-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, BW/gK7wza8nsliaQdxrkA79LzQ5TZ8vQgrNnnQQmrUPZY3NuZtmt6VYV8yc/IHaM H8W+9maGudC9ggmgiMRM5Q== 0000947871-98-000399.txt : 19981125 0000947871-98-000399.hdr.sgml : 19981125 ACCESSION NUMBER: 0000947871-98-000399 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19981124 EFFECTIVENESS DATE: 19981124 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BE AEROSPACE INC CENTRAL INDEX KEY: 0000861361 STANDARD INDUSTRIAL CLASSIFICATION: PUBLIC BUILDING AND RELATED FURNITURE [2531] IRS NUMBER: 061209796 STATE OF INCORPORATION: DE FISCAL YEAR END: 0222 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-67825 FILM NUMBER: 98758364 BUSINESS ADDRESS: STREET 1: 1400 CORPORATE CTR WY CITY: WELLINGTON STATE: FL ZIP: 33414 BUSINESS PHONE: 5617915000 MAIL ADDRESS: STREET 1: 1300 CORPORATE CENTER WAY STREET 2: 1300 CORPORATE CENTER WAY CITY: WELLINGTON STATE: FL ZIP: 33414 FORMER COMPANY: FORMER CONFORMED NAME: BE AVIONICS INC DATE OF NAME CHANGE: 19920608 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on November 24, 1998 Registration No. 333- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------- BE AEROSPACE, INC. (Exact name of issuer as specified in its charter) Delaware 06-1209796 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 1400 Corporate Center Way Wellington, Florida 33414 (Address of principal executive offices, including zip code) AMENDED AND RESTATED 1989 STOCK OPTION PLAN 1991 DIRECTORS' OPTION PLAN 1996 STOCK OPTION PLAN (Full title of the plans) Thomas P. McCaffrey Chief Financial Officer BE Aerospace, Inc. 1400 Corporate Center Way Wellington, Florida 33414 (561) 791-5000 (Name, address and telephone number of agent for service) CALCULATION OF REGISTRATION FEE
Proposed Proposed maximum Title of securities Amount to be offering aggregate Amount of to be registered registered price price registration fee - ---------------------------- -------------------- ------------------------ ------------------------ ------------------------ Common Stock, par (1) value $0.01 per share 969,619 shares $20.8125 $20,180,195.43 $5,610.09 44,500 shares $23.00 $ 1,023,500.00 $ 284.54 (2) 185,881 shares $23.00 $ 4,275,263.00 $1,188.52 ----------------------- ------------------------ $25,478,958.43 $7,083.15 - ---------------------------- -------------------- ------------------------ ------------------------ ------------------------ (1) The offering price for shares subject to options on the date hereof is the actual exercise price of such options. Of the 1,200,000 shares to be registered hereunder, 969,612 shares are subject to options at an exercise price of $20.8125 per share and 44,500 shares are subject to options at an exercise price of $23.00 per share. (2) The offering price for the remaining 185,881 shares not subject to options on the date hereof of $23.00 per share has been estimated solely for the purpose of determining the registration fee pursuant to Rule 457(h) on the basis of the average of the high and low prices of BE Aerospace, Inc. Common Stock, par value $0.01 per share, reported on the Nasdaq National Market on November 20, 1998.
Page 1 of 9 Pages 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 of 1933, as amended (hereinafter, 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 Commission are incorporated as of their respective dates in this Registration Statement by reference. (i) the Registrant's Annual Report on Form 10-K, as amended by Form 10-K/A, for the fiscal year ended February 28, 1998; (ii) the Registrant's Quarterly Reports on Form 10-Q for the quarters ended May 30, 1998 and August 29, 1998; and (iii) the description of the Common Stock contained in the Prospectus as part of the Registrant's Registration Statement on Form 8-A (No. 0-18348) filed with the Commission on March 7, 1990 under Section 12 of the Exchange Act of 1934, as amended (the "Exchange Act"), and the description of the attached shareholder rights described in the Current Report on Form 8-K, filed with the Commission on November 18, 1998. All other documents subsequently filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Item 4. Description of Securities. Not required. Item 5. Interests of Named Experts and Counsel. No material interests. Item 6. Indemnification of Directors and Officers. (a) Section 145 of the General Corporation Law of the State of Delaware (the "DGCL") provides, in summary, that directors and officers of Delaware corporations such as the Registrant are entitled, under certain circumstances, to be indemnified against all expenses and liabilities (including attorneys' fees) incurred by them as a result of suits brought against them in their capacity as a director or officer if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the Registrant and, with respect to any criminal action or proceeding, if they had no reasonable cause to believe their conduct was unlawful; provided that no indemnification may be made against expenses in respect of any claim, issue or matter as to which they shall have been adjudged to be liable to the Registrant, unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, they are fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper. Any such indemnification may be made by the company only as authorized in each specific case upon a determination by the stockholders or disinterested directors that indemnification is proper because the indemnitee has met the applicable standard of conduct. (b) Article 7 of the Registrant's Amended and Restated Certificate of Incorporation, as amended, of the Registrant 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 3 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 indemnification of each director and officer of the Registrant against liabilities and expenses (including legal fees) arising from any threatened, pending or contemplated legal proceeding to which he may be a party or with which he may become involved by reason of being or having been an officer or director of the Registrant. Such indemnification is authorized to the fullest extent permitted under the Delaware General Corporation Law. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. The following exhibits are filed as part of this Registration Statement: Exhibit No. Description of Document 4.1 Amended and Restated Certificate of Incorporation (incorporated herein by reference to the Registrant's Registration Statement on Form S-1, as amended (No. 33-33689), filed with the Commission on March 7, 1990) 4.2 Certificate of Amendment of the Restated Certificate of Incorporation (incorporated herein by reference to the Registrant's Registration Statement on Form S-1, as amended (No. 33-54196), filed with the Commission on November 3, 1992) 4.3 Amended and Restated By-Laws (incorporated herein by reference to the Registrant's Form 10-K for the year ended February 28, 1998) 4.4 Amended and Restated 1989 Stock Option Plan, as amended (incorporated herein by reference to the Registrant's Registration Statement on Form S-8 (No. 33-48119), filed with the Commission on May 26, 1992) 4.5 1991 Directors' Stock Option Plan (incorporated herein by reference to the Registrant's Registration Statement on Form S-8 (No. 33-48119), filed with the Commission on May 26, 1992) 4.6 1996 Stock Option Plan (incorporated herein by reference to the Registrant's Registration Statement on Form S-8 (No. 333-14037), filed with the Commission on October 15, 1996) 5 Opinion of Shearman & Sterling regarding the legality of the securities being offered hereby 23.1 Consent of Deloitte & Touche L.L.P. 23.2 Consent of Shearman & Sterling (contained in Exhibit 5) 24 Power of Attorney (included as part of the signature pages to this Registration Statement) 4 Item 9. Undertakings. (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement; (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high and of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; (2) That, for the purpose of determining any liabilities under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. 5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, 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 23rd day of November 1998. BE Aerospace, Inc. By: /s/ Robert J. Khoury ------------------------------------ Name: Robert J. Khoury Title: Chief Executive Officer 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 of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commissions, 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 of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities indicated as of the 23rd day of November, 1998. Signature Capacity --------- -------- /s/ Amin J. Khoury Director (Chairman of the Board) - ------------------------ Amin J. Khoury /s/ Robert J. Khoury Vice Chairman, Chief Executive Officer and Director - ------------------------ (principal executive officer) Robert J. Khoury /s/ Paul E. Fulchino President, Chief Operating Officer and Director - ------------------------ Paul E. Fulchino /s/ Thomas P. McCaffrey Corporate Senior Vice President Administration - ------------------------ and Chief Financial Officer (principal financial and Thomas P. McCaffrey accounting) /s/ Jim C. Cowart Director - ------------------------ Jim C. Cowart - ------------------------ Director Richard G. Hamermesh /s/ Brian H. Rowe - ----------------------- Director Brian H. Rowe 6 /s/ Hansjoerg Wyss Director - ----------------------- Hansjoerg Wyss 7 EXHIBIT INDEX Exhibit List Number Title of Exhibit Page - ------ ---------------- ---- 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- 54196), filed with the Commission on November 3, 1992) 4.3 Amended and Restated By-Laws (incorporated herein by reference to the Registrant's Form 10-K for the year ended February 28, 1998) 4.4 Amended and Restated 1989 Stock Option Plan, as amended (incorporated herein by reference to the Registrant's Registration Statement on Form S-8 (No. 33-48119), filed with the Commission on May 26, 1992) 4.5 1991 Directors' Stock Option Plan (incorporated herein by reference to the Registrant's Registration Statement on Form S-8 (No. 33-48119), filed with the Commission on May 26, 1992) 4.6 1996 Stock Option Plan (incorporated herein by reference to the Registrant's Registration Statement on Form S-8 (No. 333-14037), filed with the Commission on October 15, 1996) 5 Opinion of Shearman & Sterling regarding the legality of the securities being offered hereby. 23.1 Consent of Deloitte & Touche L.L.P. 23.2 Consent of Shearman & Sterling (contained in Exhibit 5) 24 Power of Attorney (included as part of the signature pages to this Registration Statement) 8 EX-5 2 OPINION OF SHEARMAN & STERLING [Letterhead of Shearman & Sterling] November 23, 1998 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 1,200,000 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 (i) Amended and Restated 1989 Stock Option Plan, (ii) 1991 Directors' Stock Option Plan and (iii) 1996 Stock Option Plan (each, a "Plan"). In so acting, we have examined the Registration Statement and we have also examined and relied as to factual matters upon the representations and warranties contained in originals, or copies certified or otherwise identified to our satisfaction, of such documents, records, certificates and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. In such examination, we have assumed the genuineness of all signatures, the authenticity of all documents, certificates and instruments submitted to us as originals and the conformity with originals of all documents submitted to us as copies. The opinion expressed below is limited to the General Corporation Law of Delaware, and we do not express any opinion herein concerning any other law. Based upon the foregoing and having regard for such legal considerations as we have deemed relevant, we are of the opinion that the Shares have been duly authorized by the BE Aerospace, Inc. 2 November 23, 1998 Company and, when (a) issued and delivered by the Company in accordance with the terms of the relevant Plan and (b) paid for in full in accordance with the terms of the relevant Plan, the Shares will be validly issued, fully paid and non-assessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ Shearman & Sterling EX-23.1 3 INDEPENDENT AUDITOR'S CONSENT INDEPENDENT AUDITOR'S CONSENT We consent to the incorporation by reference in this Registration Statement of BE Aerospace, Inc. on Form S-8, relating to the Amended and Restated 1989 Stock Option Plan, 1991 Director's Option Plan and 1996 Stock Option Plan, of our report dated April 15, 1998, appearing in the Annual Report on Form 10-K of BE Aerospace, Inc. for the year ended February 28, 1998. /s/ Deloitte & Touche - ------------------------- Deloitte & Touche LLP Costa Mesa, California November 20, 1998 -----END PRIVACY-ENHANCED MESSAGE-----