BE AEROSPACE, INC.
(a Delaware corporation)
16,000,000 Shares
Common Stock
(par value $0.01)
UNDERWRITING AGREEMENT
September 30, 2004
Credit Suisse First Boston LLC
UBS Securities LLC
▇▇▇▇▇▇▇▇▇ Quarterdeck, a division of ▇▇▇▇▇▇▇▇▇ & Company, Inc.
▇▇▇▇▇▇▇▇ Inc.
c/o Credit Suisse First Boston LLC
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
BE Aerospace, Inc., a Delaware corporation (the "Company"), proposes to
issue and sell to each of Credit Suisse First Boston LLC ("CSFB"), UBS
Securities LLC ("UBS"), ▇▇▇▇▇▇▇▇▇ Quarterdeck, a division of ▇▇▇▇▇▇▇▇▇ &
Company, Inc. and ▇▇▇▇▇▇▇▇ Inc. (each an "Underwriter" and together the
"Underwriters"), 16,000,000 shares of its common stock, par value $0.01 per
share (the "Common Stock") and, at the option of the Underwriters, an aggregate
of not more than 2,400,000 additional shares of Common Stock (the "Optional
Securities"). The aforesaid 16,000,000 shares of Common Stock (the "Initial
Securities") and the Optional Securities are herein collectively called the
"Securities". Capitalized terms used herein and not otherwise defined herein
have the respective meanings specified in the Prospectus.
Section 1. Representations and Warranties. (a) The Company represents and
warrants to and agrees with the Underwriters as of the date hereof and as of the
Closing Time and as of each Date of Delivery, if any, as follows:
(i) A registration statement on Form S-3 (No. 333-112493) related to
the Securities, as amended by Amendment No. 1 thereto, has been filed with
the Securities and Exchange Commission (the "Commission"), under the
Securities Act of 1933, as amended (the "1933 Act"), which registration
statement, as amended, has been declared effective by the Commission on
February 13, 2004 and true and complete copies of which have heretofore
been delivered to you. Such registration statement, in the form in which it
was declared effective, as amended through the date hereof, including all
documents incorporated or deemed to be incorporated by reference therein
through the
date hereof, is hereinafter referred to as the "Registration Statement."
Any registration statement filed pursuant to Rule 462(b) of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act
Regulations") is herein referred to as the "Rule 462(b) Registration
Statement," and after such filing the term "Registration Statement" shall
include the Rule 462(b) Registration Statement. The Company has prepared
and filed with the Commission a preliminary prospectus supplement relating
to the Securities. Such preliminary prospectus, together with the
prospectus included in the Registration Statement at the time it was
declared effective and all documents incorporated or deemed incorporated
therein by reference, is herein called the "preliminary prospectus."
Promptly after execution and delivery of this underwriting agreement (the
"Agreement"), the Company will prepare and file a final prospectus
supplement relating to the Securities in accordance with the provisions of
Rule 424(b) under the 1933 Act Regulations. Such final prospectus
supplement in the form first furnished to the Underwriters to confirm sales
of the Securities, together with the prospectus included in the
Registration Statement at the time it was declared effective and all
documents incorporated therein by reference, is herein called the
"Prospectus." For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include
the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
(ii) At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective, at the date hereof and at the Closing Time (and, if any
Optional Securities are purchased, at the Date of Delivery), the
Registration Statement, any Rule 462(b) Registration Statement and any
amendments and supplements thereto complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations
and did not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading. Each of the Registration
Statement, any Rule 462(b) Registration Statement and any post-effective
amendment thereto has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement, any Rule 462(b)
Registration Statement or any post-effective amendment thereto has been
issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with. Neither the
Prospectus nor any amendments or supplements thereto, at the time the
Prospectus or any such amendment or supplement was issued and at the
Closing Time (and, if any Optional Securities are purchased, at the Date of
Delivery), included or will include an untrue statement of a material fact
or omitted or will omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; except that this representation and warranty
does not apply to statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by the
Underwriters through CSFB expressly for use in the preliminary prospectus,
the Prospectus or any amendment or supplement thereto.
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(iii) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, at the time
they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1934 Act and
the rules and regulations of the Commission thereunder (the "1934 Act
Regulations"), and, when read together and with the other information in
the Prospectus, at the respective times the Registration Statement and any
amendments thereto became effective, at the date hereof, at the time the
Prospectus was issued and at the Closing Time (and, if any Optional
Securities are purchased, at the Date of Delivery), did not, do not and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
(iv) Deloitte & Touche LLP, which is reporting upon the audited
financial statements and related notes included or incorporated in the
Registration Statement and Prospectus, is an independent public accountant
with respect to the Company in accordance with the provisions of the 1933
Act and the 1933 Act Regulations.
(v) The financial statements of the Company included in or
incorporated by reference in the Registration Statement and the Prospectus
present fairly (a) the financial position of the Company and its
subsidiaries on a consolidated basis as of the dates indicated and (b) the
results of operations and cash flows of the Company and its subsidiaries on
a consolidated basis for the periods specified, subject, in the case of
unaudited financial statements, to normal year-end adjustments which shall
not be materially adverse to the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise. Such financial statements have
been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved. The
financial statement schedules, if any, included or incorporated by
reference in the Registration Statement and the Prospectus present fairly
the information required to be stated therein. The selected financial data
included in the Registration Statement and Prospectus present fairly the
information shown therein and have been compiled on a basis consistent with
that of the audited consolidated financial statements included or
incorporated by reference in the Registration Statement and the Prospectus.
The assumptions used in preparing the pro forma financial information
included in the Registration Statement and the Prospectus provide a
reasonable basis for presenting the significant effects directly
attributable to the transactions or events described therein. All financial
statements and pro forma financial statements required by Regulation S-X to
be included or incorporated by reference in the Registration Statement have
been included or incorporated by reference.
(vi) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware with corporate
power and authority under such laws to own, lease and operate its
properties and conduct its business as described in the Prospectus; and the
Company is duly qualified to transact business as a foreign corporation and
is in good standing in each other jurisdiction in which it owns or leases
property of a nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to so
qualify or be
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in good standing would not have a material adverse effect on the Company
and its subsidiaries, considered as one enterprise.
(vii) The Company's only subsidiaries (either direct or indirect) are
as listed in Exhibit A attached hereto (each individually, a "Subsidiary"
and collectively, the "Subsidiaries"). The Company has no significant
subsidiaries (as defined in Rule 1.02 of the Commission's Regulation S-X)
other than BE Aerospace Holdings (UK) Limited ("BEAH(UK)") and BE Aerospace
Netherlands B.V. ("BEAN"). BE Aerospace Services, LLC, ▇▇▇▇▇▇▇ Acquisition,
Inc., ▇▇▇▇▇▇ Jet Interiors, LLC, ▇▇▇▇▇▇ Aerospace, LLC, ▇▇▇▇▇▇▇ Precision,
LLC, BEA Aerospace (U.S.A.), LLC, Flight Structures, Inc., DMGI, LLC, T.L.
Windust Machine, LLC, Acurex, LLC, Modern Metals, LLC, ▇▇▇▇▇▇▇▇ Industries,
Inc., M&M Aerospace Hardware, Inc., B/E Aerospace Development Corporation,
and B/E Aerospace Machined Products, Inc. are inactive subsidiaries with no
significant assets and are not engaged in any active trade or business.
BEAH(UK) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization with
corporate power and authority under such laws to own, lease and operate its
properties and conduct its business; and BEAH(UK) is duly qualified to
transact business as a foreign corporation and is in good standing in each
other jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification necessary,
except to the extent that the failure to so qualify or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries, considered as one enterprise. All of the outstanding shares
of capital stock of each Subsidiary have been duly authorized and validly
issued or created and are fully paid and non-assessable and (other than in
the case of BE Aerospace (France) S.A.R.L., of which five shares are owned
by ▇▇▇▇ ▇▇▇▇▇▇▇▇, a French national and director of BEA France, and five
shares are owned by The K.A.D. Companies, Inc., an investment, venture
capital and consulting firm owned by ▇▇▇▇ ▇. ▇▇▇▇▇▇, the Chairman of the
Company, and Advanced Thermal Sciences Corporation, of which approximately
6% of the outstanding shares are owned by officers and employees of the
Company) are owned by the Company, directly or through one or more
Subsidiaries, free and clear of any pledge, lien, security interest,
charge, claim, equity or encumbrance of any kind, except that (1) 65% of
the issued and outstanding Ordinary Shares of BEAH(UK) are pledged to the
Agent under the Bank Credit Facility, (2) 65% of the issued and outstanding
capital stock of BEA Aerospace Netherlands B.V. is pledged to the Agent
under the Bank Credit Facility, and (3) the outstanding capital stock of
each of BEA Aerospace USA, LLC, Acurex LLC, and BE Aerospace Services, LLC
is pledged to the Agent under the Bank Credit Facility. The Company does
not, directly or indirectly, own any equity or long-term debt securities of
any corporation, firm, partnership, joint venture or other entity, other
than the stock of its Subsidiaries and a note from BEA Aerospace
Netherlands B.V. in the principal amount of approximately $93.3 million.
