As filed with the Securities and Exchange Commission on July 30, 1998.
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
---------------------
FORM S-3
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 (561) 791-5000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
Edmund J. Moriarty, Esq.
General Counsel
1400 Corporate Center Way
Wellington, FL 33414
(561) 791-5000 / (561) 791-3966 (fax)
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------------
Copies of all communications to:
Rohan S. Weerasinghe, Esq. Winthrop G. Minot, Esq.
Shearman & Sterling Ropes & Gray
599 Lexington Avenue One International Place
New York, New York 10022 Boston, Massachusetts 02110
(212) 848-4000 / (212) 848-7179 (fax) (617) 951-7000/(617) 951-7050 (fax)
---------------------
Approximate date of commencement of proposed sale to the public: From time
to time or at one time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933 (the "Securities Act") other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================================
Title of Each Class of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Per Share(1) Aggregate Offering Price(1) Registration Fee
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 Par Value 5,166,675 shs. $31.90625 $164,849,225 $49,955
===================================================================================================================================
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c) for the purpose of calculating the registration fee based on the
average of the high and low sales prices on July 28, 1998.
---------------------
The registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This Prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED JULY 30, 1998
5,166,675 Shares
BE AEROSPACE, INC.
Common Stock
----------------
All of the shares (the "Shares") of Common Stock of BE Aerospace, Inc.,
a Delaware corporation ("B/E" or the "Company"), par value $.01 per share (the
"Common Stock"), offered hereby are being offered by certain stockholders listed
herein (collectively, the "Selling Stockholders"), who may from time to time
offer for sale shares of the Common Stock. The Selling Stockholders received, or
will receive, such shares in connection with the acquisitions of either ASI, ALC
or SMR (each as defined herein). Except as provided by the SMR Acquisition
Agreement (as defined herein), the Company will not receive any proceeds from
the sale by the Selling Stockholders of the Shares. See "Selling Stockholders."
The Selling Stockholders have advised the Company that the Shares of
Common Stock offered hereby may be offered or sold by or for the account of such
Selling Stockholders, from time to time, to purchasers directly, or through
brokers in brokerage transactions on the Nasdaq National Market, or to
underwriters or dealers in negotiated transactions or in a combination of such
methods of sale, at fixed prices which may be changed, at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices. From time to time the Selling Stockholders may
engage in short sales, puts and calls and other transactions in securities of
the Company, or derivatives thereof, and may sell and deliver the Shares in
connection therewith. Brokers, dealers and underwriters that participate in the
distribution of the Common Stock offered hereby may be deemed to be underwriters
under the Securities Act of 1933 as amended, and together with the rules and
regulations thereunder (the "Securities Act"), and any discounts or commissions
received by them from the Selling Stockholders and any profit on the resale of
the Common Stock offered hereby by them may be deemed to be underwriting
discounts and commissions under the Securities Act. The Selling Stockholders may
be deemed to be underwriters under the Securities Act. The Company will bear all
expenses in connection with the offering made hereunder, other than, in the case
of the Selling Stockholders who received their shares in connection with the
acquisitions of ASI or ALC, all applicable stock transfer taxes, brokerage
commissions, underwriting discounts or commissions and fees of such Selling
Stockholders' counsel which will be paid by such Selling Stockholders, pursuant
to the relevant Merger Agreements (as defined herein). The Company has agreed to
indemnify the Selling Stockholders against certain liabilities, including
certain liabilities under the Securities Act, in connection with the
registration and the offering and sale of the Common Stock offered hereby. See
"Plan of Distribution."
The Common Stock is listed on the Nasdaq National Market ("Nasdaq")
under the symbol "BEAV." On July 27, 1998, the last reported sale price of the
Common Stock was $32.00 per share.
If necessary, certain information relating to the Selling Stockholders,
the terms of each sale of Common Stock offered hereby, including the public
offering price, the names of any underwriters or agents, the compensation, if
any, of such underwriters or agents and the other terms in connection with the
sale of the Common Stock, in respect of which this Prospectus is delivered will
be set forth in an accompanying Prospectus Supplement (the "Prospectus
Supplement").
FOR A DISCUSSION OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED BY
PROSPECTIVE PURCHASERS OF THE COMMON STOCK OFFERED HEREBY, SEE "RISK FACTORS"
BEGINNING ON PAGE 5.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
----------------
The date of this Prospectus is July , 1998.
<PAGE>
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus or any Prospectus
Supplement and, if given or made, such information or representations must not
be relied upon as having been authorized. This Prospectus and any Prospectus
Supplement does not constitute an offer to sell or the solicitation of an offer
to buy any securities other than the securities to which it relates or an offer
to sell or the solicitation of an offer to buy such securities in any
circumstances in which such offer or solicitation is unlawful. Neither the
delivery of this Prospectus or any Prospectus Supplement nor any sale made
hereunder or thereunder shall, under any circumstances, create any implication
that there has been no change in the affairs of the Company since the date
hereof or thereof or that the information contained herein or therein is correct
as of any time subsequent to the date of such information.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements, and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities of the Commission at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549; and at the Commission's regional offices at 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661 and 7 World Trade Center,
13th Floor, New York, New York 10048. Copies of such material can be obtained
from the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. Such material may also be accessed
electronically by means of the Commission's home page on the Internet at
http://www.sec.gov.
The Company has filed with the Commission a registration statement on
Form S-3 (the "Registration Statement") under the Securities Act with respect to
the Common Stock to which this Prospectus relates. This Prospectus does not
contain all the information set forth in the Registration Statement, certain
portions of which have been omitted as permitted by the rules and regulations of
the Commission. For further information with respect to the Company and the
Common Stock, reference is made to the Registration Statement, including the
exhibits thereto. The Registration Statement may be inspected by anyone without
charge at the principal office of the Commission in Washington, D.C., and copies
of all or part of it may be obtained from the Commission upon payment of the
prescribed fees.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed with the Commission
(Commission File No. 000-18348) by the Company are incorporated in this
Prospectus by reference and made a part hereof:
(1) B/E's Annual Report on Form 10-K for the year ended February
28, 1998 (the "1998 10-K"), filed with the Commission on May
29, 1998, as amended by the amendment to the 1998 10-K filed
with the Commission on June 29, 1998.
(2) The Company's Quarterly Report on Form 10-Q for the quarter
ended May 30, 1998, filed with the Commission on July 14,
1998.
(3) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed under
Section 12 of the Exchange Act, including any report or
amendment updating such description.
All documents subsequently filed by B/E with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and
prior to the termination of the offering of the Common Stock shall be deemed to
be incorporated by reference into this Prospectus and to be a part of this
Prospectus from the date of filing of such document. Any statement contained
herein, or in a document all or a portion of which is incorporated or deemed to
be incorporated by reference herein, shall be deemed to be modified or
superseded for purposes of the Registration Statement and this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document that is also deemed
-2-
<PAGE>
to be incorporated by reference herein modifies 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 the Registration Statement or
this Prospectus.
This Prospectus incorporates documents by reference which are not
presented herein or delivered herewith. B/E will provide without charge to any
person to whom this Prospectus is delivered, on the written or oral request of
such person, a copy of any or all of the foregoing documents incorporated by
reference, other than exhibits to such documents (unless such exhibits are
specifically incorporated by reference into such documents). Written requests
should be directed to: Chief Financial Officer, BE Aerospace, Inc., 1400
Corporate Center Way, Wellington, FL 33414. Telephone requests may be directed
to B/E at (561) 791-5000.
In connection with any underwritten offering of the Shares, the
underwriters and certain persons participating in such offering may engage in
transactions that stabilize, maintain or otherwise affect the price of the
Common Stock, including over-allotment, stabilizing transactions, syndicate
short covering transactions and penalty bids. Such transactions may be effected
on the Nasdaq, in the over-the-counter market or otherwise. Such transactions,
if commenced, may be discontinued at any time.
