Plan,
as amended, which is intended to be replaced by the Plan.
"Administrator" means the Committee or the individual or
individuals to whom the Committee delegates authority under the Plan in
accordance with Section 3(d).
"Award Document" means a written document approved in
accordance with Section 3 that sets forth the terms and conditions of
the Stock Option granted to the Participant. An Award Document may be
in written, electronic or other media and may be in the form of (i) an
agreement between the Company that is executed by an officer on behalf
of the Company and is signed by the Participant or (ii) a certificate
issued by the Company that is executed by an officer on behalf of the
Company but does not require the signature of the Participant.
"Board" means the Board of Directors of the Company, including
any directors who may be Participants.
"Cause" means the termination of the Participant's employment
or consulting engagement, as the case may be, as a result of "Cause" as
such term or a similar term is defined in the employment agreement or
consulting agreement applicable to the Participant. If there is no such
employment agreement or consulting agreement or if such employment
agreement or consulting agreement contains no such term, "Cause" means
(A) an act or acts of dishonesty undertaken by such Participant, (B)
persistent failure to perform the duties and obligations of such
Participant, which failure is not remedied in a reasonable period of
time after receipt of written notice from Employer, (C) violation of
confidentiality or proprietary information obligations to or agreements
entered into with the Employer, (D) use, sale or distribution of
illegal drugs on the Employer's premises, (E) threatening, intimidating
or coercing or harassing fellow employees, or (F) the conviction of
such Participant of a felony.
"Change in Control" has the meaning assigned to it for
purposes of the employment agreement or consulting agreement, as the case may
be, applicable to the Participant. If no such employment agreement or consulting
agreement or if such agreement or consulting agreement contains no such term,
"Change in Control" means:
(i) Approval by the shareholders of the Company of (A) a
reorganization, merger, consolidation or other form of corporate
transaction or series of transactions, in each case, with respect to
which persons who were the shareholders of the Company immediately
prior to such reorganization, merger or consolidation or other
transaction do not, immediately thereafter, own more than 50% of the
combined voting power entitled to vote generally in the election of
directors of the reorganized, merged or consolidated company's then
outstanding voting securities, in substantially the same proportions as
their ownership immediately prior to such reorganization, merger,
consolidation or other transaction, or (B) a liquidation or dissolution
of the Company or (C) the sale of all or substantially all of the
assets of the Company (unless such reorganization, merger,
consolidation or other corporate transaction, liquidation, dissolution
or sale is subsequently abandoned);
(ii) Individuals who, as of the Effective Date of this Plan,
constitute the Board (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board, provided that any person
becoming a director subsequent to the Effective Date whose election, or
nomination for election by the Company's shareholders, was approved by
a vote of at least a majority of the directors then comprising the
Incumbent Board (other than an election or nomination of an individual
whose initial assumption of office is in connection with an actual or
threatened election contest relating to the election of the directors
of the Company) shall be, for purposes of this Plan, considered as
though such person were a member of the Incumbent Board; or
(iii) The acquisition (other than from the Company) by any
person, entity or "group", within the meaning of Section 13(d)(3) or
14(d)(2) of the Exchange Act, of beneficial ownership within the
meaning of Rule 13-d promulgated under the Exchange Act of more than
50% of either the then outstanding shares of the Common Stock or the
combined voting power of the Company's then outstanding voting
securities entitled to vote generally in the election of directors
(hereinafter referred to as the ownership of a "Controlling Interest")
excluding, for this purpose, any acquisitions by (1) the Company or a
Subsidiary, (2) any person, entity or "group" that as of the Effective
Date owns beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of a Controlling Interest or (3)
any employee benefit plan or the Company or a Subsidiary.
2
"Code" means the Internal Revenue Code of 1986, as amended,
and the applicable rulings and regulations (including any proposed
regulations) promulgated thereunder from time to time.
"Committee" means the committee of the Board, any successor
committee thereto or any other committee appointed from time to time by
the Board to administer the Plan. The Committee shall serve at the
pleasure of the Board and shall meet the requirements of Section 162(m)
of the Code and Section 16(b) of the Exchange Act; provided, however,
that the Board may perform any duties delegated to the Committee and in
such instances, any reference to the Board shall be deemed a reference
to the Committee.
"Common Stock" means the common stock, par value $0.01 per
share, of the Company or such other class of share or other securities
as may be applicable under Section 11(b) hereof.
"Company" means BE Aerospace, Inc., a Delaware corporation, or
any successor to all or substantially all of its business that adopts
the Plan.
"Consultant" means any person other than an Employee,
including an advisor, who provides services to the Company, its parent
or any Subsidiary, as applicable. The term Consultant also includes any
member of the Board or on the board of directors of any Subsidiary.
"Effective Date" means the date set forth in Section 4 of the
Plan.
"Eligible Individuals" means the Employees and Consultants.
"Employee" means any person employed by the Company, Company's
parent or any Subsidiary. A Participant shall not cease to be an
Employee in the case of (i) any leave of absence approved by the
Company or (ii) transfers between locations of the Company or between
the Company, its parent, any Subsidiary, or any successor. For purposes
of Incentive Stock Options, no such leave shall exceed ninety (90)
days, unless reemployment upon expiration of such leave is guaranteed
by statute or contract. If reemployment upon expiration of a leave of
absence approved by the Company is not so guaranteed, three months
after such ninety (90) day leave, any Incentive Stock Option held by
the Optionee shall cease to be treated as an Incentive Stock Option and
shall be treated for tax purposes as a Nonqualified Stock Option.
Neither service as a director nor payment of a director's fee by the
Company or a Subsidiary shall be sufficient to constitute "employment"
by the Company or a Subsidiary.
"Employer" means the Company, its parent, or a Subsidiary, as
applicable, that employs the particular Employee or engages the
services of a Consultant, as the case may be.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rulings and regulations promulgated thereunder from
time to time.
3
"Fair Market Value" means, with respect to a share of Common
Stock, the fair market value thereof as of the relevant date of
determination, as determined in accordance with a valuation methodology
approved by the Committee. In the absence of any alternative valuation
methodology approved by the Committee, the Fair Market Value of a share
of Common Stock shall equal the closing selling price of a share of
Common Stock as reported on the composite tape for securities listed on
the Nasdaq National Market ("NASDAQ"), or such other national
securities exchange as may be designated by the Committee, or, in the
event that the Common Stock is not listed for trading on a national
securities exchange but is quoted on an automated system, on such
automated system, in any such case on the valuation date (or, if there
were no sales on the valuation date, the average of the highest and the
lowest quoted selling prices as reported on said composite tape or
automated system for the most recent day during which a sale occurred).
"Incentive Stock Option" means a Stock Option which is an
"incentive stock option" within the meaning of Section 422 of the Code
and designated by the Committee as an Incentive Stock Option in an
Award Document.
"Nonqualified Stock Option" means a Stock Option which is not
an Incentive Stock Option.
"Participant" means an Eligible Individual to whom a Stock
Option has been granted under the Plan.
"Plan" means this BE Aerospace, Inc. 2001 Stock Option Plan,
as amended from time to time.
"Securities Act" means the Securities Act of 1933, as amended,
and the applicable rulings and regulations promulgated thereunder from
time to time.
"Stock Option" means an option to purchase shares of Common
Stock granted to an Eligible Individual pursuant to the terms of the
Plan.
"Subsidiary" means a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Code.
"Substitute Option" means a Stock Option granted upon
assumption of, or in substitution for, outstanding awards previously
granted by a company or other entity in connection with a corporate
transaction, such as a merger, combination, consolidation or
acquisition of property or stock.
(b) Rules of Construction. The masculine pronoun shall be
deemed to include the feminine pronoun and the singular form of a word shall be
deemed to include the plural form, unless the context requires otherwise. Unless
the text indicates otherwise, references to sections are to sections of the
Plan. In addition, it is the intent of the Company that transactions pursuant to
this Plan satisfy and be interpreted in a manner that satisfies the applicable
conditions for exemption under Rule 16b-3 promulgated under the Exchange Act
("Rule 16b-3") so that the granting of Stock Options, and the distribution of
shares of Common Stock pursuant to the
4
exercise of Stock Options, hereunder will be entitled to the benefits of Rule
16b-3 or other exemptive rules under Section 16 of the Exchange Act and will not
be subjected to avoidable liability thereunder. The Committee may, subject to
Section 13(g) hereof, grant Stock Options that would not qualify for exemption
under Section 16(b) of the Exchange Act, so long as the availability of any
exemption thereunder for other Participants under this Plan is not compromised.
