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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BE AEROSPACE, INC.
(Exact name of issuer as specified in its charter)
Delaware 06-1209796
- ------------------------------- ---------------------
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
1400 Corporate Center Way
Wellington, Florida 33414
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(Address of principal executive offices, including zip code)
AMENDED AND RESTATED 1989 STOCK OPTION PLAN
1996 STOCK OPTION PLAN
----------------------------
(Full title of the plans)
Thomas P. McCaffrey
Chief Financial Officer
1400 Corporate Center Way
Wellington, Florida 33414
(561) 791-5000
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(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
Title of Amount Proposed Proposed Amount of
Securities to be maximum maximum registration
to be registered offering aggregate fee/(2)/
registered price per offering
share/(1)/ price/(1)/
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<S> <C> <C> <C> <C>
Common Stock 1,500,000 $24.625 - $40.125 $52,717,625 $15,975
par value, $.01 per
share
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</TABLE>
(1) The offering price for shares subject to options on the date hereof is the
actual exercise price of such options. Of the 1,500,000 shares to be registered
hereunder, 42,500 shares are subject to options at an exercise price of $24.625
per share and 664,500 shares are subject to options at an exercise price of
$29.875 per share. The offering price for the remaining 793,000 shares not
subject to options on the date hereof of $40.125 per share has been estimated
solely for the purpose of determining the registration fee pursuant to Rule
457(h) on the basis of the average of the high and low prices of BE Aerospace,
Inc. Common Stock, par value $0.01 per share, reported on the Nasdaq National
Market on September 11, 1997.
(2) Registration fee consists of $317 payable in respect of 42,500 shares
subject to options at an exercise price of $24.625 per share, plus $6,016
payable in respect of 664,500 shares subject to options at an exercise price of
$29.875 per share, plus $9,642 payable in respect of 793,000 shares that have
not yet been subject to options on the date hereof.
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EXPLANATORY NOTE
This Registration Statement has been filed pursuant to General Instruction E on
Form S-8, to register (i) 700,000 additional securities to be offered pursuant
to the Amended and Restated 1989 Stock Option Plan (the "1989 Plan") of BE
Aerospace, Inc. (the "Registrant" or the "Company") and (ii) 800,000 additional
securities to be offered pursuant to the 1996 Stock Option Plan (the "1996
Plan") of the Registrant. A registration statement on Form S-8 (No. 33-38223),
filed with the Commission on December 14, 1990 to register 700,000 shares of
common stock offered pursuant to the 1989 Plan; a registration statement on Form
S-8 (No. 33-48119), filed with the Commission on May 26, 1992 to register an
additional 300,000 shares of common stock offered pursuant to the 1989 Plan; a
registration statement on Form S-8 (No. 33-72194), filed with the Commission on
November 26, 1993 to register an additional 500,000 shares of common stock
offered pursuant to the 1989 Plan; and a registration statement on Form S-8 (No.
333-14037), filed with the Commission on October 15, 1997 to register an
additional 1,050,00 shares of common stock offered pursuant to the 1989 Plan and
to register 500,000 shares of common stock offered pursuant to the 1996 Plan,
are each currently effective and are each hereby incorporated herein by
reference.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The Registrant hereby incorporates the following documents herein by
reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
February 22, 1997 filed with the Commission on May 9, 1997.
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
May 31, 1997 filed with the Commission on June 30, 1997.
(c) The description of the common stock of the Registrant contained in the
Prospectus as part of the Registrant's Registration Statement on Form
8-A (No. 0-18348) filed with the Commission on March 7, 1990 under
Section 12 of the Exchange Act of 1934, as amended (the "Exchange
Act.")
All other documents subsequently filed by the Registrant pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing of a
post-effective amendment to this Registration Statement that indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities.
-------------------------
Not required.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
No material interests.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
(a) Section 145 of the Delaware Corporation Law, as amended, gives
Delaware corporations the power to indemnify each of their present and former
officers or directors under certain circumstances, if such person acted in good
faith and in a manner which he reasonably believed to be in, or not opposed to,
the best interests of the corporation.
(b) The Amended and Restated Certificate of Incorporation, as amended,
of the Registrant contains provisions that eliminate the personal liability of
each director to the Registrant or its stockholders for monetary damages for
breach of fiduciary duty as a director, except (i) for breaches of such
director's duty of loyalty to the Registrant or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of Title 8 of the Delaware
Code or (iv) for any transaction from which such director derived an improper
personal benefit.