THE COMPANY
General
B/E is the world's largest manufacturer of commercial and general
aviation aircraft cabin interior products, serving virtually all major airlines
and a wide variety of general aviation customers and airframe manufacturers with
a broad line of products, including aircraft seats, food and beverage
preparation and storage equipment, galley structures, lighting systems and
in-flight entertainment systems. In addition, upon the acquisition of SMR, B/E
will provide design, integration, installation and certification services,
offering its customers in-house capabilities to design, project manage,
integrate, test and certify reconfigurations and modifications to commercial
aircraft passenger cabin interiors and to manufacture related products,
including engineering kits and interface components. B/E also provides upgrade,
maintenance and repair services for its airline customers around the world.
B/E's executive offices are located at 1400 Corporate Center Way,
Wellington, Florida 33414, and its telephone number is (561) 791-5000.
Recent Acquisitions
On March 27, 1998, the Company acquired Aerospace Interiors, Inc.
("ASI") for a total of 201,895 shares of Common Stock, representing a purchase
price of approximately $5.6 million. ASI services, cleans and repairs aircraft
interior parts and products, and is a leading provider of seat repair and
maintenance services performed by non-airline entities. See "Selling
Stockholders."
On April, 14, 1998, the Company acquired Puritan-Bennett Aero Systems
Co. ("PBASCO"), a wholly owned subsidiary of Nellcor Puritan Bennett Inc., for a
cash purchase price of $69.7 million. PBASCO is a leading manufacturer of
commercial aircraft oxygen delivery systems and passenger service unit
components and systems ("PSU") and is a major supplier of air valves, overhead
lights and switches for both commercial and general aviation aircraft.
On April 21, 1998, the Company acquired Aircraft Modular Products
("AMP") for a cash purchase price of $117.3 million. AMP is a leading
manufacturer of cabin interior products for general aviation (business jet) and
commercial-type VIP aircraft, providing a broad line of products including
seating, sidewalls, bulkheads, credenza, closets, galley structures, lavatories,
tables and sofas, as well as related spare parts.
-3-
<PAGE>
On July 30, 1998, the Company acquired Aerospace Lighting Corporation
("ALC") for a total of 964,780 shares of Common Stock, representing a purchase
price of approximately $28.1 million. ALC is a market leader in producing
interior fluorescent lighting systems for business and corporate jet aircraft.
See "Selling Stockholders."
On July 21, 1998, the Company agreed to acquire the common stock of SMR
Aerospace, Inc., the membership interests of SMR Developers LLC, and the
partnership interests of SMR Associates (together, the "SMR Companies" or "SMR")
for a total purchase price of approximately $120.0 million, subject to
adjustment (the "SMR Purchase Price"). Pursuant to the SMR Acquisition
Agreement, the Company will issue 4,000,000 shares of Common Stock to the SMR
Sellers (as defined herein). The Company will also pay $22.0 million in cash to
the employee stock ownership plan (the "ESOP") of Flight Structures, Inc.
("FSI"), a subsidiary of SMR Aerospace, Inc., pursuant to a separate Stock
Purchase Agreement between the ESOP and B/E, to purchase the minority equity
interest in FSI held by the ESOP. To the extent the Net Proceeds (as defined in
the SMR Acquisition Agreement) from the sale of the 4,000,000 shares of Common
Stock is less than the SMR Purchase Price, the Company will pay such difference
to the SMR Sellers with funds drawn under the Bank Credit Facility (as defined
herein). B/E's obligations to the SMR Sellers under the SMR Acquisition
Agreement are secured by an irrevocable stand-by letter of credit from The Chase
Manhattan Bank in favor of the SMR Sellers. If such Net Proceeds exceed the SMR
Purchase Price, the SMR Sellers will remit such excess to the Company.
SMR is a leader in providing design, integration, installation and
certification services for commercial aircraft passenger cabin interiors. SMR
provides a broad range of interior reconfiguration services which allow airlines
to change the size of certain classes of service, modify and upgrade the
seating, install telecommunications or entertainment options, relocate galleys,
lavatories, and overhead bins, and install crew rest compartments. SMR is also a
supplier of structural design and integration services, including airframe
modifications for passenger-to-freighter conversions. In addition, SMR provides
a variety of niche products and components that are used to facilitate
reconfigurations and conversions. SMR's services are performed primarily on an
aftermarket basis, and its customers include major airlines, such as United
Airlines, Japan Airlines, British Airways, Air France, Cathay Pacific and
Qantas, as well as Boeing, Airborne Express and Federal Express. See "Selling
Stockholders."
-4-
<PAGE>
RISK FACTORS
Prior to making an investment decision with respect to the Shares of
Common Stock offered hereby, prospective investors should carefully consider the
specific factors set forth below, together with all of the other information
appearing herein, in light of their particular investment objectives and
financial circumstances.
Dependence upon Conditions in the Airline Industry
The Company's principal customers are the world's commercial airlines.
As a result, the Company's business is directly dependent upon the conditions in
the highly cyclical and competitive commercial airline industry. In the late
1980s and early 1990s, the airline industry suffered a severe downturn, which
resulted in record losses and several air carriers seeking protection under
bankruptcy laws. As a consequence, during such period, airlines sought to
conserve cash by reducing or deferring scheduled cabin interior refurbishment
and upgrade programs and by delaying purchases of new aircraft. This led to a
significant contraction in the commercial aircraft cabin interior products
industry and a decline in the Company's business and profitability. The airline
industry has now experienced five consecutive years of profitability including
record profitability in each of the last three calendar years. This financial
turnaround has, in part, been driven by record load factors, rising fare prices
and declining fuel costs. The airlines have substantially restored their balance
sheets through cash generated from operations and debt and equity placements. As
a result, the levels of airline spending on refurbishment and new aircraft
purchases have expanded. However, due to the volatility of the airline industry
there can be no assurance that the current profitability of the airline industry
will continue or that the airlines will maintain or increase expenditures on
cabin interior products for refurbishments or new aircraft.
In addition, the airline industry is undergoing a process of
consolidation and significantly increased competition. Such consolidation could
result in a reduction of future aircraft orders as overlapping routes are
eliminated and airlines seek greater economies through higher aircraft
utilization. Increased airline competition may also result in airlines seeking
to reduce costs by promoting greater price competition from airline cabin
interior products manufacturers, thereby adversely affecting the Company's
revenues and margins.
Recently, turbulence in the financial and currency markets of many
Asian countries has led to uncertainty with respect to the economic outlook for
these countries. Of the Company's $590 million of backlog at May 30, 1998, the
Company had $45 million with Asian carriers deliverable in fiscal 1999 and a
further $76 million deliverable in subsequent fiscal years. Of such Asian
carrier backlog, approximately $36 million was with JAL, Singapore Airlines and
Cathay Pacific. Although not all carriers have been affected by the current
economic events in the Pacific Rim, certain carriers could cancel or defer their
existing orders and future orders from airlines in these countries may be
adversely affected.
New Product Introductions and Technological Change
Airlines currently are taking delivery of a new generation of aircraft
and demanding increasingly sophisticated cabin interior products. As a result,
the cabin interior configurations of commercial aircraft are becoming more
complex and will require more technologically advanced and integrated products.
For example, airlines increasingly are seeking sophisticated in-flight
entertainment systems, such as the MDDS interactive individual passenger
in-flight entertainment system developed by B/E. The Company expects that
in-flight entertainment systems, including live broadcast television on
narrow-body aircraft, will provide a significant percentage of its future
revenues. Development of the MDDS and related in-flight entertainment systems
required substantial investment by the Company and third parties in research,
development and engineering. The future success of the Company may depend to
some extent on its ability to manufacture successfully and deliver, on a timely
basis, in-flight entertainment products and to have these products perform at
the level expected by B/E's customers and their passengers, as well as the
Company's ability to continue to develop, profitably manufacture and deliver, on
a timely basis, other technologically advanced, reliable high-quality products,
which can be readily integrated into complex cabin interior configurations.
