As filed with the Securities and Exchange Commission on October 15, 1999
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------------
BE AEROSPACE, INC.
(Exact name of issuer as specified in its charter)
Delaware 06-1209796
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1400 Corporate Center Way
Wellington, Florida 33414
(Address of principal executive offices, including zip code)
AMENDED AND RESTATED 1989 STOCK OPTION PLAN
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
maximum Proposed maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered registered per share offering price registration fee
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par (1) (2) $14,043,750 $3,904.16
value $.01 per share 1,400,000 Shares $10.03125
- ------------------------------------------------------------------------------------------------------------------------
<FN>
(1) Includes 700,000 Shares under the Amended and Restated 1989 Stock Option Plan and 700,000 Shares
under the 1996 Stock Option Plan.
(2) The offering price of the 1,400,000 shares registered hereunder of $10.03125 per share has been estimated
solely for the purpose of determining the registration fee pursuant to Rule 457(c) and 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 October 14, 1999.
</FN>
</TABLE>
<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 Securities & Exchange Commission
(the "Commission"), are incorporated as of their respective dates in this
Registration Statement by reference.
(i) the Annual Report of BE Aerospace, Inc., a Delaware
corporation (the "Registrant"), on Form 10-K for the fiscal year ended
February 27, 1999;
(ii) the Registrant's Quarterly Reports on Form 10-Q for the
quarters ended May 29, 1999 and August 28, 1999; and
(iii) the description of the Common Stock contained in the
Prospectus filed as part of the Registrant's Registration Statement on
Form S-1 (no. 33-33689), as amended filed with the Commission on April
18, 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.
None.
Item 6. Indemnification of Directors and Officers.
(a) Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL") provides, in summary, that directors and officers of Delaware
corporations such as the Registrant are entitled, under certain circumstances,
to be indemnified against all expenses and liabilities (including attorneys'
fees) incurred by them as a result of suits brought against them in their
capacity as a director or officer if they acted in good faith and in a manner
they reasonably believed to be in or not opposed to the best interests of the
Registrant and, with respect to any criminal action or proceeding, if they had
no reasonable cause to believe their conduct was unlawful; provided that no
indemnification may be made against expenses in respect of any claim, issue or
matter as to which they shall have been adjudged to be liable to the Registrant,
unless and only to the extent that the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, they are fairly and
reasonably entitled to indemnity for such expenses which such court shall deem
proper. Any such indemnification may be made by the 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, eliminates the personal liability of each director to
the Registrant or its stockholders for monetary damages for breach of fiduciary
duty as a director, except (i) for breaches of such director's duty of loyalty
to the Registrant or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of Title 8 of the Delaware Code or (iv) for any
transaction from which such director derived an improper personal benefit.
3
<PAGE>
(c) Article 8 of the Registrant's Amended and Restated Certificate of
Incorporation, as amended, provides for the indemnification of each director and
officer of the Registrant against liabilities and expenses (including legal
fees) arising from any threatened, pending or contemplated legal proceeding to
which he may be a party or with which he may become involved by reason of being
or having been an officer or director of the Registrant. Such indemnification is
authorized to the fullest extent permitted under the Delaware General
Corporation Law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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 Certificate of Amendment of the Restated Certificate of
Incorporation (incorporated by reference to the Registrant's
Registration Statement on Form S-3 (No. 333-60209) filed
with the Commission on July 30, 1998).
4.4 Amended and Restated By-Laws (incorporated herein by reference
to the Registrant's Current Report on Form 8-K dated
November 12, 1998 filed with the Commission on November 18,
1998).
4.5 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).
4.6 Amendment No. 1 to the Amended and Restated 1989 Stock Option
Plan.
4.7 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).
4.8 Amendment No. 1 to the 1996 Stock Option Plan.
5 Opinion of Shearman & Sterling regarding the legality of the
securities being offered hereby.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Shearman & Sterling (contained in Exhibit 5).
24 Power of Attorney (included as part of the signature pages to
this Registration Statement).
4
<PAGE>
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of 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, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof;
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Wellington, State of Florida on the 15th day of
October 1999.
BE Aerospace, Inc.
By: /s/ Paul E. Fulchino
------------------------------------
Name: Paul E. Fulchino
Title: President and
Chief Operating Officer
6
<PAGE>
KNOW ALL MEN BY THESE PRESENTS that each person whose signature to this
Registration Statement appears below hereby constitutes and appoints each of
Robert J. Khoury, Edmund J. Moriarty and Thomas P. McCaffrey as such person's
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for such person and in such person's name, place and stead, in
any and all capacities, to sign any and all amendments to the Registration
Statement, including post-effective amendments, and registrations statements
filed pursuant to Rule 462 under the Securities Act, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Commission, and does hereby grant unto each said attorney-in-fact and agent full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as such person might or could do in person, hereby ratifying and
confirming all that each said attorney-in-fact and agent, or any substitute
therefor, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities indicated
as of the 15th day of October, 1999.