3. Administration
(a) Power and Authority of the Committee. The Plan shall be
administered by the Committee. A majority of the members of the Committee shall
constitute a quorum, and all determinations of the Committee shall be made by a
majority of its members signed by a majority of the Committee members. The
Committee shall have full power and authority, subject to the express provisions
hereof:
(i) to select Participants from the Eligible Individuals;
(ii) to grant Stock Options in accordance with the Plan;
(iii) to determine the number of shares of Common Stock
subject to each Stock Option;
(iv) to determine the terms and conditions of each Stock
Option, including, without limitation, those related to vesting,
forfeiture, payment and exercisability, whether a Stock Option is an
Incentive Stock Option, and the effect, if any, of the termination of a
Participant's status as an Employee or Consultant of the Company, its
parent, or a Subsidiary, and including the authority to amend the terms
and conditions of a Stock Option after the granting thereof to a
Participant in a manner that is not, without the consent of the
Participant, prejudicial to the rights of such Participant in such
Stock Option;
(v) to specify and approve the provisions of the Award
Documents delivered to Participants in connection with their Stock
Options;
(vi) to construe and interpret any Award Document delivered
under the Plan;
(vii) to prescribe, amend and rescind rules and procedures
relating to the Plan;
(viii) to vary the terms of Stock Options to take account of
tax, securities law and other regulatory requirements of foreign
jurisdictions;
(ix) subject to the provisions of the Plan and subject to such
additional limitations and restrictions as the Committee may impose, to
delegate to one or more officers of the Company some or all of its
authority under the Plan;
(x) to employ such legal counsel, independent auditors and
consultants as it deems desirable for the administration of the Plan
and to rely upon any opinion or computation received therefrom;
5
(xi) to make all other determinations and to formulate such
procedures as may be necessary or advisable for the administration of
the Plan; and
(xii) subject to Section 12, both generally and in particular
instances, to waive compliance by a Participant with any obligation to
be performed by him or her under a Stock Option and to waive any
condition or provision of a Stock Option and to amend or cancel any
Stock Option (and if a Stock Option is cancelled, to grant a new Stock
Option on such terms as the Board shall specify) (nothing in this
Section 3(a)(xii) shall be construed as limiting the power of the
Committee to make adjustments required by Sections 9 and 11).
(b) Plan Construction and Interpretation. The Committee shall
have full power and authority, subject to the express provisions hereof, to
construe and interpret the Plan and to decide any questions and settle and
controversies and disputes that may arise in connection with the Plan.
(c) Determinations of Committee Final and Binding. All
determinations by the Committee in carrying out and administering the Plan and
in construing and interpreting the Plan shall be final, binding and conclusive
for all purposes and upon all persons interested herein.
(d) Delegation of Authority. The Committee may, but need not,
from time to time delegate some or all of its authority under the Plan to an
Administrator consisting of one or more members of the Committee or of one or
more officers of the Company; provided, however, that the Committee may not
delegate its authority (i) to grant Stock Options to Eligible Individuals who
are officers of the Company who are delegated authority by the Committee
hereunder, or (ii) under Sections 3(b) and 12 of the Plan. Any delegation
hereunder shall be subject to the restrictions and limits that the Committee
specifies at the time of such delegation or thereafter. Nothing in the Plan
shall be construed as obligating the Committee to delegate authority to an
Administrator, and the Committee may at any time rescind the authority delegated
to an Administrator appointed hereunder or appoint a new Administrator. At all
times, the Administrator appointed under this Section 3(d) shall serve in such
capacity at the pleasure of the Committee. Any action undertaken by the
Administrator in accordance with the Committee's delegation of authority shall
have the same force and effect as if undertaken directly by the Committee, and
any reference in the Plan to the Committee shall, to the extent consistent with
the terms and limitations of such delegation, be deemed to include a reference
to the Administrator.
(e) Liability of Committee. No member of the Committee shall
be liable for any action nor determination made in good faith, and the members
of the Committee shall be entitled to indemnification and reimbursement in the
manner provided in the Company's certificate of incorporation as it may be
amended from time to time. In the performance of its responsibilities with
respect to the Plan, the Committee shall be entitled to rely upon information
and advice furnished by the Company's officers, the Company's accountants, the
Company's counsel and any other party the Committee deems necessary, and no
member of the Committee shall be liable for any action taken or not taken in
reliance upon any such advice.
6
(f) Action by the Board. Anything in the Plan to the contrary
notwithstanding, any authority or responsibility which, under the terms of the
Plan, may be exercised by the Committee may alternatively be exercised by the
Board.
4. Effective Date and Term
The Plan shall become effective upon its adoption by the Board
subject to its approval by the stockholders of the Company. Prior to such
stockholder approval, the Committee may grant Stock Options conditioned on
stockholder approval. If such stockholder approval is not obtained at or before
the first annual meeting of stockholders to occur after the adoption of the Plan
by the Board (including any adjournment or adjournments thereof), the Plan and
any Stock Options granted thereunder shall terminate ab initio and be of no
further force and effect. In no event shall any Stock Options be granted under
the Plan after the tenth anniversary of the date of the Board's adoption of the
Plan.
5. Shares of Common Stock Subject to the Plan
(a) Basic Limitation. Subject to adjustment as provided in
Section 11 hereof, the aggregate number of shares of Common Stock that may be
issued pursuant to exercise of Stock Options under the Plan shall not exceed
650,000 shares plus any shares that are available for issuance or that become
available for issuance under the 1989 Option Plan (the "Plan Limit"). The number
of shares of Common Stock allocable to Substitute Options shall not count
against the Plan Limit.
(b) Special Limits. Anything to the contrary in Section 5(a)
above notwithstanding, the maximum aggregate number of shares of Common Stock
that may be subject to Stock Options granted to any Eligible Individual in any
fiscal year of the Company shall equal 350,000 shares plus any shares that were
available under this Section 5(b) for Stock Options to such Eligible Individual
in any prior fiscal year but which were not issued to such Eligible Individual.
Anything to the contrary in Sections 5(a) or 5(c) notwithstanding, the maximum
aggregate number of shares of Common Stock that may be issued upon the exercise
of Incentive Stock Options shall in no event exceed 650,000 shares (subject to
adjustment pursuant to Section 11).
(c) Additional Shares. In the event that any outstanding Stock
Option for any reason expires or is cancelled or otherwise terminated, the
shares of Common Stock allocable to the unexercised portion of such Stock Option
shall again be available for purposes of the Plan. In addition, the number of
shares of Common Stock tendered to pay the exercise price of a Stock Option or
to satisfy a Participant's tax withholding obligations shall be added back to
the Plan Limit and again be available for the grant of Stock Options.
(d) Shares to be Issued. Shares issued under this Plan may be
either authorized but unissued shares, treasury shares or any combination
thereof. No fractional shares of Common Stock shall be issued under the Plan.
7
6. Eligible Individuals
Stock Options may be granted by the Committee to Eligible
Individuals who, in the opinion of the Committee, are in the position to make a
significant contribution to the success of the Company or its Subsidiaries;
provided, however, that Consultants shall not be eligible to receive Incentive
Stock Options. An individual's status as an Administrator shall not, by itself,
affect his or her eligibility to participate in the Plan.
7. Terms and Conditions of Stock Options
(a) Terms of Stock Options Generally. A Stock Option shall
entitle the Participant to whom the Stock Option is granted the right to
purchase a specified number of shares of Common Stock during a specified period
at a price that is determined in accordance with Section 7(c) below. Stock
Options may be either Nonqualified Stock Options or Incentive Stock Options.
Except as expressly provided with respect to a specified Stock Option grant, no
Stock Option granted pursuant to the Plan shall be an Incentive Stock Option.
The Committee shall fix the vesting and exercisability conditions applicable to
a Stock Option. Stock Options may be granted in combination with, in replacement
for, or as alternatives to grants of rights under the Plan or any other employee
compensation plan of the Company, including the plan of any acquired entity, or
may be granted in satisfaction of the Company's obligations under any such plan.