(viii) The Company had, at the date indicated in the Prospectus, a
duly authorized, issued and outstanding capitalization as set forth in the
Prospectus under the caption "Capitalization".
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(ix) The Securities and all other outstanding shares of capital stock
of the Company have been duly authorized and validly issued and are fully
paid and non-assessable; and none of the outstanding shares of capital
stock of the Company was issued in violation of the preemptive rights of
any stockholder of the Company. There are no outstanding options to
purchase, or any rights or warrants to subscribe for, or any securities or
obligations convertible into, or any contracts or commitments to issue or
sell, any shares of Common Stock of the Company, any shares of capital
stock of any subsidiary, or any such warrants, convertible securities or
obligations, except as set forth in the Prospectus, as described in the
Company's most recent proxy statement incorporated by reference in the
Prospectus, or issuances pursuant to plans referred to in the Prospectus or
the Company's most recent proxy statement incorporated by reference in the
Prospectus.
(x) The Common Stock of the Company, including the Securities,
conforms in all material respects to the description thereof contained in
the Prospectus under the caption Description of Common Stock.
(xi) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that would
give rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment in connection with
the transaction contemplated hereby.
(xii) The Common Stock is listed on the Nasdaq National Market and we
have filed notice with the Nasdaq National Market to list the Securities.
(xiii) This Agreement has been duly authorized, executed and delivered
by the Company.
(xiv) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein or contemplated thereby, there has not been (A) any material
adverse change in the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise, whether or not arising in the ordinary course
of business, (B) any transaction entered into by the Company or any
subsidiary, other than in the ordinary course of business, that is material
to the Company and its subsidiaries, considered as one enterprise, or (C)
any dividend or distribution of any kind declared, paid or made by the
Company on its capital stock.
(xv) Neither the Company nor any Subsidiary is in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement,
note, lease or other agreement or instrument to which it is a party or by
which it may be bound or to which any of its properties may be subject,
except for such defaults that would not have a material adverse effect on
the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as one
enterprise. The execution and delivery by the Company of this Agreement,
the issuance, sale and delivery of the Securities by the Company, the
consummation by the Company of the
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transactions contemplated in this Agreement and the Prospectus, including,
but not limited to, the use of proceeds for the redemption of the
outstanding 9 1/2% Senior Subordinated Notes due 2008, and compliance by
the Company with the terms of this Agreement have been duly authorized by
all necessary corporate action on the part of the Company and do not and
will not result in any violation of the charter or by-laws of the Company
or any Subsidiary, and do not and will not conflict with, or result in a
breach of any of the terms or provisions of, or constitute a default under,
or result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any Subsidiary under, (A) any
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company or any Subsidiary is a party
or by which they may be bound or to which any of their respective
properties may be subject except as such would not have a material adverse
effect on the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise or (B) any existing applicable law, rule,
regulation, judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any Subsidiary or any of their respective properties.
(xvi) No authorization, approval, consent or license of any
government, governmental instrumentality or court, domestic or foreign
(other than under the 1933 Act and the 1933 Act Regulations with respect to
this Agreement and the transactions contemplated thereunder and the
securities or "blue sky" laws of the various states) is required for the
valid authorization, issuance, sale and delivery of the Securities, for the
execution, delivery or performance by the Company of this Agreement or for
the consummation by the Company of the transactions contemplated in this
Agreement and the Prospectus, except such of the foregoing as will be
obtained prior to the Closing Time.
(xvii) Except as disclosed in the Prospectus, there is no action, suit
or proceeding before or by any government, governmental instrumentality or
court, domestic or foreign, now pending or, to the knowledge of the
Company, threatened against or affecting the Company or any Subsidiary or
any of their respective officers, in their capacity as such, that could
reasonably be expected to result in any material adverse change in the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its subsidiaries, considered as one
enterprise, or that could reasonably be expected to materially and
adversely affect the properties or assets of the Company and its
subsidiaries, considered as one enterprise, or that could adversely affect
the consummation of the transactions contemplated in this Agreement or the
Prospectus; the aggregate of all pending legal or governmental proceedings
that are not described in the Prospectus to which the Company or any
Subsidiary is a party or which affect any of their respective properties,
including ordinary routine litigation incidental to the business of the
Company or any Subsidiary, could not reasonably be expected to have a
material adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise.
(xviii) The Company and the Subsidiaries each has good and marketable
title to all properties and assets described in the Prospectus as owned by
it, free and clear of all
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liens, charges, encumbrances or restrictions, except such as (A) are
described in the Prospectus or (B) are neither material in amount nor
materially significant in relation to the business of the Company and its
subsidiaries, considered as one enterprise; all of the leases and subleases
material to the business of the Company and its subsidiaries, considered as
one enterprise, and under which the Company or any Subsidiary holds
properties described in the Prospectus, are in full force and effect, and
neither the Company nor any Subsidiary has received any notice of any
material claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any Subsidiary under any of the leases or
subleases mentioned above, or affecting or questioning the rights of such
corporation to the continued possession of the leased or subleased premises
under any such lease or sublease.
(xix) The Company and the Subsidiaries each owns, possesses or has
obtained all material governmental licenses, permits, certificates,
consents, orders, approvals and other authorizations, including, without
limitation, any licenses, permits, certificates, consents, orders,
approvals and other authorizations required to be obtained from the Federal
Aviation Administration, necessary to own or lease, as the case may be, and
to operate its properties and to carry on its business as presently
conducted, and neither the Company nor any Subsidiary has received any
notice of proceedings relating to revocation or modification of any such
licenses, permits, certificates, consents, orders, approvals or
authorizations except as such would not have a material adverse effect on
the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as one
enterprise.
(xx) The Company and the Subsidiaries each owns or possesses adequate
patents, patent licenses, trademarks, service marks and trade names
necessary to carry on its business as presently conducted, and neither the
Company nor any Subsidiary has received any notice of infringement of or
conflict with asserted rights of others with respect to any patents, patent
licenses, trademarks, service marks or trade names that in the aggregate,
if the subject of an unfavorable decision, ruling or finding, could
materially adversely affect the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise.
(xxi) To the best knowledge of the Company, no labor problem exists
with its employees or with the employees of any Subsidiary or is imminent
that could materially adversely affect the Company and its subsidiaries,
considered as one enterprise, and the Company is not aware of any existing
or imminent labor disturbance by the employees of any of its or any
Subsidiary's principal suppliers, contractors or customers that could be
expected to materially adversely affect the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company
and its subsidiaries, considered as one enterprise.
(xxii) Neither the Company nor any Subsidiary has taken or will take,
directly or indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the price
of the Securities.
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(xxiii) All United States federal income tax returns of the Company
and the Subsidiaries required by law to be filed have been filed and all
United States federal income taxes which are due and payable have been
paid, except assessments against which appeals have been or will be
promptly taken and as to which adequate reserves have been provided. The
Company and the Subsidiaries each has filed all other tax returns that are
required to have been filed by it pursuant to applicable foreign, state,
local or other law except insofar as the failure to file such returns would
not have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company
and its subsidiaries, considered as one enterprise, and has paid all taxes
due pursuant to such returns or pursuant to any assessment received by the
Company and the Subsidiaries, except for such taxes, if any, as are being
contested in good faith and as to which adequate reserves have been
provided. The charges, accruals and reserves on the books of the Company in
respect of any income and corporation tax liability for any years not
finally determined are adequate to meet any assessments or re-assessments
for additional income tax for any years not finally determined, except to
the extent of any inadequacy that would not have a material adverse effect
on the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its Subsidiaries, considered as one
enterprise.
(xxiv) The Company and the Subsidiaries each maintains a system of
internal accounting controls sufficient to provide reasonable assurances
that (A) transactions are executed in accordance with management's general
or specific authorization; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets;
(C) access to assets is permitted only in accordance with management's
general or specific authorization; (D) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences; and (E) any
significant deficiencies or material weaknesses in the design or operation
of internal accounting controls which could adversely affect the Company's
ability to record, process, summarize and report financial information
data, and any fraud whether or not material that involves management or
other employees who have a significant role in the Company's internal
accounting controls, are adequately and promptly disclosed to the Company's
independent auditors and the audit committee of the Company's board of
directors. The Company and the Subsidiaries have not made, and, to the
knowledge of the Company, no employee or agent of the Company or any
Subsidiary has made, any payment of the Company's funds or any Subsidiary's
funds or received or retained any funds in violation of any applicable law,
regulation or rule or that would be required to be disclosed in the
Prospectus.