-5-
<PAGE>
Competition
The Company competes with a number of established companies that have
significantly greater financial, technological and marketing resources than the
Company. Although the Company has achieved a significant share of the market for
a number of its commercial airline cabin interior products, there can be no
assurance that the Company will be able to maintain this market share. The
ability of the Company to maintain its market share will depend not only on its
ability to remain the supplier of retrofit and refurbishment products and spare
parts on the commercial fleets on which its products are currently in service,
but also on its success in causing its products to be selected for installation
in new aircraft, including next-generation aircraft, expected to be purchased by
the airlines over the next decade, and in avoiding product obsolescence.
The Company's primary competitors in the market for new passenger
entertainment products, including individual seat video and in-flight
entertainment and cabin management systems, are Matsushita Electronics and
Rockwell Collins, each of which has significantly greater technological
capabilities and financial and marketing resources than the Company.
Adverse Consequences of Financial Leverage
The Company has substantial indebtedness and, as a result, significant
debt service obligations. As of May 30, 1998, the Company had approximately
$436.2 million aggregate amount of indebtedness outstanding, representing
approximately 80% of total capitalization. As a result of B/E's acquisition of
the minority equity interest in FSI held by the ESOP, B/E will incur an
additional $22.0 million of indebtedness. The degree of the Company's leverage
could have important consequences to purchasers or holders of its shares of
Common Stock, including: (i) limiting the Company's ability to obtain additional
financing to fund future working capital requirements, capital expenditures,
acquisitions or other general corporate requirements; (ii) requiring a
substantial portion of the Company's cash flow from operations to be dedicated
to debt service requirements, thereby reducing the funds available for
operations and further business opportunities; and (iii) increasing the
Company's vulnerability to adverse economic and industry conditions. In
addition, since any borrowings under the Company's bank credit facilities will
be at variable rates of interest, the Company will be vulnerable to increases in
interest rates. The Company may incur additional indebtedness in the future,
although its ability to do so will be restricted by the indentures governing the
Company's 97/8% Senior Subordinated Notes due 2006 (the "97/8% Notes") and 8%
Senior Subordinated Notes due 2008 (the "8% Notes") and by the terms of its
existing credit facilities with The Chase Manhattan Bank (the "Bank Credit
Facility"). The ability of the Company to make scheduled payments under its
present and future indebtedness will depend on, among other things, the future
operating performance of the Company and the Company's ability to refinance its
indebtedness when necessary. Each of these factors is to a large extent subject
to economic, financial, competitive and other factors beyond the Company's
control.
The Company's bank credit facilities and the indentures governing the
97/8% Notes and 8% Notes contain numerous financial and operating covenants that
will limit the discretion of the Company's management with respect to certain
business matters. These covenants will place significant restrictions on, among
other things, the ability of the Company to incur additional indebtedness, to
create liens or other encumbrances, to make certain payments and investments,
including dividend payments and to sell or otherwise dispose of assets and merge
or consolidate with other entities. The Company's bank credit facilities also
require the Company to meet certain financial ratios and tests. A failure to
comply with the obligations contained in the Company's bank credit facilities,
or the indentures governing the 97/8% Notes and 8% Notes, could result in an
event of default under the Company's Bank Credit Facility, or the aforementioned
indentures, which could permit acceleration of the related debt and acceleration
of debt under other instruments that may contain cross-acceleration or
cross-default provisions.
Customer Delivery Requirements
The commercial aircraft cabin interior products industry is currently
experiencing a period of rapid growth. From February 22, 1997 to May 30, 1998,
the Company has experienced an approximately 42% increase in its backlog. The
ability of the Company to receive new contract awards and to deliver its
existing backlog is dependent upon its (and its suppliers') ability to increase
deliveries to meet the recent surge in demand. Although the Company believes it
has sufficient
-6-
<PAGE>
manufacturing capacity to meet customer demand, there can be no assurance that
the Company, or its suppliers, will be able to meet the increased product
delivery requirements.
General Aviation Acquisitions; Ability to Integrate Acquired Businesses
Since 1987, B/E has acquired thirteen companies. Through several recent
acquisitions, the Company has expanded its activities from the commercial to the
general aviation market. There can be no assurance that the Company will be
successful in entering the general aviation market. The Company intends to
consider future strategic acquisitions in the commercial airline and general
aviation cabin interior industries, some of which could be material to the
Company. The ability of the Company to continue to achieve its goals will depend
upon its ability to integrate effectively the recent and any future acquisitions
and to achieve cost efficiencies. Although B/E has been successful in the past
in doing so, there can be no assurance that the Company will continue to be
successful. See "The Company -- Recent Acquisitions."
Regulation
The Federal Aviation Administration (the "FAA") prescribes standards
and licensing requirements for aircraft components, including virtually all
commercial airline and general aviation cabin interior products, and licenses
component repair stations within the United States. Comparable agencies regulate
these matters in other countries. If the Company fails to obtain a required
license for one of its products or services or loses a license previously
granted, the sale of the subject product or service would be prohibited by law
until such license is obtained or renewed. In addition, designing new products
to meet existing FAA requirements and retrofitting installed products to comply
with new FAA requirements can be both expensive and time-consuming.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained in "Risk Factors" and elsewhere, and
incorporated by reference herein, including statements regarding the business
strategy of the Company, potential strategic acquisitions, the products which
the Company expects to offer, anticipated development and marketing expenditures
and regulatory reform, the intent, belief or current expectations of the
Company, its directors or its officers, primarily with respect to the future
operating performance of the Company, and other statements contained herein
regarding matters that are not historical facts, are "forward-looking"
statements (as such term is defined in the Private Securities Litigation Reform
Act of 1995). In addition, when used in this Prospectus and elsewhere, the words
"believe," "anticipate," "expect," intend" and similar expressions are intended
to identify forward-looking statements. Because such statements include risks
and uncertainties, actual results may differ materially from those expressed or
implied by such forward-looking statements. Factors that could cause actual
results to differ materially from those expressed or implied by such
forward-looking statements include, but are not limited to, the factors set
forth in "Risk Factors."
USE OF PROCEEDS
Except as provided by the SMR Acquisition Agreement, the Company will
not receive any of the proceeds from the sale of the Shares of Common Stock by
the Selling Stockholders. See "Selling Stockholders." Any net proceeds received
by the Company will be used for general corporate purposes, including working
capital requirements to support increased sales, and possible investments in
strategic acquisitions.
SELLING STOCKHOLDERS
General
B/E has recently made several acquisitions and, pursuant to the
provisions of the agreements governing such acquisitions, B/E agreed to register
shares of Common Stock issued as consideration in such acquisitions. Each of the
Selling Stockholders received, or will receive, the Shares of Common Stock
offered hereby in connection with either the acquisition of ASI, ALC or SMR. All
of the Shares which may be offered hereby are for the account of such Selling
Stockholders. Except as provided by the Share Disposition Agreement (as defined
herein) and the Merger Agreements, the
-7-
<PAGE>
Selling Stockholders may sell the Shares of Common Stock offered hereby from
time to time and, as a result, no estimate can be given as of the date hereof as
to the amount of Shares of Common Stock to be offered for sale by the Selling
Stockholders or as to the amount of Common Stock that will be held by the
Selling Stockholders upon termination of such offering. See "Plan of
Distribution." The number and percentage of Shares beneficially owned before the
offering by the Selling Stockholders, the number of Shares to be sold and the
number of Shares beneficially owned after the offering will be set forth in an
accompanying Prospectus Supplement, to the extent necessary.
The following are brief summaries of certain provisions of the
agreements governing the Company's recent acquisitions of ASI, ALC and SMR. Such
summaries do not purport to be complete and are subject to, and are qualified in
their entirety by reference to, such agreements which will be filed as exhibits
to the Registration Statement. Capitalized terms are defined in the respective
agreements unless otherwise defined herein. Whenever any term therein is
referred to, such definition is incorporated herein by reference.