(b) Terms Set Forth in Award Document. The terms and
conditions of a Stock Option shall be set forth in an Award Document approved by
the Committee and delivered or made available to the Participant as soon as
administratively practicable following the date of such Stock Option. Except as
provided in Section 7 hereof, the vesting, exercisability, payment and other
restrictions applicable to a Stock Option (which may include, without
limitation, restrictions on transferability or provision for mandatory resale to
the Company) shall be determined by the Committee and set forth in the
applicable Award Document. Notwithstanding the terms and conditions set forth in
the Award Document, the Committee may accelerate the date on which any Stock
Option first becomes exercisable.
(c) Exercise Price. The exercise price per share of Common
Stock purchasable under a Stock Option shall be fixed by the Committee at the
time of grant or, alternatively, shall be determined by a method specified by
the Committee at the time of grant; provided that, subject to Section 7(e), the
exercise price per share of Common Stock under a Stock Option shall be equal to
at least 100% of the Fair Market Value on the date of grant of the shares of
Common Stock subject to the Stock Option. Notwithstanding the foregoing, the
exercise price per share of a Stock Option that is a Substitute Option may be
less than the Fair Market Value per share on the date of award, provided that
the excess of:
(i) the aggregate Fair Market Value (as of the date such
Substitute Option is granted) of the shares of Common Stock subject to
the Substitute Option, over
(ii) the aggregate exercise price thereof, does not exceed the
excess of:
(iii) the aggregate fair market value (as of the time
immediately preceding the transaction giving rise to the Substitute
Option, such fair market value to be determined
8
by the Committee) of the shares of the predecessor entity that were
subject to the award assumed or substituted for by the Company, over
(iv) the aggregate exercise price of such shares.
(d) Option Term. The term of each Stock Option shall be fixed
by the Committee and, subject to Sections 3(a)(viii) and 7(e) hereof, shall not
exceed ten years from the date of grant.
(e) Incentive Stock Options. Each Stock Option granted
pursuant to the Plan shall be designated at the time of grant as either an
Incentive Stock Option or as a Nonqualified Stock Option. No Incentive Stock
Option may be issued pursuant to the Plan to any individual who, at the time the
Stock Option is granted, owns stock possessing more than 10% of the total
combined voting power of all classes of stock of the Company or any of its
Subsidiaries, unless (A) the exercise price determined as of the date of grant
is at least 110% of the Fair Market Value on the date of grant of the shares of
Common Stock subject to such Stock Option, and (B) the Incentive Stock Option is
not exercisable more than five years from the date of grant thereof. No
Incentive Stock Option may be granted under the Plan after the tenth anniversary
of the adoption of the Plan by the Board. To the extent that the aggregate Fair
Market Value of the shares of Common Stock with respect to which Incentive Stock
Options are exercisable for the first time by a Participant during any calendar
year (under all plans of the Company and any parent or Subsidiary) exceeds
$100,000, the excess Stock Options shall be treated as Nonqualified Stock
Options. For purposes of this Section, Incentive Stock Options shall be taken
into account in the order in which they were granted. The Fair Market Value of
the shares of Common Stock shall be determined as of the time the Stock Option
with respect to such shares is granted.
(f) Exercisability of Stock Option. Unless the Committee at
the time of grant otherwise specifies in the case of a particular Stock Option
and except as provided in Sections 9 and 11(c) hereof, a Stock Option shall be
exercisable from and after the date of grant for 25% of the total number of
shares of Common Stock subject to the Stock Option, and shall become exercisable
for an additional 25% of the total number of shares subject to the Stock Option
on each of the first, second and third anniversaries of the date of grant. If
the number of shares of Common Stock for which the Stock Option is exercisable
at any time in accordance with this Section 7(f) includes a fractional share,
the number of shares of which the Stock Option is then exercisable shall be
rounded to the nearest whole share. Notwithstanding the foregoing, in the case
of a Stock Option not immediately exercisable in full, the Committee may at any
time accelerate the time at which all or any part of the Stock Option may be
exercised.
8. Exercise of Stock Options
(a) Method of Exercise. Any exercise of a Stock Option shall
be in writing, signed by the proper person and delivered or mailed to the
Company, accompanied by (i) any documents required by the Committee and (ii)
payment in full as specified below in Section 8(b) for the number of shares of
Common Stock for which the Stock Option is exercised. If a Stock Option is
exercised by the executor or administrator of a deceased Participant, or by the
person or persons to whom the Stock Option has been transferred by the
Participant's will or the
9
applicable laws of descent and distribution or pursuant to Section 10(a), the
Company shall be under no obligation to deliver Common Stock pursuant to such
exercise until the Company is satisfied as to the authority of the person or
persons exercising the Stock Option.
(b) Payment for and Delivery of Stock. Common Stock purchased
under the Plan shall be paid for as follows: (i) in cash or by personal check,
certified check, bank draft, money order or wire transfer payable to the order
of the Company or (ii) if so permitted by the Committee (which, in the case of
an Incentive Stock Option, shall specify such method of payment at the time of
grant), (A) through the delivery of shares of Common Stock (which, in the case
of Common Stock acquired from the Company, shall have been held for at least six
months) having a Fair Market Value on the last business day preceding the date
of exercise equal to the purchase price, (B) by having the Company hold back
from the shares transferred upon exercise Common Stock having a fair market
value on the last business day preceding the date of exercise equal to the
purchase price, (C) by delivery of an unconditional and irrevocable undertaking
by a broker to deliver promptly to the Company sufficient funds to pay the
exercise price or (D) by any combination of the permissible forms of payment.
9. Termination, Death, Disability of Participant
(a) Termination as Employee or Consultant.
(i) If a Participant ceases to be an Employee or Consultant
for any reason other than death, disability or for Cause, the
Participant may exercise his or her Stock Option within such period as
is specified in the Award Document (but in no event later than the
expiration of the term of such Stock Option as set forth in the Award
Document) but only to the extent that the Stock Option is vested on the
date of cessation of service. The date of a Participant's cessation of
service as an Employee or Consultant for any reason shall be determined
in the sole discretion of the Committee. In the absence of a specified
time in the Award Document, the Stock Option shall remain exercisable
for three (3) months following the Participant's cessation of service
as an Employee or Consultant (but in no event later than the expiration
of the term of such Stock Option as set forth in the Award Document)
but only to the extent that the Stock Option is vested on the date of
cessation of service and then terminate, unless otherwise provided in
this Plan. Notwithstanding the foregoing, if a Participant ceases to be
an Employee for any reason other than death, disability or for Cause,
(A) and such Participant has been employed by the Company or any
Subsidiary for a period of ten years or more, or (B) the Participant
ceases to be an Employee by virtue of becoming an employee of an entity
that was spun-out of the Company (or similar corporate transaction),
each Stock Option held by the Participant immediately prior to ceasing
to be an Employee shall remain exercisable, to the extent it was
exercisable on the date such Participant ceases to be an Employee,
until the expiration of the term of such Stock Option; provided,
however, that if the Committee determines in good faith that the
Participant has engaged in conduct that is harmful to the Company
either in the course of such employee's employment or subsequently or
in connection with the termination of employment, then each Stock
Option held by the Participant shall terminate forthwith; and provided
further that the Board may provide in any Award Document that upon such
Participant's cessation of service as an Employee for any reason other
than death, disability or for Cause,
10
regardless of the number of years such Participant has been employed,
each Stock Option held by the Participant immediately prior to such
employment termination may be exercised, to the extent it was
exercisable on the date the Participant ceased to be an Employee, at
any time during the three-month period commencing on the date the
Participant ceases to be an Employee (but in no event later than the
expiration of the term of such Stock Option as set forth in the Award
Document).
(ii) In the event that a Participant ceases to be an Employee
or Consultant for Cause, each Stock Option held by such Participant
immediately prior to such cessation of service shall terminate
forthwith. If, on the date of cessation of service, the Participant is
not vested as to his or her entire Stock Option, the shares covered by
the unvested portion of the Stock Option shall revert to the Plan. If,
after cessation of service, the Participant does not exercise the
vested portion of his or her Stock Option within the period of time as
is specified in the Award Document (or this Plan, if not specified in
the Award Document), the shares covered by such vested portion of the
Stock Option shall revert to the Plan.