(xxv) Except as disclosed in the Prospectus, there are no holders of
securities of the Company who have the right to require the Company to
register securities held by them under the 1933 Act on any registration
statement that will be used to register the Securities or the Exchange
Securities.
(xxvi) The Company is not an "investment company," and will not be as
a result of the sale of the Securities pursuant to this Agreement, an
"investment company"
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within the meaning of the Investment Company Act of 1940, as amended (the
"1940 Act").
(xxvii) Except as disclosed in the Prospectus and except as would not
individually or in the aggregate have a material adverse effect on the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its subsidiaries, considered as one
enterprise, (A) the Company and the Subsidiaries are each in compliance
with all applicable Environmental Laws, (B) the Company and the
Subsidiaries have all permits, authorizations and approvals required under
any applicable Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or threatened Environmental Claims
against the Company or any of the Subsidiaries, and (D) there are no
circumstances with respect to any property or operations of the Company or
any Subsidiary that could reasonably be anticipated to form the basis of an
Environmental Claim against the Company or any Subsidiary.
For purposes of this Agreement, the following terms shall have the
following meanings: "Environmental Law" means any United States (or other
applicable jurisdiction's) federal, state, local or municipal statute, law,
rule, regulation, ordinance, code, policy or rule of common law and any
judicial or administrative interpretation thereof including any judicial or
administrative order, consent decree or judgment, relating to the
environment, health, safety or any chemical, material or substance,
exposure to which is prohibited, limited or regulated by any governmental
authority. Environmental Claims means any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigations or proceedings
relating in any way to any Environmental Law.
(xxviii) The Company and its consolidated subsidiaries employ
disclosure controls and procedures that are designed to ensure that
information required to be disclosed by the Company and its subsidiary in
the reports that it files or submits under the 1934 Act is recorded,
processed, summarized and reported, within the time periods specified in
the Commission's rules and forms, and is accumulated and communicated to
the Company's management and its subsidiaries management, including its
principal executive officer or officers and principal financial officer or
officers, as appropriate to allow timely decisions regarding disclosure.
(b) Any certificate signed by any officer of the Company or any Subsidiary
and delivered to the Underwriters or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company to the Underwriters as to
the matters covered thereby.
Section 2. Purchase, Sale and Delivery of the Securities; Closing. (a) On
the basis of the representations and warranties herein contained, and subject to
the terms and conditions herein set forth, the Company agrees to sell to each of
you, and each of you severally and not jointly agrees to purchase from the
Company, at a purchase price of $8.55 per share, the number of Initial
Securities set forth opposite your name on Schedule A.
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(b) In addition, upon written notice from CSFB to the Company from time to
time not more than 30 days subsequent to the date of the Prospectus, the
Underwriters may purchase all or less than all of the Optional Securities at the
purchase price per Security to be paid for the Initial Securities. The Company
agrees to sell to the Underwriters the number of shares of Optional Securities
specified in such notice and the Underwriters agree, severally and not jointly,
to purchase such Optional Securities. Such Optional Securities shall be
purchased from the Company for the account of each Underwriter in the same
proportion as the number of Initial Securities set forth in Schedule A opposite
the name of such Underwriter bears to the total number of Initial Securities,
subject in each case to such adjustments as the Underwriters in their discretion
shall make to eliminate any sales or purchases of fractional shares and may be
purchased by the Underwriters only for the purpose of covering over-allotments
made in connection with the sale of the Initial Securities. No Optional
Securities shall be sold or delivered unless the Initial Securities previously
have been, or simultaneously are, sold and delivered. The right to purchase the
Optional Securities or any portion thereof may to the extent not previously
exercised be surrendered and terminated at any time upon notice by CSFB to the
Company. Each time for the delivery of and payment for the Optional Securities,
being herein referred to as a "Date of Delivery", which may be the Closing Time,
shall be determined by CSFB but shall be not later than five full business days
after written notice of election to purchase Optional Securities is given.
(c) Payment of the purchase price for, and delivery of certificates for,
the Initial Securities shall be made at the offices of Fried, Frank, Harris,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such
other place as shall be agreed upon by the Underwriters and the Company, at 9:00
A.M., New York time, on October 6, 2004 or at such other time not more than ten
full business days thereafter as the Underwriters and the Company shall
determine (such date and time of payment and delivery being herein called the
"Closing Time"). Certificates for the Initial Securities and the Optional
Securities, if any, shall be in such denominations and registered in such names
as CSFB, representing the Underwriters, may request in writing at least two
business days before the Closing Time or the relevant Date of Delivery, as the
case may be. The certificates for the Initial Securities and the Optional
Securities, if any, will be made available in New York City for examination and
packaging by you not later than 10:00 A.M. on the last business day prior to the
Closing Time. In addition, in the event that any or all of the Optional
Securities are purchased by the Underwriters, payment of the purchase price for,
and delivery of certificates for, such Optional Securities shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by the
Underwriters and the Company, on each Date of Delivery as specified in the
notice from CSFB, representing the Underwriters, to the Company.
(d) At the Closing Time, payment shall be made to an account, or accounts,
designated by the Company in the aggregate amount of $136,800,000 in immediately
available funds payable to the order of the Company against delivery to CSFB,
representing the Underwriters, for the respective accounts of the Underwriters
of certificates for the Securities to be purchased by them. It is understood
that each Underwriter has authorized CSFB, for its account, to accept delivery
of, receipt for, and make payment of the purchase price for, the Initial
Securities and the Optional Securities, if any, which it has agreed to purchase.
Each of CSFB and UBS, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Initial Securities or the Optional Securities, if any, to be
purchased by any Underwriter whose funds have not been received by
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the Closing Time or the relevant Date of Delivery, as the case may be, but such
payment shall not relieve such Underwriter from its obligations hereunder.
Section 3. Certain Covenants of the Company. The Company covenants with you
as follows:
(a) The Company will promptly notify CSFB, representing the Underwriters,
(i) of the effectiveness of any post-effective amendment to the Registration
Statement, (ii) of the mailing or the delivery to the Commission for filing of
the Prospectus or any amendment to the Registration Statement or amendment or
supplement to the Prospectus or any document to be filed pursuant to the 1934
Act during any period when the Prospectus is required to be delivered under the
1933 Act, (iii) of the receipt of any comments or inquiries from the Commission
relating to the Registration Statement or Prospectus, (iv) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, (v) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceeding for that purpose, and
(vi) of the issuance by any state securities commission or other regulatory
authority of any order suspending the qualification or the exemption from
qualification of the Securities under state securities or Blue Sky laws or the
initiation of any proceedings for that purpose. The Company will use its best
effort to prevent the issuance by the Commission of any stop order and, if any
such stop order is issued, to obtain the lifting thereof at the earliest
possible moment. The Company will provide the Underwriters with copies of the
form of Prospectus, in such number as the Underwriters may reasonably request,
and file or transmit for filing with the Commission such Prospectus in
accordance with Rule 424(b) of the 1933 Act Regulations by the close of business
in New York on the second business day immediately succeeding the date hereof.
(b) At any time when a Prospectus is required to be delivered under the
1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations in
connection with sales of the Securities, the Company will give CSFB,
representing the Underwriters, notice of its intention to file or prepare any
amendment to the Registration Statement (including any filing under Rule 462(b))
or any amendment, supplement or revision to either the prospectus included in
the Registration Statement at the time it became effective, to the Prospectus,
whether or not such revised prospectus is required to be filed pursuant to Rule
424(b) of the 1933 Act Regulations), will furnish the Underwriters with copies
of any such amendment or supplement a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file any such amendment
or supplement or use any such prospectus to which the Underwriters or counsel
for the Underwriters shall reasonably object, unless in the judgment of the
Company and its counsel, and after notification to you, such amendment or
supplement is required by law.
(c) The Company has furnished or will deliver to you, without charge, a
signed copy of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith and documents incorporated
or deemed to be incorporated by reference therein) and as many conformed copies
of the Registration Statement as originally filed and of each amendment thereto
(including documents incorporated or deemed to be incorporated by reference
therein but without exhibits filed therewith), as you may reasonably request.
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(d) The Company will furnish to you, from time to time during the period
when the Prospectus is required to be delivered under the 1933 Act or the 1934
Act, such number of copies of the Prospectus (as amended or supplemented) as you
may reasonably request.
