As filed with the Securities and Exchange Commission on November 24, 1998
Registration No. 333-
- --------------------------------------------------------------------------------
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 (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
<TABLE>
<CAPTION>
Proposed Proposed maximum
Title of securities Amount to be offering aggregate Amount of
to be registered registered price price registration fee
- ---------------------------- -------------------- ------------------------ ------------------------ ------------------------
<S> <C> <C> <C> <C>
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
- ---------------------------- -------------------- ------------------------ ------------------------ ------------------------
<FN>
(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.
</FN>
</TABLE>
Page 1 of 9 Pages
<PAGE>
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
<PAGE>
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
<PAGE>
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
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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
<PAGE>
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
<PAGE>
/s/ Hansjoerg Wyss Director
- -----------------------
Hansjoerg Wyss
7
<PAGE>
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
[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
<PAGE>
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
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