(b) Disability of Participant. If a Participant ceases to be
an Employee or Consultant as a result of the Participant's disability (as
defined in Section 22(e)(3) of the Code), the Participant may exercise his or
her Stock Option within such period as is specified in the Award Document (but
in no event later than the expiration of the term of such Stock Option as set
forth in the Award Document) but only to the extent the Stock Option is vested
on the date the Participant ceases to be an Employee or Consultant. In the
absence of a specified period in the Award Document, the Stock Option shall
remain exercisable during the period commencing on the date of cessation of
service and ending on the first anniversary thereof. If, on the date of
cessation of service, the Participant is not vested as to his or her entire
Stock Option, the shares covered by the unvested portion of the Stock Option
shall revert to the Plan unless otherwise provided in the Award Document. If,
after the Participant's cessation of service, the Participant does not exercise
the vested portion of his or her Stock Option within the period of time
specified above, the shares covered by such vested portion of the Stock Option
shall revert to the Plan.
(c) Death of Participant. If a Participant dies while an
Employee or Consultant, the Stock Option may be exercised within such period as
is specified in the Award Document (but in no event later than the expiration of
the term of such Stock Option as set forth in the Award Document) but only to
the extent the Stock Option is vested on the date of death. In the absence of a
specified period in the Award Document, the Stock Option shall remain
exercisable during the period commencing on the death of the Participant and
ending on the third anniversary of the death of the Participant (but in no event
later than the expiration of the term of such Stock Option as set forth in the
Award Document) but only to the extent that the Stock Option is vested on the
date of death. The Stock Option may be exercised by the executor or
administrator of the Participant's estate or, if none, by the person(s) entitled
to exercise the Stock Option under the Participant's will or the laws of descent
or distribution or pursuant to Section 10 hereof. If, at the time of death, the
Participant is not vested as to his or her entire Stock Option, the shares
covered by the unvested portion of the Stock Option shall immediately revert to
the Plan unless otherwise provided in the Award Document. If, after the
Participant's death, the
11
vested portion of the Stock Option is not exercised within the period specified
above, the shares covered by such vested portion of the Stock Option shall
revert to the Plan.
10. Certain Restrictions
(a) Transfers. No Option shall be assignable or transferable
except by will or by the laws of descent and distribution or pursuant to a
domestic relations order; provided, however, that the Committee may, subject to
such terms and conditions as the Committee shall specify in its sole discretion,
permit the transfer of an Option (i) to a Participant's family members, (ii) to
one or more trusts established in whole or in part for the benefit of one or
more of such family members, (iii) to one or more entities which are owned in
whole or in part by one or more such family members or (iv) to any other
individual or entity permitted under law and the rules of NASDAQ or any other
national securities exchange on which the Common Stock is listed.
(b) Exercise. During the lifetime of the Participant, a Stock
Option shall be exercisable only by the Participant or by a permitted transferee
to whom such Stock Option has been transferred in accordance with Section 10(a).
After the death of a Participant, a Stock Option may be exercisable by that
Participant's personal representatives, heirs or legatees.
11. Recapitalization and Corporate Transactions
(a) Authority of the Company and Stockholders. The existence
of the Plan, the Award Documents and the Stock Options granted hereunder shall
not affect or restrict in any way the right or power of the Company or the
stockholders of the Company to make or authorize any adjustment,
recapitalization, reorganization or other change in the Company's capital
structure or its business, any merger or consolidation of the Company, any issue
of stock or of options, warrants or rights to purchase stock or of bonds,
debentures, preferred or prior preference stocks whose rights are superior to or
affect the Common Stock or the rights thereof or which are convertible into or
exchangeable for Common Stock, or the dissolution or liquidation of the Company,
or any sale or transfer of all or any part of its assets or business, or any
other corporate act or proceeding, whether of a similar character or otherwise.
(b) Change in Capitalization. Notwithstanding any provision of
the Plan or any Award Document, the number and kind of shares authorized for
issuance under Section 5(a) above, including the maximum number of shares
available under the special limits provided for in Section 5(c) above, may be
equitably adjusted in the sole discretion of the Committee in the event of a
stock split, stock dividend, recapitalization, reorganization, merger,
consolidation, extraordinary dividend, split-up, spin-off, combination, exchange
of shares, warrants or rights offering to purchase Common Stock at a price
substantially below Fair Market Value or other similar corporate event affecting
the Common Stock in order to preserve, but not increase, the benefits or
potential benefits intended to be made available under the Plan. In addition,
upon the occurrence of any of the foregoing events, the number of outstanding
Stock Options and the number and kind of shares subject to any outstanding Stock
Option and the purchase price per share, if any, under any outstanding Stock
Option may be equitably adjusted (including by payment of cash to a Participant)
in the sole discretion of the Committee in order to preserve the benefits or
potential benefits intended to be made available to Participants granted Stock
12
Options. Such adjustments shall be made by the Committee, whose determination as
to what adjustments shall be made, and the extent thereof, shall be final.
Unless otherwise determined by the Committee, such adjusted Stock Options shall
be subject to the same vesting schedule and restrictions to which the underlying
Stock Option is subject.
(c) Change in Control. Except as otherwise specified in the
applicable Award Document or in a Participant's employment agreement, in the
event of a Change in Control, the Board or the Committee shall provide, in its
discretion, for either of the following:
(i) the Participant to be fully vested in and have the right
to exercise the Stock Option as to all of the Common Stock, including
shares as to which he would not otherwise be vested or exercisable; or
(ii) each outstanding Stock Option to be assumed or an
equivalent option or award substituted by the successor corporation or
a parent or subsidiary of the successor corporation.
If a Stock Option becomes fully vested and exercisable pursuant to this Section
11(c), then the Committee shall notify the Participant in writing or
electronically of the change in the Stock Option and that the Stock Option shall
terminate twenty (20) days from the date of such notice (to the extent
applicable). For the purposes of this Section 11(c), the Stock Option shall be
considered assumed if, following the merger or sale of assets, the award confers
the right to purchase or receive on the same terms and conditions as the Stock
Option, for each share of Common Stock subject to the Stock Option immediately
prior to the Change in Control, the consideration (whether stock, cash, or other
securities or property) received in the Change in Control by holders of Common
Stock for each share held on the effective date of the transaction (and if
holders were offered a choice of consideration, the type of consideration chosen
by the holders of a majority of the outstanding shares); provided, however, that
if such consideration received in the Change in Control is not solely common
stock of the successor corporation or its parent, the Committee may, with the
consent of the successor corporation, provide for the consideration to be
received upon the exercise of the Stock Option, for each share of Common Stock
subject to the Stock Option, to be solely common stock of the successor
corporation or its parent equal in fair market value to the per share
consideration received by holders of Common Stock in the Change in Control.
(d) Substitute Options. The Committee may grant Substitute
Options under the Plan in substitution for options held by employees,
consultants or advisers of another corporation who concurrently become
employees, consultants or advisers of the Company or a Subsidiary as the result
of a merger or consolidation of that corporation with the Company or a
Subsidiary, or as the result of the acquisition by the Company or a Subsidiary
of property or stock of that corporation. The Company may direct that Substitute
Options be granted on such terms and conditions as the Committee considers
appropriate in the circumstances.
12. Amendments; Termination
The Board may at any time discontinue granting options under
the Plan. The Board may at any time or times amend the Plan or any outstanding
option for the purpose of
13
satisfying the requirements of section 422 of the Code or of any changes in
applicable laws or regulations or for any other purpose that may at the time be
permitted by law, or may at any time terminate the Plan as to any further grants
of options; provided, however, that (except to the extent expressly required or
permitted herein above) no such amendment shall, without the approval of the
shareholders of the Company if such stockholder approval is required by then
current law, (a) increase the maximum number of shares available under the Plan,
(b) change the definition of Eligible Individuals or otherwise change the
eligibility requirements for participating in the Plan, (c) decrease the
Exercise Price at which Incentive Stock Options may be granted, (d) extend the
time within which Stock Options may be granted, (e) alter the Plan in any manner
that would disqualify the status of Incentive Stock Options granted under the
Plan, (f) amend the provisions of this Section 12, and no such amendment shall
adversely affect the rights of any participant (without his or her consent)
under any Stock Option previously granted; and provided further that no such
amendment shall reduce the exercise price of any Stock Option previously granted
hereunder. Notwithstanding any provision herein or in any Award Document to the
contrary, the Board or the Committee shall have the broad authority to amend the
Plan or any Stock Option under the Plan to take into account changes in
applicable tax laws, securities laws, accounting rules and other applicable
state and federal laws.