(e) The Company will comply with the 1933 Act and the 1933 Act Regulations
and the 1934 Act and the 1934 Act Regulations so as to permit the completion of
the distribution of the Securities as contemplated in this Agreement and in the
Prospectus. If, at any time when a Prospectus is required to be delivered under
the 1933 Act in connection with sales of the Securities, any event shall occur
or condition exist as a result of which it is necessary, in the opinion of your
counsel or counsel for the Company, to amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing at the time it is delivered
to a purchaser, not misleading or if, in the opinion of your counsel or counsel
for the Company, it is necessary to amend or supplement the Prospectus to comply
with applicable law, the Company, at its own expense, will promptly prepare such
amendment or supplement as may be necessary so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances existing at the time it is delivered to a purchaser, be misleading
or so that such Prospectus as so amended or supplemented will comply with
applicable law, as the case may be, and furnish you such number of copies as you
may reasonably request. The Company will not file any amendment or supplement
without first providing the Underwriters with such amendment or supplement and
having obtained the Underwriters' consent to the filing, which consent shall not
be unreasonably withheld unless in the judgment of the Company and its counsel,
and after notification to you, such amendment or supplement is required by law.
Neither the Underwriters consent to, nor the delivery of such amendment or
supplement, shall constitute a waiver of any of the conditions in Section 6
hereof.
(f) The Company will endeavor, in cooperation with you, to qualify the
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions as you may designate and to maintain such
qualifications in effect for a period of not less than a year from the date of
the Prospectus; provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is not
so qualified or to subject itself to taxation in respect of doing business in
any jurisdiction in which it is not otherwise so subject. The Company will file
such statements and reports as may be required by the laws of each jurisdiction
in which the Securities have been qualified as above provided. The Company will
also supply you with such information as is necessary for the determination of
the legality of the Securities for investment under the laws of such
jurisdictions as you may request.
(g) The Company will make generally available to its security holders no
later than 90 days after the close of the period covered thereby, an earnings
statement (in form complying with the provisions of Rule 158 of the 1933 Act
Regulations) covering the twelve month period beginning not later than the first
day of the Company's fiscal quarter next following the "effective date" (as
defined in said Rule 158) of the Registration Statement.
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(h) The Company will use its best efforts in cooperation with you to permit
the Securities offered and sold in transactions by you to be eligible for
clearance and settlement through The Depository Trust Company.
(i) The Company will apply the net proceeds received by it from the sale of
the Securities in the manner specified in the Prospectus under the heading "Use
of Proceeds."
(j) Prior to the Closing Time, the Company will not issue any press release
or other communications directly or indirectly or hold any press conference with
respect to the Company, the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company, without your prior
consent, which shall not be unreasonably withheld, unless in the judgment of the
Company and its counsel, and after notification to you, such press release or
communication is required by law.
(k) The Company, during the period when the Prospectus is required to be
delivered under the 1933 Act, will file all documents required to be filed with
the Commission pursuant to the 1934 Act within the time periods required by the
1934 Act and the 1934 Act Regulations.
(l) Except as contemplated by this Agreement with respect to the sale of
the Securities, for a period of 90 days from the date of the Prospectus, the
Company will not, without the prior written consent of CSFB and UBS, directly or
indirectly, offer, pledge, sell, grant any option, right or warrant for the sale
of or otherwise dispose of any share of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or file any
registration statement under the 1933 Act with respect to any of the foregoing
or Common Stock of the Company.
Section 4. Certain Covenants of the Underwriters. Each of the Underwriters
covenants severally and not jointly with the Company as follows:
(a) It has not offered or sold, and, prior to the expiration of the period
of six months from the closing date for the issue of the Securities, will not
offer or sell any Securities to persons in the United Kingdom, except to those
persons whose ordinary activities involve them in acquiring, holding, managing
or disposing of investments (as principal or agent) for the purpose of their
businesses or otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995.
(b) It has complied and will comply with all applicable provisions of the
Financial Services ▇▇▇ ▇▇▇▇ and all applicable provisions of the Financial
Services and Markets Act 2000 (the "FSMA") with respect to anything done by it
in relation to the Securities in, from or otherwise involving the United
Kingdom.
(c) It has only communicated or caused to be communicated and will only
communicate or cause to be communicated any invitation or inducement to engage
in investment activity (within the meaning of the FSMA) received by it in
connection with the issue or sale of the Securities in circumstances in which
Section 21(1) of the FSMA does not apply to us.
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(d) It is aware of the fact that no German selling prospectus
(Verkaufsprospekt) has been or will be published in respect of the sale of the
Securities and that it will comply with the Securities Selling Prospectus Act of
the Federal Republic of Germany (Wertpapier-Verkaufsprospektgesetz). In
particular, each Underwriter has undertaken not to engage in a public offering
in the Federal Republic of Germany with respect to any Securities otherwise than
in accordance with the Securities Selling Prospectus Act and any other act
replacing or supplementing the Securities Selling Prospectus Act and all other
applicable laws and regulations.
(e) The Securities are being issued and sold outside the Republic of France
and that, in connection with their initial distribution, it has not offered or
sold and will not offer or sell, directly or indirectly, any Securities to the
public in the Republic of France, and that it has not distributed and will not
distribute or cause to be distributed to the public in the Republic of France
this prospectus supplement, the accompanying prospectus or any other offering
material relating to the Securities , and that such offers, sales and
distributions have been and will be made in the Republic of France only to (a)
qualified investors (investisseurs qualifies) and/or (b) a restricted group of
investors (cercle restreint d'investisseurs), all as defined in Article L.411-2
of the Monetary and Financial Code and decret no. 98-880 dated 1st October,
1998.
(f) The Securities will not be offered, sold, transferred or delivered in
or from the Netherlands as part of their initial distribution or at any time
thereafter, directly or indirectly, other than to banks, pension funds,
insurance companies, securities firms, investment institutions, central
governments, large international and supranational institutions and other
comparable entities, including, among others, treasuries and finance companies
of large enterprises, which trade or invest in securities in the course of a
profession or trade. Individuals or legal entities who or which do not trade or
invest in securities in the course of their profession or trade may not
participate in the offering of the Securities, and the prospectus supplement and
Prospectus or any other offering material relating to the Securities may not be
considered an offer or the prospect of an offer to sell or exchange the
Securities.
(g) The distribution of the Securities in Canada is being made only on a
private placement basis exempt from the requirement that the Company prepare and
file a prospectus with the securities regulatory authorities in each province
where trades of the common stock are made. Any resale of the common stock in
Canada will be made under applicable securities laws which will vary depending
on the relevant jurisdiction, and which may require resales to be made under
available statutory exemptions or under a discretionary exemption granted by the
applicable Canadian securities regulatory authority.
(h) In the event that any Securities are offered and sold in Europe, the
Underwriters will first sell the Securities in the United Kingdom.
Section 5. Payment of Expenses. Whether or not any sale of the Securities
is consummated, the Company will pay and bear all costs and expenses incident to
the performance of its obligations under this Agreement, including (a) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (b) the preparation, reproduction and distribution of the Securities
and this Agreement, (c) the delivery of the certificates for the Securities to
the Underwriters, (d) the
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fees and disbursements of the Company's counsel and accountants, (e) the
qualification of the Securities under the applicable securities laws in
accordance with Section 3(f) and any filing for review of the offering with
NASD, including filing fees and fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
any "blue sky" or legal investment memoranda, (f) the delivery- to the
Underwriters of copies of the Registration Statement as originally filed and the
printing and delivery of each amendment thereto, of each preliminary prospectus
and of the Prospectus and any amendments or supplements thereto, (g) the
preparation, printing and delivery to the Underwriters of copies of the Blue Sky
Survey and any supplement thereto, (h) the fees and expenses of any transfer
agent or registrar for the Securities, (i) the fees and expenses incurred in
connection with the listing of the Securities on Nasdaq and (j) one-half of the
plane or private jet expenses of the Underwriters and the Company's officers and
employees in connection with attending or hosting meetings with prospective
purchasers of the offered Securities.
If this Agreement is terminated by the Underwriters in accordance with the
provisions of Section 6, the Company shall reimburse the Underwriters for all of
their out-of-pocket expenses, including the fees and disbursements of counsel
for the Underwriters.
Section 6. Conditions of Underwriters' Obligations. The obligations of each
Underwriter to purchase and pay for the Securities that it has severally agreed
to purchase hereunder are subject to the accuracy of the representations and
warranties of the Company contained herein and in certificates of any officer of
the Company and any Subsidiary delivered pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder, and to the
following further conditions:
(a) The Registration Statement, including any Rule 462(b) Registration
Statement, shall remain effective and at Closing Time no stop order suspending
the effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission, and
any request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing the Rule 430A Information shall have been
filed with the Commission in accordance with Rule 424(b) (or a post-effective
amendment providing such information shall have been filed and declared
effective in accordance with the requirements of Rule 430A).