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
Thomas P. McCaffrey and accounting)
Director
- --------------------------
Jim C. Cowart
/s/ Richard G. Hamermesh Director
- --------------------------
Richard G. Hamermesh
Director
- --------------------------
Brian H. Rowe
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 Certificate of Amendment of the Restated
Certificate of Incorporation (incorporated by
reference to the Registrant's Registration Statement
on Form S-3 (No. 333-60209) filed with the
Commission on July 30, 1998).
4.4 Amended and Restated By-Laws (incorporated
herein by reference to the Registrant's Current
Report on Form 8-K dated November 12, 1998 filed
with the Commission on November 18, 1998).
4.5 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).
4.6 Amendment No. 1 to the Amended and Restated
1989 Stock Option Plan.
4.7 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).
4.8 Amendment No. 1 to the 1996 Stock Option Plan.
5 Opinion of Shearman & Sterling regarding the
legality of the securities being offered hereby.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Shearman & Sterling (contained in
Exhibit 5).
24 Power of Attorney (included as part of the
signature pages to this Registration Statement).
8
AMENDMENT NO. 1
TO THE BE AEROSPACE, INC.
AMENDED AND RESTATED 1989 STOCK OPTION PLAN
(As amended through 8/6/97)
WHEREAS, BE Aerospace, Inc., a Delaware Corporation (the
"Company") maintains the 1989 Stock Option Plan (the "Plan") in order to enhance
the ability of the Company and its subsidiaries (i) to attract and retain
employees, consultants or advisors, (ii) to reward such individuals for their
contributions to the success of the Company and (iii) to encourage such
individuals to take into account the long-term interests of the Company and its
subsidiaries thorough ownership of shares in the Company's common stock, par
value $.01 per share (the "Common Stock");
WHEREAS, the Plan provides that upon approval of the
stockholders, the Board of Directors of the Company (the "Board") may (i) extend
the term of the Plan at any time and (ii) increase the maximum number of shares
available under the Plan;
WHEREAS, at the Company's 1999 annual meeting of shareholders
held on August 4, 1999, the shareholders (i) extended the term of the Plan to
July 18, 2004 and (ii) authorized an increase the number of shares of Common
Stock available under the Plan by 700,000 to 4,400,000;
NOW, THEREFORE, effective as of August 4, 1999, the Company
amends the Plan as follows:
1. Paragraph 2 of Section 3 of the Plan is amended and
restated in its entirety as follows:
"No option shall be granted under the Plan after July 18,
2004; however, options previously granted may extend beyond
that date."
2. Section 4(a) shall be amended by deleting "3,250,000" from
the third line and replacing it with "4,400,000."
3. Except as set forth herein, the Plan is hereby ratified and
confirmed in all respects.
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this
Amendment effective as of August 4, 1999.
BE AEROSPACE, INC.
By: /s/ Jeffrey P. Holtzman
-------------------------------------
Name: Jeffrey P. Holtzman
Date: August 4, 1999
AMENDMENT NO. 1
TO THE BE AEROSPACE, INC.
1996 STOCK OPTION PLAN
(As amended through August 15, 1997)
WHEREAS, BE Aerospace, Inc., a Delaware Corporation (the
"Company") maintains the 1996 Stock Option Plan (the "Plan") in order to enhance
the ability of the Company and its subsidiaries to (i) to attract and retain
directors, employees, consultants or advisors, (ii) to reward such individuals
for their contributions to the success of the Company and (iii) to encourage
such individuals to take into account the long-term interests of the Company and
its subsidiaries thorough ownership of shares in the Company's common stock, par
value $.01 per share (the "Common Stock");
WHEREAS, the Plan provides that the Board of Directors of the
Company (the "Board") may amend the Plan at any time to increase the maximum
number of shares available under the Plan;
WHEREAS, the Board has authorized an increase in the number of
shares of Common Stock available under the Plan by 700,000 to 2,650,000;
NOW, THEREFORE, effective as of August 4, 1999, the Company
amends the Plan as follows:
1. Section 5(a) shall be amended by deleting "1,300,000" from
the third line and replacing it with "2,650,000".
2. Except as set forth herein, the Plan is hereby ratified and
confirmed in all respects.
IN WITNESS WHEREOF, the undersigned have executed this
Amendment effective as of August 4, 1999.
BE AEROSPACE, INC.
By: /s/ Jeffrey P. Holtzman
-------------------------------------
Name: Jeffrey P. Holtzman
Date: August 4, 1999
[Letterhead of Shearman and Sterling]
October 15, 1999
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 1,400,000 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 and (ii) 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 October 15, 1999
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 and Sterling
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
BE Aerospace, Inc. on Form S-8, relating to the Amended and Restated 1989 Stock
Option Plan and the 1996 Stock Option Plan, of our report dated April 16, 1999,
appearing in the Annual Report on Form 10-K of BE Aerospace, Inc. for the year
ended February 27, 1999.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Costa Mesa, California
October 11, 1999