13. Miscellaneous Provisions
(a) Tax Withholding. If the Employer shall be required to
withhold any amounts by reason of any federal, state or local tax rules or
regulations in respect of the issuance of shares of Common Stock pursuant to the
exercise of a Stock Option, the Employer shall be entitled to deduct and to
withhold such amount from any cash payments to be made to the Participant. In
any event, the Participant shall either (i) make available to the Employer,
promptly when requested by the Employer, sufficient funds or, if the Committee
so provides, shares of Common Stock (valued at Fair Market Value as of the date
the withholding tax obligation arises (the "Tax Date")), to meet the
requirements of such withholding, or (ii) unless disallowed by the Committee,
irrevocably authorize the Employer to withhold from the shares of Common Stock
otherwise issuable to the Participant as a result of such exercise a number of
shares of Common Stock having a Fair Market Value as of the Tax Date which
alone, or when added to funds paid or shares of Common Stock delivered to the
Company by the Participant, equal to the amount of the minimum withholding tax
obligation (the "Withholding Election") and the Company shall be entitled to
take and authorize such steps as it may deem advisable in order to have such
funds or shares of Common Stock made available to the Employer out of any funds
or property due or to become due to the Participant. A Participant's Withholding
Election may only be made prior to the Tax Date and may be disapproved by the
Committee. The Committee may establish such rules and procedures, including,
without limitation, any rules or procedures necessary to comply with Rule 16b-3
of the Exchange Act or Section 162(m) of the Code, as it may deem necessary or
advisable in connection with the withholding of taxes relating to the exercise
of any Stock Option.
(b) No Right to Grants or Employment. No Eligible Individual
or Participant shall have any claim or right to receive grants of Stock Options
under the Plan or any other benefit plan of the Company or to adopt other plans
or arrangements under which Common Stock may be issued. Nothing in the Plan or
in any Stock Option or Award Document shall confer upon any Employee any right
to continued employment with Employer or interfere in any
14
way with the right of Employer to terminate the employment of any of its
employees at any time, with or without cause.
(c) Rights of Stockholder. A Participant shall not have the
rights of a shareholder with regard to Stock Options under the Plan except as to
Common Stock actually received by the Participant under the Plan. No adjustment
shall be made for dividends or other rights for which the record date is prior
to the date except as provided in Section 11(b).
(d) Other Compensation. Nothing in this Plan shall preclude or
limit the ability of the Employer to pay any compensation to a Participant under
the Employer's other compensation and benefit plans and programs.
(e) Other Employee Benefit Plans. Payments received by a
Participant under any Stock Option made pursuant to the Plan shall not be
included in, nor have any effect on, the determination of benefits under any
other employee benefit plan or similar arrangement provided by the Employer,
unless otherwise specifically provided for under the terms of such plan or
arrangement or by the Committee.
(f) Unfunded Plan. The Plan is intended to constitute an
unfunded plan for incentive compensation. Prior to the payment or settlement of
any Stock Option, nothing contained herein shall give any Participant any rights
that are greater than those of a general creditor of the Company. In its sole
discretion, the Committee may authorize the creation of trusts or other
arrangements to meet the obligations created under the Plan to deliver Common
Stock or payments in lieu thereof with respect to awards hereunder.
(g) Securities Law Restrictions and Compliance with Law. The
Committee may require each Participant purchasing or acquiring shares of Common
Stock pursuant to a Stock Option under the Plan to represent to and agree with
the Company in writing that such Participant is acquiring the shares for
investment and not with a view to the distribution thereof. All certificates for
shares of Common Stock delivered under the Plan shall be subject to such
stock-transfer orders and other restrictions as the Committee may deem advisable
under the rules, regulations, and other requirements of the Securities and
Exchange Commission, any exchange upon which the Common Stock is then listed,
and any applicable federal or state securities law, and the Committee may cause
a legend or legends to be put on any such certificates to make appropriate
reference to such restrictions. No shares of Common Stock shall be issued
hereunder unless (i) the Company shall have determined that such issuance is in
compliance with, or pursuant to an exemption from, all applicable federal and
state securities laws, (ii) in the case that the outstanding Common Stock is at
the time listed on any stock exchange, the shares of Common Stock to be
delivered have been listed or authorized to be listed on such exchange upon
official notice of issuance, and (iii) all other legal matters in connection
with the issuance and delivery of such shares have been approved by the
Company's counsel. Notwithstanding any provision of the Plan or any Award
Document to the contrary, no Stock Option shall be granted or exercised at any
time when such Stock Option or the granting or exercise thereof or payment
therefore may result in the violation of any law or governmental order or
regulation.
15
(h) Compliance with Section 16(b) of Exchange Act.
Notwithstanding anything contained in the Plan or in any Award Document to the
contrary, if the consummation of any transaction under the Plan would result in
the possible imposition of liability on a Participant pursuant to Section 16(b)
of the Exchange Act, the Committee shall have the right, in its sole discretion,
but shall not be obligated, to defer such transaction or the effectiveness of
such action to the extent necessary to avoid such liability, but in no event for
a period longer than six months.
(i) Award Document. In the event of any conflict or
inconsistency between the Plan and any Award Document, the Plan shall govern,
and the Award Document shall be interpreted to minimize or eliminate any such
conflict or inconsistency.
(j) Expenses. The costs and expenses of administering the Plan
shall be borne by the Company.
(k) Application of Funds. The proceeds received from the
Company from the sale of Common Stock or other securities pursuant to Stock
Options will be used for general corporate purposes.
(l) Deferral. The Committee may, in its discretion and as
provided in the applicable Award Document, permit a Participant to defer receipt
of the shares underlying a Stock Option upon exercise pursuant to the terms of
any deferred compensation plan maintained by the Company.
(m) Applicable Law. Except as to matters of federal law, the
Plan and all actions taken thereunder shall be governed by and construed in
accordance with the laws of the State of Florida without giving effect to
conflicts of law principles.
16
EX-4.6
4
ex4-6tofs8_091901final.txt
NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
EXHIBIT 4.6
BE AEROSPACE, INC.
2001 NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
BE AEROSPACE, INC.
2001 NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
1. Purpose Of The Plan
The purpose of the Plan is to advance the interests of the Company by
enhancing the ability of the Company to attract and retain Non-Employee
Directors who are in a position to make significant contributions to the success
of the Company and by rewarding directors for such contributions through
ownership of shares of Common Stock. The Plan is intended to comply with the
terms and provisions of Rule 16b-3 promulgated under the Exchange Act. Any
provision of the Plan or any Award Document inconsistent with the terms of such
Rule in effect shall be inoperative and shall not affect the validity of the
Plan, such Award Document or any other provision thereof.
The Plan is intended to replace the Company's 1991 Director's Stock
Option Plan (the "1991 Plan") and upon the Effective Date, no further option
grants shall be made under the 1991 Plan.
2. Definitions and Rules of Construction
(a) Definitions. For purposes of the Plan, the following terms shall
have the meanings set forth below:
"Administrator" means a committee of the Board, the Board or any
executive officer or officers of the Company designated by the Board.
"Award Document" means a written document approved in accordance with
Section 6 that sets forth the terms and conditions of the Option granted to
the Participant. An Award Document may be in written, electronic or other
media and may be in the form of (i) an agreement between the Company that
is executed by an officer on behalf of the Company and is signed by the
Participant or (ii) a certificate issued by the Company that is executed by
an officer on behalf of the Company but does not require the signature of
the Participant.
"Beneficiary" means the person designated in writing by the
Participant to exercise or to receive an Option in the event of the
Participant's death or, if no such person has been designated in writing by
the Participant prior to the date of death, the Participant's estate. No
Beneficiary designation under the Plan shall be effective unless it is in
writing and is received by the Company prior to the date of death of the
applicable Participant.
"Board" means the Board of Directors of the Company, including any
directors who may be Participants.