(b) At the Closing Time, each of you shall have received a signed opinion
of each of Shearman & Sterling LLP, counsel for the Company, and ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, General Counsel of the Company, in each case dated as of the Closing
Time, in substantially the form attached hereto as Exhibit B-1. Such opinions
shall be to such further effect with respect to other legal matters relating to
this Agreement and the sale of the Securities pursuant to this Agreement as
counsel for the Underwriters may reasonably request. In giving such opinion,
such counsel may rely, as to all matters governed by the laws of jurisdictions
other than the law of the State of New York, the federal law of the United
States and the General Corporation Law of the State of Delaware, upon opinions
of other counsel, who shall be counsel satisfactory to counsel for the
Underwriters, in which case the opinion shall state that they believe you are
entitled to so rely. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and the
-15-
Subsidiaries and certificates of public officials; provided that such
certificates have been delivered to the Underwriters.
(c) At the Closing Time, each of you shall have received a signed opinion
of Lovells, counsel to BEAH(UK), dated as of Closing Time, in substantially the
form attached hereto as Exhibit B-2. Such opinion shall be to such further
effect with respect to other legal matters relating to this Agreement and the
sale of the Securities pursuant to this Agreement as counsel for the
Underwriters may reasonably request.
(d) At the Closing Time, each of you shall have received the favorable
opinion of Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the
Underwriters, dated as of the Closing Time, to the effect that the opinions
delivered pursuant to Sections 6(a) and 6(b) appear on their face to be
appropriately responsive to the requirements of this Agreement except,
specifying the same, to the extent waived by you, and with respect to the
incorporation and legal existence of the Company, the Securities, this
Agreement, the Prospectus and such other related matters as you may require. In
giving such opinion such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of New York, the federal
law of the United States and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to you. Such counsel may
also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the
Company and the Subsidiaries and certificates of public officials; provided that
such certificates have been delivered to the Underwriters.
(e) At the Closing Time, (i) the Registration Statement, as it may then be
amended or supplemented, shall not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading and the Prospectus, and any
amendments and supplements thereto, shall not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, (ii) there shall not have been, since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein or contemplated thereby, any
material adverse change in the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise, whether or not arising in the ordinary course of
business, (iii) except as disclosed in the Prospectus, no action, suit or
proceeding before or by any government, governmental instrumentality or court,
domestic or foreign, shall be pending or, to the knowledge of the Company,
threatened against or affecting the Company or any Subsidiary that could
reasonably be expected to result in any material adverse change in the condition
(financial or otherwise), earnings, business affairs or business prospects of
the Company and its subsidiaries, considered as one enterprise, (iv) the Company
shall have in all material respects complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to the
Closing Time, (v) neither the Company nor any Subsidiary shall be in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument to which it is a party or by which it may
be bound or to which any of its properties may be subject, except for such
defaults that would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or business prospects of
the Company and its
-16-
subsidiaries, considered as enterprise, (vi) with the exception of the
representations and warranties in Section 1(a) covered by (i), (ii) (iii) and
(v) above, the other representations and warranties of the Company set forth
herein shall be accurate in all material respects as though expressly made at
and as of the Closing Time and (vii) no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been initiated or, to the knowledge of such officer, threatened by
the Commission. At the Closing Time, each of you shall have received a
certificate of the Chief Executive Officer and the Chief Financial Officer of
the Company, dated as of the Closing Time, to such effect.
(f) At the time that this Agreement is executed by the Company, each of you
shall have received from Deloitte & Touche LLP, independent auditors for the
Company, a letter, dated such a date, in form and substance satisfactory to you.
(g) At the Closing Time, each of you shall have received from Deloitte &
Touche LLP a letter, in form and substance satisfactory to you and dated as of
the Closing Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to Section 6(f), except that the specified date
referred to shall be a date not more than three days prior to the Closing Time.
(h) On or prior to the date of this Agreement, the Underwriters shall have
received lock-up agreements substantially in the form attached hereto as Exhibit
C (with other carve-outs agreed to prior to the date hereof) from each of the
executive officers and directors of the Company listed on Schedule B hereto.
(i) At the Closing Time, counsel for the Underwriters shall have been
furnished with all such documents, certificates and opinions as they may
reasonably request for the purpose of enabling them to pass upon the issuance
and sale of the Securities as contemplated in this Agreement and the matters
referred to in Section 6(e) and in order to evidence the accuracy and
completeness of any of the representations, warranties or statements of the
Company, the performance of any of the covenants of the Company, or the
fulfillment of any of the conditions herein contained; and all proceedings taken
by the Company at or prior to the Closing Time in connection with the
authorization, issuance and sale of the Securities as contemplated in this
Agreement shall be reasonably satisfactory in form and substance to the
Underwriters and to counsel for the Underwriters.
(j) In the event the Underwriters exercise the option granted to them in
Section 2 hereof to purchase all or any portion of the Optional Securities, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company hereunder shall be true
and correct as of each Date of Delivery, and subject to the following further
conditions:
(i) On each Date of Delivery, each of you shall have received the signed
opinion of each of Shearman & Sterling LLP, counsel for the Company,
and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, General Counsel of the Company, in substantially
the form attached hereto as Exhibit B-1, in each case dated such Date
of Delivery, relating to the Optional Securities and otherwise to the
same effect as the opinion required by Section 6(b) hereof.
-17-
(ii) On each Date of Delivery, each of you shall have received the signed
opinion of Lovells, counsel to BEAH(UK), in substantially the form
attached hereto as Exhibit B-2, dated such Date of Delivery, relating
to the Optional Securities and otherwise to the same effect as the
opinion required by Section 6(c) hereof.
(iii) On each Date of Delivery, each of you shall have received the
favorable opinion of Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
dated such Date of Delivery, relating to the Optional Securities and
otherwise to the same effect as the opinion required by Section 6(d)
hereof.
(iv) On each Date of Delivery, each of you shall have received a
certificate of the Chief Executive Officer and the Chief Financial
Officer of the Company, dated such Date of Delivery, confirming that
the certificate delivered at Closing Time pursuant to Section 6(e)
hereof remains true and correct as of such Date of Delivery.
(v) On each Date of Delivery, each of you shall have received a letter
from Deloitte & Touche LLP, in form and substance satisfactory to the
Underwriters, dated such Date of Delivery, substantially the same in
scope and substance as the letter furnished to the Underwriters
pursuant to Section 6(g) hereof, except that the specified date in the
letter furnished pursuant to this subsection shall be a date not more
than three business days prior to such Date of Delivery.
(k) Subsequent to the execution and delivery of this Agreement, there shall
not have occurred (i) any change, or any development or event involving a
prospective change, in the condition (financial or other), business, properties
or results of operations of the Company and the Subsidiaries taken as one
enterprise which, in the judgment of a majority in interest of the Underwriters,
is material and adverse and makes it impractical or inadvisable to proceed with
completion of the offering or the sale of and payment for the Securities; (ii)
any downgrading in the rating of any debt securities of the Company by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the 1933 Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt securities
of the Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating) or any announcement that the Company has been placed on negative
outlook; (iii) any change in U.S. or international financial, political or
economic conditions or currency exchange rates or exchange controls as would, in
the judgment of a majority in interest of the Underwriters, be likely to
prejudice materially the success of the proposed issue, sale or distribution of
the Securities, whether in the primary market or in respect of dealings in the
secondary market; (iv) any material suspension or material limitation of trading
in securities generally on the Nasdaq National Market or any setting of minimum
prices for trading on such exchange; (v) or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter market;
(vi) any banking moratorium declared by U.S. Federal or New York authorities;
(vii) any major disruption of settlements of securities or clearance services in
the United States or (viii) any attack on, outbreak or escalation of hostilities
or act of terrorism involving the United States, any
-18-
declaration of war by Congress or any other national or international calamity
or emergency if, in the judgment of a majority in interest of the Underwriters,
the effect of any such attack, outbreak, escalation, act, declaration, calamity
or emergency makes it impractical or inadvisable to proceed with completion of
the public offering or sale of and payment for the Securities.
(l) At the Closing Time, the Underwriters shall have received a certificate
of the Chief Financial Officer of the Company as to certain agreed upon
information under the caption "Compensation of Executive Officers," contained in
the Company's proxy statement filed with the Commission on April 27, 2004.
(m) At the Closing Time, the Underwriters shall have received a signed
memorandum of AKD ▇▇▇▇▇▇▇ Van Wijmen in respect of matters relating to the
corporate existence of BEAN, dated as of Closing Time, in form and substance
satisfactory to the Underwriters.