The ASI Acquisition
On March 27, 1998, pursuant to the terms of an Agreement and Plan of
Reorganization and Merger dated as of March 27, 1998, by and among B/E, BE
Acquisition Corp., ASI, the Gregory and Deborah Fodell Partnership, Ltd. (the
"Fodell Partnership I"), the Gregory and Deborah Fodell Partnership II, Ltd.
(the "Fodell Partnership II" and collectively with the Fodell Partnership I, the
"ASI Sellers") and Gregory N. Fodell (the "ASI Merger Agreement"), B/E acquired
from the ASI Sellers all of the outstanding stock of ASI (the "ASI
Acquisition"), a company based in Houston, Texas that services, cleans and
repairs aircraft interior parts and products. In exchange, the ASI Sellers
received a total of 201,895 shares of Common Stock, representing a purchase
price of approximately $5.6 million. B/E accounted for the acquisition of ASI as
a pooling of interests. Pursuant to the terms of the ASI Merger Agreement, B/E
agreed to register the shares of Common Stock received by the ASI Sellers.
The shares of Common Stock offered by the ASI Sellers by this
Prospectus were initially issued to the ASI Sellers pursuant to the ASI Merger
Agreement. Gregory N. Fodell is a general partner and limited partner of each of
the ASI Sellers and is currently a Vice President - Major Accounts of B/E
Aerospace Services, Inc., a wholly-owned subsidiary of the Company. Immediately
following the closing under the ASI Merger Agreement, the Fodell Partnership I
beneficially owned 18,354 shares of Common Stock and the Fodell Partnership II
beneficially owned 183,541 shares of Common Stock. The B/E Common Stock
beneficially owned by the ASI Sellers represented approximately 0.7% of the
shares of the Company's Common Stock outstanding on July 27, 1998, on a pro
forma basis as if all of the Shares offered hereby had been issued on July 27,
1998.
The ALC Acquisition
On July 30, 1998, pursuant to the terms of an Agreement and Plan of
Reorganization and Merger dated as of July 30, 1998, by and among B/E, BE
Aerospace Acquisition Corp, Aerospace Lighting Corp., and Louis J. Francisco,
Elsie M. Francisco, Michael J. Tenzyk, Judith D. Tenzyk, Trustee U/A Gertrude
Brown dated 1/7/92 and Trustee U/A William Brown dated 1/7/92 (together, the
"ALC Sellers") (the "ALC Merger Agreement"), B/E acquired from the ALC Sellers
all of the outstanding stock of Aerospace Lighting Corporation ("ALC"), a
company based in Holbrook, New York, that produces interior fluorescent lighting
systems for business and corporate jet aircraft. In exchange, the ALC Sellers
received a total of 964,780 shares of Common Stock, representing a purchase
price of approximately $28.1 million. B/E accounted for the acquisition of ALC
as a pooling of interests. Pursuant to the terms of the ALC Merger Agreement,
B/E agreed to register the shares of Common Stock received by the ALC Sellers.
The Shares of Common Stock offered by the ALC Sellers by this
Prospectus were originally issued to the ALC Sellers pursuant to the ALC Merger
Agreement. Immediately following the closing under the ALC Merger Agreement,
Louis J. Francisco owned 260,198 shares of Common Stock, Elsie M. Francisco
owned 61,395 shares of Common Stock, Michael J. Tenzyk owned 160,797 shares of
Common Stock, Judith D. Tenzyk owned 160,797 shares of Common Stock, Trustee U/A
Gertrude Brown dated 1/7/92 owned 78,936 shares of Common Stock and Trustees U/A
William Brown Dated 1/7/92 owned 242,657 shares of Common Stock. The Common
Stock received by the ALC Sellers pursuant to the ALC
-8-
<PAGE>
Merger Agreement constitute all of the shares of the Company's Common Stock held
by them. The B/E Common Stock owned by the ALC Sellers represented approximately
3.4% of the shares of the Company's Common Stock outstanding on July 27, 1998,
on a pro forma basis as if all of the Shares offered hereby had been issued on
July 27, 1998.
The SMR Acquisition
On July 21, 1998, pursuant to the terms of an Acquisition Agreement
dated as of July 21, 1998, by and among B/E, Oscar J. Mifsud, Patrick L. Ryan,
David B. Smith, the Oscar J. Mifsud Trust - 1998, the Patrick L. Ryan Trust -
1998 and the David B. Smith Trust - 1998 (together, the "SMR Sellers" and
collectively with the ASI Sellers and the ALC Sellers, the "Selling
Stockholders") (the "SMR Acquisition Agreement" and, together with the ASI
Merger Agreement and the ALC Merger Agreement, the "Merger Agreements"), B/E
agreed to acquire from the SMR Sellers all of the outstanding stock of SMR
Aerospace, Inc., all of the outstanding membership interests of SMR Developers
LLC, and all of the outstanding partnership interests of SMR Associates for a
total purchase price of approximately $120.0 million, subject to adjustment (the
"SMR Purchase Price). Pursuant to the SMR Acquisition Agreement, the Company
will issue 4,000,000 shares of Common Stock to the SMR Sellers. The Company will
also pay $22.0 million in cash to the ESOP of FSI, a subsidiary of SMR
Aerospace, Inc., pursuant to a separate Stock Purchase Agreement between the
ESOP and B/E, to purchase the minority equity interest in FSI held by the ESOP.
To the extent the Net Proceeds (as defined in the SMR Acquisition Agreement)
from the sale of the 4,000,000 shares of Common Stock is less than the SMR
Purchase Price, the Company will pay such difference to the SMR Sellers with
funds drawn under the Bank Credit Facility. B/E's obligations to the SMR Sellers
under the SMR Acquisition Agreement are secured by an irrevocable stand-by
letter of credit from The Chase Manhattan Bank in favor of the SMR Sellers. If
such Net Proceeds exceed the SMR Purchase Price, the SMR Sellers will remit such
excess to the Company. B/E intends to account for the acquisition of SMR as a
purchase. Pursuant to the terms of the SMR Acquisition Agreement, B/E agreed to
register the shares of Common Stock received by the SMR Sellers.
SMR is a leader in providing design, integration, installation and
certification services for commercial aircraft passenger cabin interiors. SMR
provides a broad range of interior reconfiguration services which allow airlines
to change the size of certain classes of service, modify and upgrade the
seating, install telecommunications or entertainment options, relocate galleys,
lavatories, and overhead bins, and install crew rest compartments. SMR is also a
supplier of structural design and integration services, including airframe
modifications for passenger-to-freighter conversions. In addition, SMR provides
a variety of niche products and components that are used to facilitate
reconfigurations and conversions. SMR's services are performed primarily on an
aftermarket basis, and its customers include major airlines, such as United
Airlines, Japan Airlines, British Airways, Air France, Cathay Pacific and
Qantas, as well as Boeing, Airborne Express and Federal Express.
The shares of Common Stock offered by the SMR Sellers by this
Prospectus are expected to be originally issued to the SMR Sellers pursuant to
the SMR Acquisition Agreement. The Common Stock expected to be issued to the SMR
Sellers is expected to constitute all of the shares of Common Stock that will be
beneficially owned by the SMR Sellers and represent approximately 14.2% of the
shares of the Company's Common Stock outstanding on July 27, 1998, on a pro
forma basis as if all of the Shares offfered hereby had been issued on July 27,
1997
PLAN OF DISTRIBUTION
The Selling Stockholders may sell all or a portion of the Shares of
Common Stock offered hereby in private transactions or in the over-the-counter
market at prices related to the prevailing prices of the shares on the Nasdaq
National Market. The Selling Stockholders may be deemed to be underwriters
within the meaning of the Securities Act. Any Selling Stockholder may effect
such transactions by selling to or through one or more broker-dealers, and such
broker-dealers may receive compensation in the form of underwriting discounts,
concessions or commissions from the Selling Stockholders. The Selling
Stockholders and any broker-dealers that participate in the distribution may
under certain circumstances be deemed to be underwriters within the meaning of
the Securities Act, and any commissions received by such broker-dealers and any
profits realized on the resale of shares by them may be deemed to be
underwriting discounts and commissions under the Securities Act. The Merger
Agreements provide that the Company indemnify the Selling Stockholders against
certain
-9-
<PAGE>
liabilities, including liabilities under the Securities Act. The Merger
Agreements also provide for the indemnification of the Company by the Selling
Stockholders for certain liabilities, including liabilities under the Securities
Act.