"Cause" means:
1
(i) gross negligence or willful misconduct in the execution of the
director's duties;
(ii) willful and continued failure to substantially perform the duties
required of the director as a director of the Company; provided, however,
that Cause shall not exist unless the Board shall have first provided the
director with written notice of such failure and the director shall have
failed to remedy such failure within 15 days following the giving of such
notice, or, if such failure is not susceptible to remedy within a period of
15 days, the director shall have failed to take all reasonable steps within
such 15-day period following the giving of such notice to remedy such
failure;
(iii) conviction of, or a plea by the director of nolo contendere to,
a felony involving dishonesty or moral turpitude; or
(iv) use of alcohol or drugs (except to the extent that the use of
drugs arises from a physical or mental illness) on an ongoing basis to an
extent that it materially interferes with the performance of the director's
duties as a director.
"Change of Control" means:
(i) Any Person becomes the "beneficial owner" (as defined in Rule
13d-3 promulgated under the Exchange Act) of securities of the Company
representing more than 30% of the combined voting power of the Company's
then-outstanding securities (other than as a result of acquisitions of such
securities from the Company);
(ii) There is a change of control of the Company of a kind which would
be required to be reported under Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Exchange Act (or a similar item in a similar
schedule or form), whether or not the Company is then subject to such
reporting requirements;
(iii) The Company's shareholders approve a merger, consolidation, or
other reorganization (other than (A) a merger, consolidation or other
reorganization which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent, either by
remaining outstanding or by being converted into voting securities of the
surviving entity, more than 50% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately
after such merger, consolidation or other reorganization, or (B) a merger,
consolidation, or other reorganization effected to implement a
recapitalization of the Company, or similar transaction, in which no Person
acquires more than 20% of the combined voting power of the Company's then
outstanding securities);
(iv) The Company's shareholders approve a sale of all or substantially
all of the assets of the Company; or
(v) Individuals who, at the Effective Date, constitute the Board cease
for any reason to constitute a majority thereof; provided, however, that
any director who is not in office at the Effective Date but whose election
by the Board or whose nomination for election by the Company's shareholders
was approved by a vote of at least a majority of
2
the directors then still in office who either were directors at the
Effective Date or whose election or nomination for election was previously
so approved (other than an election or nomination of an individual whose
initial assumption of office is in connection with an actual or threatened
election contest relating to the election of the directors of the Company)
shall be deemed to have been in office at the Effective Date for purposes
of this definition.
"Code" means the Internal Revenue Code of 1986, as amended and the
applicable rulings and regulations (including any proposed regulations)
promulgated thereunder from time to time.
"Common Stock" means the common stock, par value $.01 per share, of
the Company or such other class of share or other securities as may be
applicable under Section 9(b).
"Company" means BE Aerospace, Inc., a Delaware corporation, or any
successor to all or substantially all of its business that adopts the Plan.
"Date of Grant" means the date on which a Non-Employee Director is
first elected to the Board.
"Effective Date" means the date set forth in Section 16 of the Plan.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder from time to time.
"Fair Market Value" means, with respect to a share of Common Stock,
the fair market value thereof as of the relevant date of determination, as
determined in accordance with a valuation methodology approved by the
Board. In the absence of any alternative valuation methodology approved by
the Board, the Fair Market Value of a share of Common Stock shall equal the
closing selling price of a share of Common Stock as reported on the
composite tape for securities listed on the Nasdaq National Market
("NASDAQ"), or such other national securities exchange as may be designated
by the Committee, or, in the event that the Common Stock is not listed for
trading on a national securities exchange but is quoted on an automated
system, on such automated system, in any such case on the valuation date
(or, if there were no sales on the valuation date, the average of the
highest and the lowest quoted selling prices as reported on said composite
tape or automated system for the most recent day during which a sale
occurred).
"Non-Employee Director" means a director of the Company who is not an
officer or employee of the Company or any Subsidiary and who is not a
participant under any equity-based compensation plan maintained by the
Company or any Subsidiary.
"Option" means an option to purchase Common Stock granted by the
Company pursuant to the terms of this Plan.
"Participant" means a Non-Employee Director who has been granted an
Option under this Plan.
3
"Person" means any person, entity or "group" within the meaning of
Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, except that such
term shall not include (i) the Company or any of its Subsidiaries, (ii) a
trustee or other fiduciary holding securities under an employee benefit
plan of the Company or any of its Subsidiaries, (iii) a corporation owned,
directly or indirectly, by the shareholders of the Company in substantially
the same proportions as their ownership of stock of the Company.
"Plan" means this BE Aerospace, Inc. 2001 Non-Employee Directors Stock
Option Plan, as amended from time to time.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder from time to time.
"Subsidiary" means a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Code.
(b) Rules of Construction. The masculine pronoun shall be deemed to
include the feminine pronoun and the singular form of a word shall be deemed to
include the plural form, unless the context requires otherwise. Unless the text
indicates otherwise, references to sections are to sections of the Plan. In
addition, it is the intent of the Company that transactions pursuant to this
Plan satisfy and be interpreted in a manner that satisfies the applicable
conditions for exemption under Rule 16b-3 promulgated under the Exchange Act
("Rule 16b-3") so that the granting of Options, and the distribution of shares
of Common Stock pursuant to the exercise of Options, hereunder will be entitled
to the benefits of Rule 16b-3 or other exemptive rules under Section 16 of the
Exchange Act and will not be subjected to avoidable liability thereunder. The
Administrator may, subject to Section 13(g) hereof, grant Options that would not
qualify for exemption under Section 16(b) of the Exchange Act, so long as the
availability of any exemption thereunder for other Participants under this Plan
is not compromised.
3. Administration
(a) Power and Authority of the Administrator. Subject to the
provisions of Section 16 hereof, the Administrator shall have authority to
interpret the provisions of the Plan and the Award Documents, to establish such
rules and procedures as may be necessary or advisable to administer the Plan and
to make all determinations necessary or advisable for the administration of the
Plan (including, without limitation, to waive compliance by a Participant with
any obligation to be performed by him or her under an Option, to waive any
condition or provision of an Option and to amend or cancel an Option); provided,
however, that no such interpretation or determination shall change or affect the
selection of persons eligible to receive grants under the Plan, the number of
shares covered by or the timing of any grant of Options under the Plan or the
terms and conditions thereof. The interpretation and construction by the
Administrator of any provision of the Plan or of any Award Document shall be
final and conclusive.
(b) Liability of Administrator. No Administrator shall be liable for
any action nor determination made in good faith, and each Administrator shall be
entitled to indemnification and reimbursement in the manner provided in the
Company's certificate of incorporation as it
4
may be amended from time to time. In the performance of its responsibilities
with respect to the Plan, each Administrator shall be entitled to rely upon
information and advice furnished by the Company's officers, the Company's
accountants, the Company's counsel and any other party the Administrator deems
necessary, and no Administrator shall be liable for any action taken or not
taken in reliance upon any such advice.
4. Shares of Common Stock Subject to the Plan.
(a) Plan Limit. Subject to adjustment as provided in Section 9 hereof,
the aggregate number of shares of Common Stock that may be delivered upon
exercise of Options granted under the Plan shall be (i) 100,000 shares of Common
Stock plus (ii) any shares that are available for issuance or that become
available for issuance under the 1991 Plan (the "Plan Limit"). Such shares may
be authorized but unissued shares of Common Stock or reacquired shares of Common
Stock held in the treasury of the Company. No fractional shares of Common Stock
shall be issued under the Plan.
(b) Rules Applicable to Determining Shares Available for Issuance. For
purposes of determining the number of shares of Common Stock that remain
available for issuance, if any outstanding Option expires for any reason or is
cancelled or otherwise terminated prior to the expiration date of the Plan as
set forth in Section 14, the shares of Common Stock allocable to any unexercised
portion of such Option shall again be available for purposes of the Plan. In
addition, the number of shares of Common Stock tendered to pay the exercise
price of an Option or to satisfy a Participant's tax withholding obligations
shall be added back to the Plan Limit and again be available for the grant of
Options.
5. Eligibility
Options shall be granted pursuant to the provisions hereof to persons
who are Non-Employee Directors at the time of grant.
6. Terms and Conditions of Options
(a) General. The terms and conditions of each Option grant shall be
set forth in an Award Document for such Option grant, which shall contain terms
and conditions not inconsistent with the Plan. Except in connection with a
transaction or event described in Section 9(b), nothing in the Plan shall be
construed as permitting the Company to reduce the exercise price of Options
previously granted under this Plan or options previously granted under any other
plan of the Company without Board approval.