If any of the conditions specified in this Section 6 shall not have been
fulfilled when and as required by this Agreement, this Agreement may be
terminated by you on notice to the Company at any time at or prior to the
Closing Time, and such termination shall be without liability of any party to
any other party, except as provided in Section 5. Notwithstanding any such
termination, the provisions of Sections 1 (insofar as Section 8 provides for the
survival of such representations or warranties), 7 and 8 shall remain in effect.
Section 7. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, its affiliates, partners,
directors and officers and each person, if any, who controls such Underwriter
within the meaning of Section 15 of the 1933 Act, against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter, its
affiliate, partner, director and officer and any person controlling such
Underwriter may become subject, under the 1933 Act or the 1934 Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement,
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus or preliminary prospectus supplement, or arise out of or are based
upon the omission or alleged omission to state therein a material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading, including any losses, claims, damages or
liabilities arising out of or based upon the Company's failure to perform its
obligations under Section 3(a) of this Agreement, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company will be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through CSFB
specifically for use therein, it being understood and agreed that the only such
information consists of the information described as such in subsection (b)
below; provided, further, however, that the foregoing indemnity agreement with
respect to losses, claims, damages or liabilities shall not inure to the benefit
of any Initial Purchaser, its affiliates, partners, directors and officers (or
any person controlling any Initial
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Purchaser,) with respect to any losses, claims, damages arising out of or based
upon (x) any untrue statement or alleged untrue statement of any material fact
in the preliminary prospectus supplement or (y) the omission or alleged omission
to state in the preliminary prospectus supplement a material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading, if: (1) the Company furnished sufficient copies
of the Prospectus on a timely basis to permit delivery of the Prospectus to all
persons purchasing notes from the Underwriters in the initial resale of such
notes (such persons "Initial Resale Purchasers") at or prior to the written
confirmation of the sale of the Securities to such person; (2) the Initial
Resale Purchaser asserting such losses, claims, damages or liabilities purchased
Securities in the initial resale from the Underwriters and a copy of the
Prospectus was not sent or given by or on behalf of such Underwriter to such
Initial Resale Purchaser; and (3) the Prospectus would have cured the defect
giving rise to such losses, claims, damages or liabilities.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act,
against any losses, claims, damages or liabilities to which the Company may
become subject, under the 1933 Act or the 1934 Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus or
preliminary prospectus supplement, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through CSFB
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are incurred,
it being understood and agreed that the only such information furnished by the
any Underwriter consists of the following information in the Prospectus
furnished on behalf of each Underwriter: under the caption "Underwriting," the
fourth paragraph, the eleventh paragraph (except for the two last sentences) and
the last paragraph; provided however, that the Underwriters shall not be liable
for any losses, claims, damages or liabilities arising out of or based upon the
Company's failure to perform its obligations under Section 3(a) of this
Agreement.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the failure to notify the indemnifying party shall not relieve it
from any liability that it may have under subsection (a) or (b) above except to
the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided further that the
failure to notify the indemnifying party shall not relieve it from any liability
that it may have to an indemnified party otherwise than under subsection (a) or
(b) above. In case any such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement thereof, the
-20-
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed in writing to the
contrary; (ii) the indemnifying party has failed within a reasonable time after
receiving notice of the commencement of the action to retain counsel reasonably
satisfactory to the indemnified party; (iii) the indemnified party shall have
reasonably concluded (based upon advice of counsel to the indemnified party)
that there may be legal defenses available to it that are different from or in
addition to those available to the indemnifying party; or (iv) the named parties
in any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would (based upon advice of counsel to the indemnified
party) be inappropriate due to a conflict or potential conflict between them. It
is understood and agreed that the indemnifying party shall not, in connection
with any proceeding or related proceeding in the same jurisdiction, be liable
for the fees and expenses of more than one separate firm (in addition to any
local counsel) for all indemnified parties, and that all such fees and expenses
shall be reimbursed as they are incurred. Any such separate firm for any
Underwriter, its affiliates, directors and officers and any control persons of
such Underwriter shall be designated in writing by CSFB and any such separate
firm for the Company, its directors and officers and any control persons of the
Company shall be designated in writing by the Company. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement (i) includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not include a
statement as to, or an admission of, fault, culpability or failure to act by or
on behalf of any indemnified party.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Securities
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by
-21-
the Company bear to the total discounts and commissions received by the
Underwriters from the Company under this Agreement. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities purchased by it were resold exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. The
Underwriters' obligations in this subsection (d) to contribute are several in
proportion to their respective purchase obligations and not joint.
(e) The obligations of the Company under this section shall be in addition
to any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the 1933 Act or the 1934 Act; and the obligations of the
Underwriters under this section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls the Company within the
meaning of the 1933 Act or the 1934 Act.
Section 8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Securities. If this Agreement is
terminated pursuant to Section 9 or if for any reason the purchase of the
Securities by the Underwriters is not consummated, the Company shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section
3 and the respective obligations of the Company and the Underwriters pursuant to
Section 6 shall remain in effect. If the purchase of the Securities by the
Underwriters is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 9 or the occurrence of any
event specified in clause (iii), (iv), (vi), (vii) or (viii) of Section 6(k),
the Company will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Securities.
Section 9. Default. If one or more of the Underwriters shall fail at the
Closing Time to purchase the Securities that it or they are obligated to
purchase (the "Defaulted Securities"), the non-defaulting Underwriters shall
have the right, within 24 hours thereafter, to make arrangements to purchase
all, but not less than all, of the Defaulted Securities upon the terms herein
set forth; if, however, such non-defaulting Underwriters have not completed such
arrangements within such 24-hour period, then:
-22-
(a) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of the Securities to be purchased,
the non-defaulting Underwriters shall be obligated to purchase the full amount
thereof, or
(b) if the aggregate principal amount of Defaulted Securities exceeds 10%
of the aggregate principal amount of the Securities to be purchased, this
Agreement shall terminate without liability on the part of the non-defaulting
Underwriters.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default that does not result in a termination of
this Agreement, either you or the Company shall have the right to postpone the
Closing Time for a period not exceeding seven days in order to effect any
required changes in the Prospectus or in any other documents or arrangements. As
used herein, the term "Initial Purchaser" includes any person substituted for an
Underwriter under this Section 8.
Section 10. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if delivered, mailed
or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Underwriters at Credit Suisse First Boston
LLC, Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇ with
copies to Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP at ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇ Jacob; and notices to the Company
shall be directed to it at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Corporate Senior Vice President of
Administration and Chief Financial Officer with copies to Shearman & Sterling
LLP at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇. ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇▇.
Section 11. Parties. This Agreement is made solely for the benefit of the
Underwriters, the Company and, to the extent expressed, any person who controls
the Company or any Underwriter within the meaning of Section 15 of the 1933 Act,
and the directors of the Company, its officers and their respective executors,
administrators, successors and assigns and no other person shall acquire or have
any right under or by virtue of this Agreement. The term successors and assigns
shall not include any purchaser, as such purchaser, from the Underwriters of the
Securities.
Section 12. Governing Law and Time. This Agreement shall be governed by the
laws of the State of New York. Specified times of the day refer to New York City
time.
Section 13. Waiver of Jury Trial. Each of the Underwriters and the Company
(on its behalf and, to the extent permitted by applicable law, on behalf of its
stockholders and affiliates) waives all right to trial by jury in any action,
proceeding or counterclaim (whether based upon contract, tort or otherwise) in
any way arising out of or relating to this Agreement.
Section 14. Counterparts. This Agreement may be executed in one or more
counterparts and when a counterpart has been executed by each party, all such
counterparts taken together shall constitute one and the same agreement.
-23-
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument
will become a binding agreement between the Company and the Underwriters in
accordance with its terms.
Very truly yours,
BE AEROSPACE, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Corporate Senior Vice
President of Administration
and Chief Financial Officer
-24-
Confirmed and accepted as of
the date first above written:
Credit Suisse First Boston LLC
UBS Securities LLC
▇▇▇▇▇▇▇▇▇ Quarterdeck, a division of ▇▇▇▇▇▇▇▇▇ & Company, Inc.
▇▇▇▇▇▇▇▇ Inc.
By: Credit Suisse First Boston LLC
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
-25-
-------------------------------------------------------------------------------
BE AEROSPACE, INC.