The SMR Sellers may sell the shares of Common Stock offered hereby from
time to time subject to the terms of the SMR Acquisition Agreement and the Share
Disposition Agreement (the "Share Disposition Agreement") by and between B/E and
the SMR Sellers dated July 21, 1998, pursuant to which the SMR Sellers agreed to
sell the SMR Shares only on such terms and conditions, and at such times as
directed and approved by B/E. The ASI Sellers and the ALC Sellers may sell
shares of Common Stock offered hereby from time to time subject to the terms of
the ASI Merger Agreement and the ALC Merger Agreement, respectively.
To the extent required under the Securities Act, a supplemental
prospectus will be filed, disclosing (a) the name of any Selling Stockholder;
(b) the name of any broker-dealers effecting the transaction on behalf of the
Selling Stockholder; (c) the number of shares involved; (d) the price at which
such shares are to be sold; (e) the commissions paid or discounts or concessions
allowed to such broker-dealer, where applicable; (f) that such broker-dealer did
not conduct any investigation to verify the information set out or incorporated
by reference in this Prospectus, as supplemented, and (g) other facts material
to the transaction.
Pursuant to the Merger Agreements, the Company has agreed to pay
substantially all fees and expenses incident to the preparation, filing,
amending and supplementing of the Registration Statement of which this
Prospectus is a part and any registration, filing, qualification and other fees
and expenses of complying with state Blue Sky or securities law. In addition, in
connection with the acquisition of SMR, the Company has agreed to pay all
applicable stock transfer taxes, brokerage commissions, underwriting discounts
or commissions and any fees of the SMR Sellers' counsel. In connection with the
acquisitions of ASI and ALC, the ASI Sellers and the ALC Sellers will pay all
applicable stock transfer taxes, brokerage commissions, underwriting discounts
or commissions and any fees of such Selling Stockholders' counsel.
Pursuant to the Merger Agreements, and subject to certain conditions,
the Company has agreed to keep the Registration Statement relating to the
offering and sale by the Selling Stockholders of the shares of Common Stock
continuously effective until a fixed date following the effectiveness of the
Registration Statement or such earlier date as of which all shares of Common
Stock registered hereunder have been disposed of.
DESCRIPTION OF CAPITAL STOCK
Common Stock
The Company is authorized to issue 50,000,000 shares of Common Stock,
$0.01 par value, of which 23,256,268 shares were outstanding as of July 27,
1998, and held by approximately 516 stockholders of record. Holders of Common
Stock are entitled to one vote per share on all matters to be voted upon by the
stockholders and to receive such dividends as may be declared by the Board of
Directors out of funds legally available therefor. The indentures relating to
the Company's 97/8% Notes and 8% Notes and the Bank Credit Agreement, however,
currently restrict dividend payments by the Company to its stockholders. In the
event of a liquidation, dissolution or winding up of the Company, holders of
Common Stock have the right to a ratable portion of the assets remaining after
payment of liabilities. Holders of Common Stock do not have cumulative voting,
preemptive, redemption or conversion rights. All outstanding shares of Common
Stock are, and the shares to be sold in this offering will be, fully paid and
non-assessable.
Preferred Stock
The Company's Restated Certificate of Incorporation (the "Certificate")
provides, among other things, for the authorization of 1,000,000 shares of
Preferred Stock, $0.01 par value (the "Preferred Stock"). The shares of
Preferred Stock may be issued from time to time at the discretion of the Board
of Directors without stockholder approval. The Board of Directors is authorized
to issue these shares in different classes and series and, with respect to each
class or series, to determine the dividend rate, the redemption provisions,
conversion provisions, liquidation preference and other rights and privileges
not in conflict with the Certificate. No shares of Preferred Stock are
outstanding, and the Company has no
-10-
<PAGE>
immediate plans to issue any Preferred Stock. While issuance of Preferred Stock
could provide needed flexibility in connection with possible acquisitions and
other corporate purposes, such issuance could also make it more difficult for a
third party to acquire a majority of the outstanding voting stock of the Company
or discourage an attempt to gain control of the Company. In addition, the Board
of Directors, without stockholder approval, can issue shares of Preferred Stock
with voting and conversion rights which could adversely affect the voting power
and other rights of the holders of Common Stock.
Directors' Exculpation and Indemnification
The Certificate provides that no director of the Company shall be
liable to the Company or its stockholders for monetary damages for any breach of
fiduciary duty as a director, except to the extent otherwise required by the
Delaware General Corporation Law (the "DGCL"). The effect of this provision of
the Certificate is to eliminate the rights of the Company and its stockholders
(through stockholders' derivative suits on behalf of the Company) to recover
monetary damages against a director for breach of a fiduciary duty of care as a
director. This provision does not limit or eliminate the rights of the Company
or any stockholder to seek non-monetary relief, such as an injunction or
rescission in the event of a breach of a director's duty of care. In addition,
the Certificate provides that, if the DGCL is amended to authorize the further
elimination or limitation of the liability of a director, then the liability of
the directors shall be eliminated or limited to the fullest extent permitted by
the DGCL, as so amended. These provisions will not alter the liability of
directors under federal or state securities laws. The Certificate also includes
provisions for the indemnification of the Company's directors and officers to
the fullest extent permitted by Section 145 of the DGCL.
Election and Removal of Directors
The Certificate classifies the board of directors into three classes,
as nearly equal in number as possible, so that each director will serve for
three years, with one class of directors being elected each year. The
Certificate also provides that directors may be removed for cause only with the
approval of the holders of at least two-thirds of the voting power of the
Company's shares entitled to vote generally in the election of directors at an
annual meeting or special meeting called for such purpose. In addition, the
Certificate requires at least two-thirds of the voting power of the Company's
shares entitled to vote generally in the election of directors at an annual
meeting or special meeting called for such purpose to alter, amend or repeal the
provisions relating to the classified board and removal of directors described
above.
Management believes that the Certificate provisions described in the
preceding paragraph (the "Provisions"), taken together, reduce the possibility
that a third party could effect a change in the composition of the Company's
board of directors without the support of the incumbent board. The Provisions,
however, may have significant effects on the ability of stockholders of the
Company to change the composition of the incumbent board, to benefit from
transactions which are opposed by the incumbent board, to assume control of the
Company or effect a fundamental corporate transaction such as a merger.
Nevertheless, although the Company has not experienced any problems in the past
with the continuity or stability of the board, management believes that the
Provisions help assure the continuity and stability of the Company's policies in
the future, since the majority of the directors at any time will have prior
experience as directors of the Company.
Section 203 of the Delaware General Corporation Law
The Company is subject to the provisions of Section 203 of the DGCL.
That section provides, with certain exceptions, that a Delaware corporation may
not engage in any of a broad range of business combinations with a person or
affiliate, or associate of such person, who is an "interested stockholder" for a
period of three years from the date that such person became an interested
stockholder unless: (i) the transaction resulting in a person becoming an
interested stockholder, or the business combination, is approved by the board of
directors of the corporation before the person becomes an interested
stockholder, (ii) the interested stockholder acquires 85% or more of the
outstanding voting stock of the corporation in the same transaction that makes
it an interested stockholder (excluding shares owned by persons who are both
officers and directors of the corporation, and shares held by certain employee
stock ownership plans); or (iii) on or after the date the person becomes an
interested stockholder, the business combination is approved by the
corporation's board of directors and by the holders of at least 662/3% of the
corporation's outstanding voting stock at an annual or special meeting,
excluding shares owned by the interested stockholder. An "interested
stockholder" is defined as any person that is (i) the owner of 15% or
-11-
<PAGE>
more of the outstanding voting stock of the corporation or (ii) an affiliate or
associate of the corporation and was the owner of 15% or more of the outstanding
voting stock of the corporation at any time within the three-year period
immediately prior to the date on which it is sought to be determined whether
such person is an interested stockholder.