(c) The Amended and Restated Certificate of Incorporation, as amended,
of the Registrant contains provisions to the general effect that each director
and officer shall be indemnified by the Registrant against liabilities and
expenses in connection with any threatened, pending or contemplated legal
proceeding to which he
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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.
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Exhibit List
5 Opinion of Ropes & Gray.
23 Consents
23.1 Consent of Deloitte & Touche L.L.P.
23.2 Consent of Ropes & Gray (contained in Exhibit 5).
24 Power of Attorney (included as part of the signature pages to this
Registration Statement).
Item 9. Undertakings.
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(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
----
fide offering thereof;
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(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.
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(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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Village of Wellington, Florida on this 12th day of September,
1997.
BE Aerospace, Inc.
By /s/ Robert J. Khoury
---------------------------------
Robert J. Khoury,
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and as of the 12th day of September, 1997. Each person whose
signature appears below hereby authorized each of Robert J. Khoury, Edmund J.
Moriarty and Thomas P. McCaffrey and appoints each of them singly his
attorney-in-fact, each with full power of substitution, to execute in his name,
place and stead, in any and all capacities, any post-effective amendment to this
Registration Statement and file the same, with exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
making such further changes in this Registration Statement as the Company deems
appropriate.
Signature Capacity
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/s/ Robert J. Khoury Vice Chairman; Chief Executive Officer
--------------------------- and Director
Robert J. Khoury
/s/ Thomas P. McCaffrey Corporate Senior Vice President of
--------------------------- Administration and Chief Financial
Thomas P. McCaffrey Officer
/s/ Paul E. Fulchino President; Chief Operating Officer and
--------------------------- Director
Paul E. Fulchino
/s/ Jim C. Cowart Director
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Jim C. Cowart
/s/ Richard G. Hamermesh Director
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Richard G. Hamermesh
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/s/ Amin J. Khoury Director (Chairman of the Board)
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Amin J. Khoury
/s/ Brian H. Rowe Director
---------------------------
Brian H. Rowe
/s/ Hansjoerg Wyss Director
---------------------------
Hansjoerg Wyss
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EXHIBIT INDEX
Exhibit List
<TABLE>
<CAPTION>
Number Title of Exhibit Page
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<S> <C> <C>
5 Opinion of Ropes & Gray.
23 Consents.
23.1 Consent of Deloitte & Touche L.L.P.
23.2 Consent of Ropes & Gray (contained in Exhibit 5).
24 Power of Attorney (included as part of the signature pages to this
Registration Statement).
</TABLE>
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[LETTERHEAD OF ROPES & GRAY APPEARS HERE]
September 12, 1997
BE Aerospace, Inc.
1400 Corporate Center Way
Wellington, Florida 33414
Ladies and Gentlemen:
This opinion is furnished to you in connection with a registration
statement on Form S-8 (the "Registration Statement"), filed with the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended, for the registration of 1,500,000 shares of Common Stock, $.01 par
value (the "Shares"), of BE Aerospace, Inc. (the "Company"). The Shares include
700,000 issuable under the Company's Amended and Restated 1989 Stock Option
Plan, as amended (the "1989 Plan") and 800,000 issuable under the 1996 Stock
Option Plan (the "1996 Plan").
We have acted as counsel for the Company and are familiar with the
actions taken by the Company in connection with the 1989 Plan and the 1996 Plan.
For purposes of this opinion we have examined the Registration Statement, the
1989 Plan, the 1996 Plan and such other documents as we deemed appropriate.
Based upon the foregoing, we are of the opinion that, when the Shares
have been issued and sold and consideration received therefor by the Company in
accordance with the terms, respectively, of the 1989 Plan and the 1996 Plan, the
Shares will have been validly issued and will be fully paid and non-assessable.
We hereby consent to your filing this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Ropes & Gray
Ropes & Gray
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Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
BE Aerospace, Inc. on Form S-8, relating to the Amended and Restated 1989 Stock
Option Plan and 1996 Stock Option Plan, of our report dated April 10, 1997,
appearing in the Annual Report on Form 10-K of BE Aerospace, Inc. for the year
ended February 22, 1997.
Deloitte & Touche LLP
Costa Mesa, California
September 8, 1997
