As filed with the Securities and Exchange Commission on November 13, 2000
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BE AEROSPACE, INC.
(Exact name of issuer as specified in its charter)
Delaware 06-1209796
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1400 Corporate Center Way
Wellington, Florida 33414
(Address of principal executive offices, including zip code)
BE AEROSPACE, INC. NON-EMPLOYEE DIRECTORS
DEFERRED STOCK 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>
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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
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<S> <C> <C> <C> <C>
Common Stock, par value (1) (2)
$.01 per share 200,000 $15.81 $3,162,000 $835
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</TABLE>
(1) This registration statement on Form S-8 (this "Registration Statement")
shall also cover any additional shares of Common Stock which become
issuable under the plan being registered pursuant to this Registration
Statement by reason of any stock dividend, stock split, recapitalization or
any other similar transaction effected without the receipt of consideration
which results in an increase in the number of the Registrant's outstanding
shares of common stock, par value $0.01 per share (the "Common Stock").
(2) Estimated in accordance with Rules 457(c) and 457(h) under the Securities
Act of 1933, as amended (the "Securities Act") solely for the purpose of
determining the registration fee. Estimate based on the average of the high
and low prices of the Common Stock, par value $0.01 per share, reported on
the Nasdaq National Market on November 8, 2000.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
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* 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 and the "Note" to Part I of Form S-8.
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<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.
(a) the Registrant's Annual Report on Form 10-K for the fiscal year
ended February 26, 2000;
(b) the Registrant's Quarterly Report on Form 10-Q for the quarters
ended May 27, 2000 and August 26, 2000; and
(c) the description of the Registrant's 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 March 7,
1990 pursuant to Section 12 of the Exchange Act of 1934, as amended (the
"Exchange Act"), and the description of the attached shareholder rights
described in the Registrant's Registration Statement 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 and 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. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
incorporated by reference herein modified 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 this Registration Statement.
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 Registrant 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.
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<PAGE>
(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.
(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.
See attached Exhibit list.
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 this 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;
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in this 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.
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(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.
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<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 13th day of
November, 2000.
BE Aerospace, Inc.
By: /s/ Robert J. Khoury
------------------------------
Name: Robert J. Khoury
Title: Chief Executive Officer
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<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 13th day of November, 2000.
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
Robert J. Khoury officer)
/s/ Thomas P. McCaffrey Corporate Senior Vice President of
--------------------------------- Administration and Chief Financial
Thomas P. McCaffrey Officer (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/ Hanjorg Wyss Director
---------------------------------
Hansjorg Wyss
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<PAGE>
EXHIBIT INDEX
Number Title of Exhibit
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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. 33-54146), 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 BE Aerospace, Inc. Non-Employee Directors Deferred Stock 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).
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* Filed herewith.
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