Transfer Agent and Registrar
The transfer agent and registrar for the Company's Common Stock is
Boston EquiServe L.P., Canton, Massachusetts 02021.
LEGAL MATTERS
Certain legal matters with respect to the validity of the Shares of
Common Stock offered hereby will be passed upon for the Company by Shearman &
Sterling, New York, New York.
EXPERTS
The consolidated financial statements and schedule of the Company
appearing in its annual report on Form 10-K for the fiscal year ended February
28, 1998, have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their reports included therein and incorporated herein by reference.
Such consolidated financial statements and schedule are incorporated herein by
reference in reliance upon such reports given upon the authority of such firm as
experts in accounting and auditing.
-12-
<PAGE>
================================================================================
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus or any Prospectus
Supplement and, if given or made, such information or representations must not
be relied upon as having been authorized. This Prospectus and any Prospectus
Supplement does not constitute an offer to sell or the solicitation of an offer
to buy any securities other than the securities to which it relates or an offer
to sell or the solicitation of an offer to buy such securities in any
circumstances in which such offer or solicitation is unlawful. Neither the
delivery of this Prospectus or any Prospectus Supplement nor any sale made
hereunder or thereunder shall, under any circumstances, create any implication
that there has been no change in the affairs of the Company since the date
hereof or thereof or that the information contained herein or therein is correct
as of any time subsequent to the date of such information.
-------------
TABLE OF CONTENTS
Page
----
Prospectus
Available Information.........................................................2
Incorporation of Certain Documents
by Reference..............................................................2
The Company...................................................................3
Risk Factors..................................................................5
Cautionary Statement Regarding
Forward-Looking Statements................................................7
Use of Proceeds...............................................................7
Selling Stockholders..........................................................7
Plan of Distribution..........................................................9
Description of Capital Stock.................................................10
Legal Matters................................................................12
Experts......................................................................12
================================================================================
================================================================================
BE Aerospace, Inc.
5,166,675 Shares of Common Stock
----------
PROSPECTUS
----------
July , 1998
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Securities and Exchange Commission registration fee....... $ 49,955
Printing.................................................. **
Legal fees and expenses................................... **
Accounting fees and expenses.............................. **
Miscellaneous............................................. **
-----------
Total............................................ $ **
===========
- ----------------
* Estimated
** To be provided by amendment
Item 15. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law, as amended
("DGCL") provides that a corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding whether civil, criminal or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amount paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any action or
proceeding, had no reasonable cause to believe his conduct was unlawful. Section
145 further provides that a corporation similarly may indemnify any such person
serving in any such capacity who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the corporation to procure a judgment in its favor, against expenses actually
and reasonably incurred in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Delaware Court of Chancery or such other
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, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
Section 102(b)(7) of the DGCL permits a corporation to include in its
certificate of incorporation a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that such provision
shall not eliminate or limit the liability of a director: (i) for any breach of
the director's duty of loyalty to the corporation 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 the DGCL (relating to
unlawful payment of dividends and unlawful stock purchase and redemption) or
(iv) for any transaction from which the director derived an improper personal
benefit.
The Registrant's Restated Certificate of Incorporation (the
"Certificate") provides that the Company's Directors shall be liable to the
Registrant or its stockholders for monetary damages for breach of fiduciary duty
as a director except to the extent that exculpation from liabilities is not
permitted under the DGCL as in effect at the time such liability is determined.
The Registrant's Certificate further provides that the Registrant shall
indemnify its directors and officers to the fullest extent permitted by the
DGCL.
II-1
<PAGE>
The directors and officers of the Company are covered under directors'
and officer's liability insurance policies maintained by the Company.
Item 16. Exhibits and Financial Statement Schedules
Exhibit
Number Description
- ------ -----------
Exhibit 3 Articles of Incorporation and By-Laws
3.1 Amended and Restated Certificate of Incorporation*
3.2 Certificate or Amendment of the Restated Certificate
of Incorporation*
3.3 Amended and Restated By-Laws*
Exhibit 4 Instruments defining the rights of security
holders, including debentures
4.1 Specimen Common Stock Certificate*
4.2 Form of Note for the Registrant's Series B 9-7/8%
Senior Subordinated Notes*
4.3 Indenture dated January 24, 1996 between Fleet
National Bank, as trustee, and the Registrant
relating to the Registrant's 9-7/8% Senior
Subordinated Notes and Series B 9-7/8% Senior
Subordinated Notes*
4.4 Indenture dated February 13, 1998 for the
Registrant's issue of 8% Senior Subordinated Notes*
4.5 Form of Note for the Registrant's 8% Senior
Subordinated Notes*
4.6 Form of Stockholders' Agreement by and among the
Registrant, Summit Ventures II, L.P., Summit
Investors II, L.P. and Wedbush Capital Partners*
Exhibit 5
5.1 Opinion of Shearman & Sterling**
Exhibit 10(i) Material Contracts
10.1 Supply Agreement dated as of April 17, 1990 between
the Registrant and Applied Extrusion Technologies,
Inc.*
10.2 Amended and Restated Credit Agreement (the "Chase
Credit Agreement"), dated as of May 18, 1994 among
the Registrant, the banks named therein and The Chase
Manhattan Bank, N.A. as Agent*
10.3 Amendment No. 1 dated May 18, 1994 to the Chase
Credit Agreement*
10.4 Second Amended and Restated Chase Credit Agreement
dated January 19, 1996*
10.5 Third Amended and Restated Chase Credit Agreement
dated May 29, 1997*
10.6 Fourth Amended and Restated Chase Credit Agreement
dated April 3, 1998*
10.7 Receivables Sales Agreement dated January 24, 1996
among the Registrant, First Trust of Illinois, N.A.
and Centrally Held Eagle Receivables Program, Inc.*
10.8 Escrow Agreement dated January 24, 1996 among the
Registrant, Eagle Industrial Product Corporation and
First Trust of Illinois, N.A. as Escrow Agent*
10.9 Acquisition Agreement dated as of December 14, 1995
by and among the Registrant, Eagle Industrial
Products Corporation, Eagle Industries, Inc. and
Great American Management and Investment, Inc.*
10.10 Asset Purchase Agreement dated as of April 16, 1998
by and between Stanford Aerospace Group, Inc. and the
Registrant*
10.11 Stock Purchase Agreement dated as of March 31, 1998
by and between the Registrant and Puritan Bennet
Corporation*
10.12 Acquisition Agreement dated July 21, 1998 among the
Registrant and Sellers named therein**
Exhibit 10(ii) Leases
10.13 Lease dated May 15, 1992 between McDonnell Douglas
Company, as lessor, and the Registrant, as lessee,
relating to the Irvine, California property*
10.14 Lease dated September 1, 1992 relating to the
Wellington, Florida property*
10.15 Chesham, England Lease dated October 1, 1973 between
Drawheath Limited and the Peninsular and Oriental
Steam Navigation Company (assigned in February 1985)*
II-2
<PAGE>
10.16 Utrecht, The Netherlands Lease dated December 15,
1988 between the Pension Fund Foundation for Food
Supply Commodity Boards and Inventum*
10.17 Utrecht, The Netherlands Lease dated January 31, 1992
between G.W. van de Grift Onroerend Goed B.V. and
Inventum*
10.18 Lease dated October 25, 1993 relating to the property
in Longwood, Florida*
Exhibit 10(iii) Executive Compensation Plans and Arrangements
10.19 Amended and Restated 1989 Stock Option Plan
10.20 Directors' 1991 Stock Option Plan*
10.21 1990 Stock Option Agreement with Richard G.