(b) Grant. Subject to Section 5(a), each Non-Employee Director whose
initial term commences after the Effective Date shall be granted an Option to
purchase 35,000 shares of Common Stock. In addition, each Non-Employee Director
shall be awarded an Option covering 5,000 shares of Common Stock on December 15,
2001 and on each December 15th thereafter.
(c) Manner, Time and Medium of Payment. An Option shall be exercised
in the manner set forth in the Award Document relating thereto and payment in
full of the exercise price for all shares of Common Stock shall be made at the
time of exercise. The exercise price
5
for each Option shall be 100% of the Fair Market Value of a share of Common
Stock on the Date of Grant. Payment shall be in United States dollars in the
form of (i) cash or personal check, certified bank check, bank draft, money
order or wire transfer payable to the order of the Company, (ii) to the extent
provided by the Administrator, at or after the Date of Grant, in shares of
Common Stock already owned and held by the Participant for at least six months
prior to the date of exercise having a Fair Market Value on the date of exercise
equal to the purchase price, (iii) to the extent provided by the Administrator,
at or after the Date of Grant, by having the Company hold back from the shares
of Common Stock transferred upon exercise, shares of Common Stock having a Fair
Market Value on the last business day preceding the date of exercise equal to
the exercise price, (iv) by delivery of an unconditional and irrevocable
undertaking by a broker to deliver promptly to the Company sufficient funds to
pay the exercise price or (v) any combination of such methods of payment or in
any combination of cash and shares of Common Stock held by the Participant.
Unless terminated earlier pursuant to this Plan, an Option shall be effective
for ten years following the Date of Grant of such Option.
(d) Transfers. No Option shall be assignable or transferable except by
will or by the laws of descent and distribution or pursuant to a domestic
relations order; provided, however, that the Administrator may, subject to such
terms and conditions as the Administrator shall specify in its sole discretion,
permit the transfer of an Option (i) to a Participant's family members, (ii) to
one or more trusts established in whole or in part for the benefit of one or
more of such family members, (iii) to one or more entities which are owned in
whole or in part by one or more such family members or (iv) to any other
individual or entity permitted under law and the rules of NASDAQ or any other
national securities exchange on which the Common Stock is listed. During the
lifetime of the Participant, an Option shall be exerciseable only by the
Participant or by a permitted transferee to whom such Option has been
transferred in accordance with this Section 6(d). After the death of a
Participant, an Option may be exerciseable by that person's representative,
heirs or legatees.
(e) Rights of a Stockholder. A Participant shall have no rights as a
stockholder with respect to shares of Common Stock covered by an Option until
the date the Participant or his nominee becomes the holder of record of such
shares. No adjustment shall be made for dividends or other rights for which the
record date is prior to such date, except as provided in Section 9(b).
(f) Limitation on Exercise. The Administrator may require each
Participant purchasing or acquiring shares of Common Stock pursuant to an Option
under the Plan to represent to and agree with the Company in writing that such
Participant is acquiring the shares for investment and not with a view to the
distribution thereof. All certificates for shares of Common Stock delivered
under the Plan shall be subject to such stock-transfer orders and other
restrictions as the Administrator may deem advisable under the rules,
regulations, and other requirements of the Securities and Exchange Commission,
any exchange upon which the Common Stock is then listed, and any applicable
federal or state securities law, and the Administrator may cause a legend or
legends to be put on any such certificates to make appropriate reference to such
restrictions. No shares of Common Stock shall be issued hereunder unless (i) the
Company shall have determined that such issuance is in compliance with, or
pursuant to an exemption from, all applicable federal and state securities laws,
(ii) in the case that the outstanding Common Stock is at the time listed on any
stock exchange, the shares of
6
Common Stock to be delivered have been listed or authorized to be listed on such
exchange upon official notice of issuance, and (iii) all other legal matters in
connection with the issuance and delivery of such shares have been approved by
the Company's counsel. Notwithstanding any provision of the Plan or any Award
Document to the contrary, no Option may be granted or exercised at any time when
such Option or the granting or exercise thereof or payment therefor may result
in the violation of any law or governmental order or regulation.
(g) Deferral. The Committee may, in its discretion and as provided in
the applicable Award Document, permit a Participant to defer receipt of the
shares underlying a Stock Option upon exercise pursuant to the terms of any
deferred compensation plan maintained by the Company.
7. Vesting; Forfeiture and Termination of Service
(a) Vesting. Subject to Sections 7(b) and 7(c), each Option granted to
a Participant shall vest and become exercisable as to 25% of the shares subject
to the Option on each of the first four successive anniversaries of the Date of
Grant. Once exercisable, an Option may be exercised at any time prior to its
expiration, cancellation or termination as provided in the Plan. Any exercise of
an Option shall be in writing, signed by the proper person and delivered or
mailed to the Company, accompanied by (a) any documents required by the
Administrator and (b) payment in full for the number of shares for which the
option is exercised.
(b) Forfeiture. If a Participant's status as a director is terminated
for Cause, the Option awarded to such Participant, and all rights thereunder,
shall be forfeited, whether or not such Option, or any portion thereof, is
vested or exercisable.
(c) Termination of Status as a Director.
(i) Disability. In the event that a
Participant shall cease to be a director by reason of Participant's
disability within the meaning of Section 22(e)(3) of the Code, any
outstanding Option held by such Participant that are not then exerciseable
shall terminate. All Options held by a Participant that are exerciseable
immediately prior to the Participant's termination for disability shall
remain so exercisable for a period of twelve months following such
termination, at the end of which time such Options shall terminate (unless
such Options expire earlier by their terms).
(ii) Death. In the event that a Participant shall cease to be a
director by reason of death (including death following a Participant's
disability within the meaning of Section 22(e)(3) of the Code), any
outstanding Options held by such Participant that are not then exerciseable
shall terminate. All Options held by a Participant that are exerciseable
immediately prior to the Participant's death shall remain exerciseably by
the Participant's Beneficiary for a period of twelve months after the
Participant's death, at the end of which time such Options shall terminate
(unless such Options expire earlier by their terms); provided, however,
that the Company shall be under no obligation to deliver Common Stock to a
Beneficiary pursuant to such exercise until the Company is satisfied as to
the authority of the Beneficiary exercising the option.
(iii) Other Reasons. In the event that a Participant shall cease to be
a director for any reason other than death, disability or for Cause, any
outstanding Option held by
7
such Participant may be exercised during the three-month period immediately
following the date of cessation of service to the extent such Option was
vested and not already exercised as of the date of such cessation of
service. After completion of such three-month period, the Option shall
terminate to the extent not previously exercised. All Options that are not
exercisable as of the date of such cessation of service shall terminate
immediately.
(iv) Change in Status. In the event that a Participant's status as a
director terminates for any reason and such Participant is employed by the
Company or a Subsidiary (or, if the Board in its sole discretion retains
such Participant as a consultant to the Company or a Subsidiary and affords
such Participant the treatment described in this Section 7(c)(iv))
immediately following such termination, then such Participant's Option
shall remain outstanding and continue to vest until the termination of the
Participant's status as an employee (or consultant) of the Company or such
Subsidiary and, to the extent the Option is exercisable on the date of such
termination, the vested portion of the Option shall remain outstanding
until 30 days following the date of termination.
8. Tax Withholding
If the Company or a Subsidiary shall be required to withhold any
amounts by reason of any federal, state or local tax rules or regulations in
respect of the issuance of shares of Common Stock pursuant to the exercise of an
Option, the Company or a Subsidiary, as applicable, shall be entitled to deduct
and to withhold such amount from any cash payments to be made to the
Participant. In any event, the Participant shall either (i) make available to
the Company or a Subsidiary, as applicable, promptly when requested by the
Company or such Subsidiary, sufficient funds or, if the Administrator so
provides, shares of Common Stock (valued at Fair Market Value as of the date the
withholding tax obligation arises (the "Tax Date")), to meet the requirements of
such withholding, or (ii) unless disallowed by the Administrator, irrevocably
authorize the Company or Subsidiary to withhold from the shares of Common Stock
otherwise issuable to the Participant as a result of such exercise a number of
shares of Common Stock having a Fair Market Value as of the Tax Date which
alone, or when added to funds paid or shares of Common Stock delivered to the
Company or the Subsidiary by the Participant, equal to the amount of the minimum
withholding tax obligation (the "Withholding Election") and the Company or such
Subsidiary shall be entitled to take and authorize such steps as it may deem
advisable in order to have such funds or shares of Common Stock made available
to the Company or such Subsidiary out of any funds or property due or to become
due to the Participant. A Participant's Withholding Election may only be made
prior to the Tax Date and may be disapproved by the Administrator. The
Administrator may establish such rules and procedures, including, without
limitation, any rules or procedures necessary to comply with Rule 16b-3, as it
may deem necessary or advisable in connection with the withholding of taxes
relating to the exercise of any Option.