Hamermesh*
10.22 1990 Stock Option Agreement with B. Martha Cassidy
10.23 1990 Stock Option Agreement with Jim C. Cowart*
10.24 1990 Stock Option Agreement with Petros A.
Palandjian*
10.25 1990 Stock Option Agreement with Hansjorg Wyss*
10.26 1991 Stock Option Agreement with Amin J. Khoury*
10.27 1991 Stock Option Agreement with Jim C. Cowart*
10.28 1992 Stock Option Agreement with Amin J. Khoury*
10.29 1992 Stock Option Agreement with Jim C. Cowart*
10.30 1992 Stock Option Agreement with Paul W. Marshall*
10.31 1992 Stock Option Agreement with David Lahar*
10.32 United Kingdom 1992 Employee Share Option Scheme*
10.33 1994 Employee Stock Purchase Plan*
10.34 Amended and Restated Employment Agreement dated as of
May 29, 1998 between the Registrant and Amin J.
Khoury*
10.35 Amended and Restated Employment Agreement dated as of
May 29, 1998 between the Registrant and Robert J.
Khoury*
10.36 Employment Agreement dated as of March 1, 1992
between the Registrant and Marco Lanza (the "Lanza
Agreement")*
10.37 Amendment No. 1 dated as of January 1, 1996 to the
Lanza Agreement*
10.38 Employment Agreement dated as of April 1, 1992
between the Registrant and G. Bernard Jewell*
10.39 Amended and Restated Employment Agreement dated as of
May 29, 1998 between the Registrant and Thomas P.
McCaffrey*
10.40 Amended and Restated Employment Agreement dated as of
May 29, 1998 between the Registrant and Paul E.
Fulchino*
10.41 BE Aerospace, Inc. Savings and Profit Sharing Plan
and Trust--Financial Statements for the Ten Months
Ended December 31, 1995 and the Year Ended February
28, 1995, Supplemental Schedules and Independent
Auditors' Report*
10.42 BE Aerospace, Inc. 1994 Employee Stock Purchase Plan
Financial Statements as of February 29, 1996 and
February 26, 1995; and for the Year Ended February
29, 1996 and the period from May 15, 1994 (inception)
to February 28, 1995 and Independent Auditors'
Report*
Exhibit 23 Consent of Experts and Counsel
Exhibit 23.1 Consent of Independent Accountants
23.2 Consent of Shearman & Sterling (Included in Exhibit
5.1)
Exhibit 24 Power of Attorney
24.1 Power of Attorney (Included on page II-6)
Exhibit 99
99.1 Agreement and Plan of Reorganization and Merger dated
March 27, 1998 by and among the Registrant, BE
Acquisition Corp., Aerospace Interiors, Inc., Gregory
and Deborah Fodell Partnership, Ltd., Gregory and
Deborah Fodell Partnership II, Ltd. And Gregory N.
Fodell**
II-3
<PAGE>
99.2 Agreement and Plan of Reorganization and Merger dated
as of July 30, 1998 by and among the Registrant, BE
Aerospace Acquisition Corp., Aerospace Lighting
Corp., and Louis J. Francisco, Elsie M. Francisco,
Michael J. Tenzyk, Judith D. Tenzyk, Trustees U/A
Gertrude Brown dated 1/7/92 and Trustee U/A William
Brown dated 1/7/92.**
- -------------------
* Previously filed and incorporated by reference herein. See Exhibit Index.
** To be filed by amendment.
Item 17. Undertakings
The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act, unless the information required to be included in
such post-effective amendment is contained in a periodic report filed
by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act and incorporated herein by reference;
(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, unless the information required to be
included in such post-effective amendment is contained in a periodic
report filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act and incorporated herein by reference.
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, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any securities being registered which remain unsold at the termination of the
offering.
(4) 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 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.
(5) The undersigned registrant hereby undertakes to deliver or cause to
be delivered with the prospectus, to each person to whom the prospectus is sent
or given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act; and, where
interim financial information is required to be presented by Article 3 of
Regulation S-X is not
II-4
<PAGE>
set forth in the prospectus, to deliver, or cause to be delivered to each person
to whom the prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to provide such
financial information.
(6) 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 provisions described in Item 15, or otherwise,
the registrant has been advised that in the opinion of the 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 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.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company has
duly caused this Registration Statement on Form S-3 to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Wellington and the
State of Florida, on the 30th day of July, 1998.
BE AEROSPACE, INC.
By: /s/ Amin J. Khoury
-------------------------------------
Title: Chairman of the Board of Directors
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities indicated
below on the 30th day of July, 1998. Each person whose signature appears below
hereby authorizes and appoints Amin J. Khoury, Thomas P. McCaffrey and Robert J.
Khoury, and each of them, with full power of substitution, to execute in the
name and on behalf of such person, any amendment or any post-effective amendment
to this Registration Statement and to file the same, with exhibits thereto, and
other documents in connection therewith, making such changes in this
Registration Statement as the Registrant deems appropriate, and appoints each of
Amin J. Khoury, Thomas P. McCaffrey and Robert J. Khoury and each of them, with
full power of substitution, attorney-in-fact to sign any amendment and any
post-effective amendment to this Registration Statement and to file the same,
with any exhibits thereto and other documents in connection therewith.
Signature Title
- --------- -----
/s/ Amin J. Khoury Chairman of the Board of Directors
- ----------------------------------
Amin J. Khoury
/s/ Robert J. Khoury Vice Chairman of the Board of Directors
- ---------------------------------- and Chief Executive Officer (principal
Robert J. Khoury executive officer)
/s/ Paul E. Fulchino President, Chief Operating Officer
- ---------------------------------- and Director
Paul E. Fulchino
/s/ Thomas P. McCaffrey Corporate Senior Vice President of
- ---------------------------------- Administration, Chief Financial Officer
Thomas P. McCaffrey 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/ Hansjorg Wyss Director
- ----------------------------------
Hansjorg Wyss
II-6
<PAGE>
Exhibit Index
Exhibit
Number Description
Exhibit 3 Articles of Incorporation and By-Laws
3.1 Amended and Restated Certificate of Incorporation(1)
3.2 Certificate or Amendment of the Restated Certificate of
Incorporation(2)
3.3 Amended and Restated By-Laws(14)
Exhibit 4 Instruments defining the rights of security holders,
including debentures
4.1 Specimen Common Stock Certificate(1)
4.2 Form of Note for the Registrant's Series B 9-7/8% Senior
Subordinated Notes(3)
4.3 Indenture dated January 24, 1996 between Fleet National Bank,
as trustee, and the Registrant relating to the Registrant's
9-7/8% Senior Subordinated Notes and Series B 9-7/8% Senior
Subordinated Notes(3)
4.4 Indenture dated February 13, 1998 for the Registrant's issue
of 8% Senior Subordinated Notes(4)
4.5 Form of Note for the Registrant's 8% Senior Subordinated
Notes(4)
4.6 Form of Stockholders' Agreement by and among the Registrant,
Summit Ventures II, L.P., Summit Investors II, L.P. and
Wedbush Capital Partners(5)
Exhibit 5
5.1 Opinion of Shearman & Sterling**
Exhibit 10(i) Material Contracts
10.1 Supply Agreement dated as of April 17, 1990 between the
Registrant and Applied Extrusion Technologies, Inc.(1)
10.2 Amended and Restated Credit Agreement (the "Chase Credit
Agreement"), dated as of May 18, 1994 among the Registrant,