9. No Restriction on Right of Company to Effect Corporate Changes
(a) Authority of the Company and Stockholders. The existence of the
Plan, the Award Documents and the Options granted hereunder shall not affect or
restrict in any way the right or power of the Company or the stockholders of the
Company to make or authorize any
8
adjustment, recapitalization, reorganization or other change in the Company's
capital structure or its business, any merger or consolidation of the Company,
any issue of stock or of options, warrants or rights to purchase stock or of
bonds, debentures, preferred or prior preference stocks whose rights are
superior to or affect the Common Stock or the rights thereof or which are
convertible into or exchangeable for Common Stock, or the dissolution or
liquidation of the Company, or any sale or transfer of all or any part of its
assets or business, or any other corporate act or proceeding, whether of a
similar character or otherwise.
(b) Change in Capitalization. Notwithstanding any provision of the
Plan or any Award Document, the number and kind of shares authorized for
issuance under Section 5(a) may be equitably adjusted in the sole discretion of
the Administrator in the event of a stock split, stock dividend,
recapitalization, reorganization, merger, consolidation, extraordinary dividend,
split-up, spin- off, combination, exchange of shares, warrants or rights
offering to purchase Common Stock at a price substantially below Fair Market
Value or other similar corporate event affecting the Common Stock in order to
preserve, but not increase, the benefits or potential benefits intended to be
made available under the Plan. In addition, upon the occurrence of any of the
foregoing events, the number of outstanding Options and the number and kind of
shares subject to any outstanding Option and the purchase price per share, if
any, under any outstanding Option may be equitably adjusted (including by
payment of cash to a Participant) in the sole discretion of the Administrator in
order to preserve the benefits or potential benefits intended to be made
available to Participants granted Options. Such adjustments shall be made by the
Administrator, in its sole discretion, whose determination as to what
adjustments shall be made, and the extent thereof, shall be final. Unless
otherwise determined by the Administrator, such adjusted Options shall be
subject to the same vesting schedule and restrictions to which the underlying
Option is subject.
10. Change of Control
Notwithstanding any other provision of this Plan, in the event of a
Change of Control, each Option held by a Participant shall immediately become
fully exercisable.
11. Application of Funds
The proceeds received by the Company from the sale of Common Stock
pursuant to Options will be used for general corporate purposes.
12. Compliance with Section 16(B) of The Exchange Act
Notwithstanding anything contained in the Plan or any agreement under
the Plan to the contrary, if the consummation of any transaction under the Plan,
or the taking of any action by the Committee in connection with a change of
control of the Company, would result in the possible imposition of liability on
a Participant pursuant to Section 16(b) of the Exchange Act, the Administrator
shall have the right, in its sole discretion, but shall not be obligated, to
defer such transaction or the effectiveness of such action to the extent
necessary to avoid such liability, but in no event for a period longer than six
months.
9
13. No Right to Continue as a Director
Nothing in the Plan or in any Option granted under the Plan shall
confer (or be deemed to confer) any right in any Participant to continue as a
director of the Company or any subsidiary or shall interfere in any way with the
right of the Board or the stockholders of the Company, or the board of directors
or stockholders (including the Company) of any Subsidiary, to terminate such
status at any time, with or without cause and with or without notice, except as
otherwise provided by the certificate of incorporation or by-laws of the Company
or such Subsidiary or applicable law.
14. Options to Individuals subject to Non-U.S. Jurisdictions
To the extent that Options under the Plan are awarded to individuals
who are domiciled or resident outside of the United States or to persons who are
domiciled or resident in the United States but who are subject to the tax laws
of a jurisdiction outside of the United States, the Administrator may, in its
sole discretion, adjust the terms of the Options granted hereunder to such
person (i) to comply with the laws of such jurisdiction and (ii) to permit the
grant of the Option not to be a taxable event to the Participant. The authority
granted under the previous sentence shall include the discretion for the
Administrator to adopt, on behalf of the Company, one or more sub-plans
applicable to separate classes of Participants who are subject to the laws of
jurisdictions outside of the United States.
15. Term of The Plan
Unless earlier terminated pursuant to Section 16, the Plan shall
terminate on the tenth anniversary of the Effective Date, except with respect to
Options then outstanding. In no event shall any Options be granted under the
Plan after the tenth anniversary of the Effective Date of the Plan.
16. Effective Date
The Plan shall become effective (the "Effective Date") upon its adoption by
the Board subject to its approval by the stockholders of the Company. Prior to
such stockholder approval, the Administrator may grant Options conditioned on
stockholder approval. If such stockholder approval is not obtained at or before
the first annual meeting of stockholders to occur after the adoption of the Plan
by the Board (including any adjournment or adjournments thereof), the Plan and
any Options granted thereunder shall terminate ab initio and be of no further
force and effect.
17. Amendment and Termination
The Board may at any time discontinue granting Options under the Plan.
The Board may at any time or times amend the Plan for the purpose of satisfying
any changes in applicable laws or regulations or for any other purpose which may
at the time be permitted by law, or may at any time terminate the Plan as to any
further grants of Options; provided, however, that (except to the extent
expressly required or permitted hereinabove) no such amendment shall, without
the approval of the stockholders of the Company if such stockholder approval is
required by then current law, (a) increase the maximum number of shares
10
available under the Plan, (b) increase the number of Options granted to
Participants, (c) amend the definition of Participant so as to enlarge the group
of directors eligible to receive Options under the Plan, (d) reduce the price at
which Options may be granted, (e) change or extend the times at which Options
may be granted, or (f) amend the provisions of this Section 17, and no such
amendment shall adversely affect the rights of any participant (without his or
her consent) under any Option previously granted; and provided further that no
such amendment shall reduce the exercise price of any Option previously granted
hereunder. In addition, no termination or amendment of the Plan may, without the
consent of the Participant to whom an Option has been granted, adversely affect
the rights of such Participant under any Option previously granted.
Notwithstanding any provision herein or in any Award Document to the contrary,
the Board shall have the broad authority to amend the Plan or any Option under
the Plan to take into account changes in applicable tax laws, securities laws,
accounting rules and other applicable state and federal laws.
18. Governing Law
The Plan and all agreements entered into under the Plan shall be
construed in accordance with and governed by the laws of the State of Florida
and without giving effect to principles of conflicts of laws.
11
EX-5
5
ex5tofs8_091901.txt
OPINION OF S&S
EXHIBIT 5
October 11, 2001
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 1,250,000 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 the Company's 2001 Stock Option Plan, 2001
Non-Employee Directors' Stock Option Plan, and the Amended and Restated 1994
Employee Stock Purchase Plan (collectively the "Plans").
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 Company and, when (a) issued and delivered by
the Company in accordance with the terms of the applicable Plan and (b) paid for
in full in accordance with terms of the applicable 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
-------------------------
Shearman & Sterling
EX-23.1
6
ex23-1tofs8_091901.txt
CONSENT OF DELOITTE & TOUCHE LLP
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 of our reports dated April 2, 2001 (May 16, 2001
as to Note 18), appearing in the Annual Report on Form 10-K of BE Aerospace,
Inc. for the year ended February 24, 2001.
/s/ Deloitte & Touche LLP
---------------------------
DELOITTE & TOUCHE LLP
Costa Mesa, California
October 10, 2001
EX-23.3
7
ex23-3tofs8_091901.txt
CONSENT OF INDEPENDENT CERT. PUBLIC ACCOUNTANTS
EXHIBIT 23.3
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of BE Aerospace, Inc. of our report dated April 12, 2001,
except for Note 9 which is as of August 10, 2001, relating to the financial
statements of M&M Aerospace Hardware, Inc., which appears in BE Aerospace,
Inc.'s filing on Form 8-K dated August 10, 2001 and as amended on Form 8-K/A
filed August 23, 2001.
/s/ PricewaterhouseCoopers LLP
------------------------------
PricewaterhouseCoopers LLP
October 10, 2001
Miami, Florida