the banks named therein and The Chase Manhattan Bank, N.A. as
Agent(6)
10.3 Amendment No. 1 dated May 18, 1994 to the Chase Credit
Agreement(7)
10.4 Second Amended and Restated Chase Credit Agreement dated
January 19, 1996(3)
10.5 Third Amended and Restated Chase Credit Agreement dated May
29, 1997(4)
10.6 Fourth Amended and Restated Chase Credit Agreement dated
April 3, 1998(4)
10.7 Receivables Sales Agreement dated January 24, 1996 among the
Registrant, First Trust of Illinois, N.A. and Centrally Held
Eagle Receivables Program, Inc.(3)
10.8 Escrow Agreement dated January 24, 1996 among the Registrant,
Eagle Industrial Product Corporation and First Trust of
Illinois, N.A. as Escrow Agent(3)
<PAGE>
10.9 Acquisition Agreement dated as of December 14, 1995 by and
among the Registrant, Eagle Industrial Products Corporation,
Eagle Industries, Inc. and Great American Management and
Investment, Inc.(8)
10.10 Asset Purchase Agreement dated as of April 16, 1998 by and
between Stanford Aerospace Group, Inc. and the Registrant(9)
10.11 Stock Purchase Agreement dated as of March 31, 1998 by and
between the Registrant and Puritan Bennet Corporation(10)
10.12 Acquisition Agreement dated July 21, 1998 among the
Registrant and Sellers named therein**
Exhibit 10(ii) Leases
10.13 Lease dated May 15, 1992 between McDonnell Douglas Company,
as lessor, and the Registrant, as lessee, relating to the
Irvine, California property(2)
10.14 Lease dated September 1, 1992 relating to the Wellington,
Florida property(2)
10.15 Chesham, England Lease dated October 1, 1973 between
Drawheath Limited and the Peninsular and Oriental Steam
Navigation Company (assigned in February 1985)(14)
10.16 Utrecht, The Netherlands Lease dated December 15, 1988
between the Pension Fund Foundation for Food Supply Commodity
Boards and Inventum(14)
10.17 Utrecht, The Netherlands Lease dated January 31, 1992 between
G.W. van de Grift Onroerend Goed B.V. and Inventum(14)
10.18 Lease dated October 25, 1993 relating to the property in
Longwood, Florida(6)
Exhibit 10(iii) Executive Compensation Plans and Arrangements
10.19 Amended and Restated 1989 Stock Option Plan(11)
10.20 Directors' 1991 Stock Option Plan(11)
10.21 1990 Stock Option Agreement with Richard G. Hamermesh(11)
10.22 1990 Stock Option Agreement with B. Martha Cassidy(11)
10.23 1990 Stock Option Agreement with Jim C. Cowart(11)
10.24 1990 Stock Option Agreement with Petros A. Palandjian(11)
10.25 1990 Stock Option Agreement with Hansjorg Wyss(11)
10.26 1991 Stock Option Agreement with Amin J. Khoury(11)
10.27 1991 Stock Option Agreement with Jim C. Cowart(11)
10.28 1992 Stock Option Agreement with Amin J. Khoury(11)
10.29 1992 Stock Option Agreement with Jim C. Cowart(11)
10.30 1992 Stock Option Agreement with Paul W. Marshall(11)
10.31 1992 Stock Option Agreement with David Lahar(11)
10.32 United Kingdom 1992 Employee Share Option Scheme(2)
10.33 1994 Employee Stock Purchase Plan(12)
10.34 Amended and Restated Employment Agreement dated as of May 29,
1998 between the Registrant and Amin J. Khoury (15)
<PAGE>
10.35 Amended and Restated Employment Agreement dated as of May 29,
1998 between the Registrant and Robert J. Khoury (15)
10.36 Employment Agreement dated as of March 1, 1992
between the Registrant and Marco Lanza (the "Lanza
Agreement")(14)
10.37 Amendment No. 1 dated as of January 1, 1996 to the Lanza
Agreement(13)
10.38 Employment Agreement dated as of April 1, 1992 between the
Registrant and G. Bernard Jewell(14)
10.39 Amended and Restated Employment Agreement dated as of May 29,
1998 between the Registrant and Thomas P. McCaffrey (15)
10.40 Amended and Restated Employment Agreement dated as of May 29,
1998 between the Registrant and Paul E. Fulchino (15)
10.41 BE Aerospace, Inc. Savings and Profit Sharing Plan and Trust
-- Financial Statements for the Ten Months Ended December 31,
1995 and the Year Ended February 28, 1995, Supplemental
Schedules and Independent Auditors' Report(14)
10.42 BE Aerospace, Inc. 1994 Employee Stock Purchase Plan
Financial Statements as of February 29, 1996 and February 26,
1995; and for the Year Ended February 29, 1996 and the period
from May 15, 1994 (inception) to February 28, 1995 and
Independent Auditors' Report(14)
Exhibit 23 Consent of Experts and Counsel
Exhibit 23.1 Consent of Independent Accountants*
23.2 Consent of Shearman & Sterling (Included in Exhibit 5.1)
Exhibit 24 Power of Attorney
24.1 Power of Attorney (Included on page II-6)
Exhibit 99
99.1 Agreement and Plan of Reorganization and Merger dated March
27, 1998 by and among the Registrant, BE Acquisition Corp.,
Aerospace Interiors, Inc., Gregory and Deborah Fodell
Partnership, Ltd., Gregory and Deborah Fodell Partnership II,
Ltd. And Gregory N. Fodell**
99.2 Agreement and Plan of Reorganization and Merger dated as of
July 30, 1998 by and among the Registrant, BE Aerospace
Acquisition Corp., Aerospace Lighting Corp., and Louis J.
Francisco, Elsie M. Francisco, Michael J. Tenzyk, Judith D.
Tenzyk, Trustees U/A Gertrude Brown dated 1/7/92 and Trustee
U/A William Brown dated 1/7/92.**
- -------------------
* Filed herein.
** To be filed by amendment.
(1) Incorporated by reference to the Company's Registration Statement on
Form S-1, as amended (No. 33-33689), filed with the Commission on March
7, 1990.
(2) Incorporated by reference to the Company's Registration Statement on
Form S-1, as amended (No. 33-54146), filed with the Commission on
November 3, 1992.
(3) Incorporated by reference to the Company's Registration Statement on
Form S-4 (No. 333-00433), filed with the Commission on January 26,
1996.
<PAGE>
(4) Incorporated by reference to the Company's Registration Statement on
Form S-4 (No. 333-47649), filed with the Commission on March 10, 1998.
(5) Incorporated by reference to the Company's Registration Statement on
Form S-2 (No. 33-66490), filed with the Commission on July 23, 1993.
(6) Incorporated by reference to the Company's Annual Report on Form 10-K
as amended for the Fiscal year ended February 26, 1994, filed with the
Commission on May 25, 1994.
(7) Incorporated by reference to the Company's Annual Report on Form 10-K
as amended for the Fiscal year ended February 25, 1995, filed with the
Commission on May 26, 1995.
(8) Incorporated by reference to the Company's Current Report on Form 8-K
dated December 14, 1995, filed with the Commission on December 28,
1995.
(9) Incorporated by reference to the Company's Current Report on Form 8-K
dated May 8, 1998, filed with the Commission on May 8, 1998.
(10) Incorporated by reference to the Company's Current Report on Form 8-K
dated March 31, 1998, filed with the Commission on April 27, 1998.
(11) Incorporated by reference to the Company's Registration Statement on
Form S-8 (No. 33-48119), filed with the Commission on May 26, 1992.
(12) Incorporated by reference to the Company's Registration Statement on
Form S-8 (No. 33-82894), filed with the Commission on August 16, 1994.
(13) Incorporated by reference to the Company's Current Report on Form 8-K
dated March 26, 1996, filed with the Commission on April 5, 1996.
(14) Incorporated by reference to the Company's Annual Report on Form 10-K
as amended for the Fiscal year ended February 28, 1998, filed with the
Commission on May 29, 1998.
(15) Incorporated by reference to the Company's Form 10-Q for the period
ended May 30, 1998, filed with the Commission on July 14, 1998.
Conformed Copy
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
B/E Aerospace, Inc. on Form S-3 of our reports dated April 15, 1998, appearing
in and incorporated by reference in the Annual Report on Form 10-K of B/E
Aerospace, Inc. for the year ended February 28, 1998 and to the reference to us
under the heading "Experts" in the Prospectus, which is part of this
Registration Statement.
/s/ DELOITTE & TOUCHE LLP
Costa Mesa, California
July 28, 1998