(a Delaware corporation)
16,000,000 Shares
Common Stock
(par value $0.01)
UNDERWRITING AGREEMENT
Dated: September 30, 2004
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
SCHEDULE A
Number of Number of
Initial Securities to be Optional Securities to
Underwriters Purchased be Purchased1
------------ ------------------------ ----------------------
Credit Suisse First Boston LLC................ $8,000,000 $9,200,000
UBS Securities LLC............................ $6,400,000 $7,360,000
▇▇▇▇▇▇▇▇▇ Quarterdeck, a division of
▇▇▇▇▇▇▇▇▇ & Company, Inc...................... $800,000 $920,000
▇▇▇▇▇▇▇▇ Inc.................................. $800,000 $920,000
Total......................................... $16,000,000 $18,400,000
----------------------------------
1 If maximum option is exercised.
SCHEDULE B
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
EXHIBIT A
LIST OF SUBSIDIARIES
BE Aerospace International Ltd., a company incorporated under the laws of
Barbados
BE Aerospace (UK) Holdings Limited, a company incorporated under the Companies
Act (England and Wales)
BE Aerospace (UK) Limited, a company incorporated under the laws of Northern
Ireland
BE Aerospace (Services) Limited, a company incorporated under the Companies Act
(England and Wales)
BE Aerospace (USA), LLC., a Delaware limited liability company
BE Aerospace Netherlands B.V., a company incorporated under the laws of the
Netherlands
Royal Inventum, B.V., a company incorporated under the laws of the Netherlands
▇▇▇▇▇▇▇▇ Industries, Inc., a California Corporation
Acurex LLC, a Delaware limited liability company
BE Aerospace (France) S.A.R.L., a company incorporated under the laws of France
▇▇▇▇▇ Aerospace (France) S.A.R.L., a company incorporated under the laws of
France
Aerospace Lighting Corporation, a New York corporation
Flight Structures, Inc., a Washington corporation
BE Intellectual Property, Inc., a Delaware corporation
BE Aerospace Services, LLC, a Delaware limited liability company
BE Aerospace Australia, Inc., a Delaware corporation
BE Aerospace Canada, Inc., a Delaware corporation
B/E Aerospace (Canada) Company, a Canadian corporation
BE Aerospace El Salvador, Inc., a Delaware corporation
BE Aerospace El Salvador, Sociedad Anonima de Capital Variable,
an El Salvadorian corporation
B/E Aerospace Machined Products, Inc., a Delaware corporation
T.L. Windust Machine, LLC, a California limited liability company
DMGI, LLC, a California limited liability company
▇▇▇▇▇▇▇ Precision, LLC, a California limited liability company
Advanced Thermal Sciences Corporation, a Delaware company
Modoc Engineering Corporation, a California corporation
Advanced Thermal Sciences Corporation, a Delaware corporation
ATS Japan Corporation, a Japanese Kabushiki Kaisha
Advanced Thermal Sciences Taiwan Corporation, a Taiwanese Corporation
Denton Jet Interiors, LLC, a Texas limited liability company
Modern Metals, LLC, a California limited liability company
▇▇▇▇▇▇ Aero Space, LLC, a California limited liability company
M&M Aerospace Hardware, Inc., a Florida corporation
M&M Aerospace Hardware SARL, a French SARL
M&M Aerospace Hardware GmbH, a German company
M&M Aerospace Hardware LTD, a UK company
▇▇▇▇▇▇▇ Acquisition, Inc., a Delaware corporation
B/E Aerospace Development Corporation, a Delaware corporation
IFE Sales, LLC, a Delaware limited liability corporation
Composite Specialities, Inc., a California corporation
C. M. P. SAS, a French societe par actions simplifiee
EXHIBIT B-1
FORM OF OPINION OF SHEARMAN & STERLING LLP
Shearman & Sterling LLP Letterhead
October [ ], 2004
Credit Suisse First Boston LLC
UBS Securities LLC
▇▇▇▇▇▇▇▇▇ Quarterdeck, a division of ▇▇▇▇▇▇▇▇▇ & Company, Inc.
▇▇▇▇▇▇▇▇ Inc.
c/o Credit Suisse First Boston LLC
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
BE Aerospace Inc.
16,000,000 Shares of Common Stock
Ladies and Gentlemen:
We have acted as counsel to BE Aerospace Inc., a Delaware corporation (the
"Company"), in connection with the purchase and sale of 16,000,000 shares of the
Company's Common Stock, par value $.01 per share (the "Securities"), pursuant to
the Underwriting Agreement, dated as of September 30, 2004 (the "Underwriting
Agreement"), between the Company and each of you. This opinion is furnished to
you pursuant to Section 6(b) of the Underwriting Agreement.
In that connection, we have reviewed originals or copies of the following
documents:
(a) The Underwriting Agreement.
(b) The registration statement on Form S-3 (Registration Statement No.
333-112493) filed by the Company under the Securities Act of 1933, as
amended (the "Securities Act"), with the Securities and Exchange Commission
(the "Commission") on February 4, 2004.
(c) The amendment to the registration statement on Form S-3 filed by
the Company with the Commission on February 13, 2004 (the registration
statement, as amended, at the time it became effective, including the
documents incorporated by reference therein, being hereinafter referred to
as the "Registration Statement").
(d) The base prospectus dated February 13, 2004 relating to the
offering of common stock, preferred stock, convertible preferred stock,
warrants to purchase common stock or debt securities, debt securities and
convertible debt securities generally, which is included as part of the
Registration Statement (the "Base Prospectus").
(e) The final prospectus supplement dated September 30, 2004 relating
to the Securities, in the form in which it was filed pursuant to Rule
424(b) under the Securities Act (the "Prospectus Supplement", and together
with the Base Prospectus, including the documents incorporated by reference
therein, the "Prospectus").
The documents described in the foregoing clauses (a) through (e) are
collectively referred to herein as the "Opinion Documents".
On October 6, 2004, a member of the staff of the Commission informed us
orally that no stop order suspending the effectiveness of the Registration
Statement has been issued under the Securities Act. To our knowledge, no
proceedings for that purpose have been initiated or are pending or threatened by
the Commission.
We have also reviewed the following:
(a) The certificate of incorporation and by-laws of the Company, as
amended through February 5, 2004.
(b) The originals or copies of the indentures, loan or credit
agreements, leases, guarantees, mortgages, security agreements, bonds,
notes and other agreements or documents, and the orders, writs, judgments,
injunctions, decrees, determinations and awards, listed in Schedule A.
(c) Originals or copies of such other corporate records of the
Company, certificates of public officials and of officers of the Company
and agreements and other documents as we have deemed necessary as a basis
for the opinions expressed below.
In our review of the Opinion Documents and other documents, we have
assumed:
(a) The genuineness of all signatures.
(b) The authenticity of the originals of the documents submitted to
us.
(c) The conformity to authentic originals of any documents submitted
to us as copies.
(d) As to matters of fact, the truthfulness of the representations
made in the Underwriting Agreement and the other Opinion Documents and in
certificates of public officials and officers of the Company.
(e) That the Underwriting Agreement is the legal, valid and binding
obligation of each party thereto, other than the Company, enforceable
against each such party in accordance with its terms.
-2-
(f) That the proceeds from the sale of the Securities will be used as
described under "Use of Proceeds" in the Final Prospectus Supplement.
We have not independently established the validity of the foregoing assumptions.
"Generally Applicable Law" means the federal law of the United States of
America, and the law of the State of New York (including the rules or
regulations promulgated thereunder or pursuant thereto), that a New York lawyer
exercising customary professional diligence would reasonably be expected to
recognize as being applicable to the Company, the Opinion Documents or the
transactions governed by the Opinion Documents, and for purposes of our opinion
in paragraph 1(a) below, the General Corporation Law of the State of Delaware.
Without limiting the generality of the foregoing definition of Generally
Applicable Law, the term "Generally Applicable Law" does not include any law,
rule or regulation that is applicable to the Company, the Opinion Documents or
such transactions solely because such law, rule or regulation is part of a
regulatory regime applicable to the specific assets or business of any party to
any of the Opinion Documents or any of its affiliates.
Based upon the foregoing and upon such other investigation as we have
deemed necessary and subject to the qualifications set forth below, we are of
the opinion that:
1. The execution and delivery by the Company of the Underwriting
Agreement does not, and the performance by the Company of its obligations
thereunder and the consummation of the transactions contemplated thereby
(and the redemption by the Company of its 9 1/2% Senior Subordinated Notes
due 2008 (the "Redemption")) will not, (a) result in a violation of the
Company's certificate of incorporation or by-laws, (b) result in a
violation of Generally Applicable Law, or any order, writ, judgment,
injunction, decree, determination or award listed in Schedule A, or (c)
result in a breach of, a default under or the acceleration of (or entitle
any party to accelerate) the maturity of any obligation of the Company
under, or result in or require the creation of any lien upon or security
interest in any property of the Company pursuant to the terms of, any
agreement or document listed in the Schedule A.
2. No authorization, approval or other action by, and no notice to or
filing with, any United States federal or New York governmental authority
or regulatory body, or any third party that is a party to any of the
documents listed in Schedule A, is required for the due execution, delivery
or performance by the Company of the Underwriting Agreement, except as have
been obtained and are in full force and effect under the Securities Act and
as may be required under the securities or blue sky laws of any
jurisdiction in the United States in connection with the offer and sale of
the Securities or as may be required in connection with the Redemption.
3. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
4. The Company is not, and will not be as a result of the sale of the
Securities pursuant to the Underwriting Agreement, required to register as
an investment company under the Investment Company Act of 1940, as amended.
-3-
5. The statements in the Prospectus under the captions "Description of
Common Stock" and "Certain U.S. Federal Tax Considerations", insofar as
such statements constitute a summary of legal matters or documents referred
to therein, fairly summarize in all material respects the documents
referred to therein.
Our opinions expressed above are limited to (i) Generally Applicable Law
and (ii) in the case of our opinion in paragraph 4 above, the Investment Company
Act of 1940, as amended, and we do not express any opinion herein concerning any
other law.
In addition, with your approval, matters governed by the laws of the United
Kingdom have been passed upon by Lovells, British counsel to the Company, and we
have assumed, without independent verification, the accuracy of its legal
opinion delivered to you today pursuant to the Agreement with respect to such
laws or matters governed or affected by such laws.
This opinion letter is being furnished to you solely for your benefit in
connection with your purchase of the Securities. This opinion letter may not be
relied upon by you for any other purpose without our prior written consent.
This opinion letter speaks only as of the date hereof. We expressly
disclaim any responsibility to advise you of any development or circumstance of
any kind, including any change of law or fact, that may occur after the date of
this opinion letter that might affect the opinions expressed herein.
Very truly yours,
- 4 -
Schedule A
Indentures, Loan or Credit Agreements, Leases, Guarantees, Mortgages, Security
Agreements, Bonds, Notes, Other Agreements or Documents, Orders, Writs,
Judgments, Injunctions, Decrees, Determinations and Awards
1. Amended and Restated Credit Agreement dated as of February 12, 2004,
between BE Aerospace, Inc., JPMorgan Chase Bank (formerly known as The Chase
Manhattan Bank), as Administrative Agent and the lenders party thereto.
2. Indenture, dated February 13, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Trust Company of New York.
3. Indenture, dated November 2, 1998 between the Company and The Bank of
New York.
4. Indenture, dated April 17, 2001 between the Company and The Bank of New
York.
5. Indenture, dated October 7, 2003 between the Company and The Bank of New
York.
6. Amended and Restated Employment Agreement as of September 14, 2001
between the Company and ▇▇▇▇ ▇. ▇▇▇▇▇▇.
7. Amendment No. 1 to Amended and Restated Employment Agreement dated May
15, 2002 between the Company and ▇▇▇▇ ▇. ▇▇▇▇▇▇.
8. Amended and Restated Employment Agreement as of September 14, 2001
between the Company and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
9. Amendment No. 1 to Amended and Restated Employment Agreement dated May
15, 2002 between the Company and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
10. Amended and Restated Employment Agreement as of September 14, 2001
between the Company and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.
11. Amendment No. 1 to Amended and Restated Employment Agreement dated
September 14, 2001 between the Company and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.
12. Amendment No. 2 to Amended and Restated Employment Agreement dated May
15, 2002 between the Company and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.
13. Employment Agreement dated as of May 28, 1999 between the Company and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
14. Employment Agreement dated as of January 15, 2001 between the Company
and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
15. Employment Agreement dated as of February 26, 2001 between the Company
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.
16. Amended and Restated 1989 Stock Option Plan.
17. Amendment No. 1 to Amended and Restated 1989 Stock Option Plan.
18. 1991 Directors' Stock Option Plan.
19. United Kingdom 1992 Employee Share Option Scheme.
20. 1996 Stock Option Plan.
21. Amendment No. 1 to the 1996 Stock Option Plan.
22. Amendment No. 2 to the 1996 Stock Option Plan.
23. 2001 Stock Option Plan.
24. 2001 Directors' Stock Option Plan.
25. 1994 Employee Stock Purchase Plan (Amended and Restated as of January
19, 2000).
26. Supplemental Executive Deferred Compensation Plan III.
27. Amendment No. 3 to Amended and Restated Employment Agreement dated
March 24, 2003 between the Company and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.
28. Amendment No. 4 to Amended and Restated Employment Agreement dated
April 30, 2003 between the Company and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.
29. Amendment No. 5 to Amended and Restated Employment Agreement dated
October 20, 2003 between the Company and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.
30. Amendment No. 2 to Amended and Restated Employment Agreement dated
October 20, 2003 between the Company and ▇▇▇▇ ▇. ▇▇▇▇▇▇.
31. Amendment No. 2 to Amended and Restated Employment Agreement dated
October 20, 2003 between the Company and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
-2-
October [ ], 2004
Credit Suisse First Boston LLC
UBS Securities LLC
▇▇▇▇▇▇▇▇▇ Quarterdeck, a division of ▇▇▇▇▇▇▇▇▇ & Company, Inc.
▇▇▇▇▇▇▇▇ Inc.
c/o Credit Suisse First Boston LLC
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
BE Aerospace, Inc.
16,000,000 Shares of Common Stock
Ladies and Gentlemen:
We have acted as counsel to BE Aerospace Inc., a Delaware corporation (the
"Company"), in connection with the purchase and sale of 16,000,000 shares of the
Company's Common Stock, par value $.01 per share (the "Securities"), pursuant to
the Underwriting Agreement, dated as of September 30, 2004 (the "Underwriting
Agreement"), between the Company and each of you. This opinion is furnished to
you pursuant to Section 6(b) of the Underwriting Agreement.
In that connection, we have reviewed originals or copies of the following
documents:
(a) The Underwriting Agreement.
(b) The registration statement on Form S-3 (Registration Statement No.
333-112493) filed by the Company under the Securities Act of 1933, as
amended (the "Securities Act"), with the Securities and Exchange
Commission (the "Commission") on February 4, 2004.
(c) The amendment to the registration statement on Form S-3 filed by the
Company with the Commission on February 13, 2004 (the registration
statement, as amended, at the time it became effective, including the
documents incorporated by reference therein, being hereinafter
referred to as the "Registration Statement").
(d) The base prospectus dated February 13, 2004 relating to the offering
of common stock, preferred stock, convertible preferred stock,
warrants to purchase common stock or debt securities, debt securities
and convertible debt securities generally, which is included as part
of the Registration Statement (the "Base Prospectus").
(e) The final prospectus supplement dated September 30, 2004 relating to
the Securities, in the form in which it was filed pursuant to Rule
424(b) under
the Securities Act (the "Prospectus Supplement", and together with the
Base Prospectus, including the documents incorporated by reference
therein, the "Prospectus").
We also reviewed and participated in discussions concerning the preparation
of the Registration Statement and the Prospectus with certain officers or
employees of the Company, with the Company's auditors, and with representatives
of the Underwriters and their counsel. The limitations inherent in the
independent verification of factual matters and in the role of outside counsel
are such, however, that we cannot and do not assume any responsibility for the
accuracy, completeness or fairness of any of the statements made in the
Registration Statement and the Prospectus, except as set forth in paragraph 5 of
our opinion addressed to you, dated the date hereof.
Subject to the limitations set forth in the immediately preceding
paragraph, we advise you that, on the basis of the information we gained in the
course of performing the services referred to above, in our opinion, (a) each of
the documents incorporated by reference in the Prospectus (other than the
financial statements and other financial data contained therein or omitted
therefrom, as to which we express no opinion), at the time it was filed with the
Commission, appears on its face to have been appropriately responsive in all
material respects to the requirements of the Securities Exchange Act of 1934, as
amended, and the applicable rules and regulations of the Commission thereunder,
and (b) each of the Registration Statement and the Prospectus (other than the
financial statements and other financial data contained therein or omitted
therefrom, as to which we express no opinion) appears on its face to be
appropriately responsive in all material respects to the requirements of the
Securities Act and the applicable rules and regulations of the Commission
thereunder.
We further advise you that, subject to the limitations set forth in the
second preceding paragraph, on the basis of the information we gained in the
course of performing the services referred to above, no facts came to our
attention which gave us reason to believe that (i) the Registration Statement
(other than the financial statements and other financial data contained therein
or omitted therefrom, as to which we have not been requested to comment), at the
time it became effective or the date of the Prospectus Supplement, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or (ii) the Prospectus (other than the financial statements and other financial
data contained therein or omitted therefrom, as to which we have not been
requested to comment), as of the date of the Prospectus Supplement or the date
hereof, contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
This letter is being furnished to you solely for your benefit in connection
with your purchase of the Securities, and is not to be used, circulated, quoted
or otherwise referred to for any other purpose.
Very truly yours,
2
FORM OF OPINION OF ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
October [ ], 2004
Credit Suisse First Boston LLC
UBS Securities LLC
▇▇▇▇▇▇▇▇▇ Quarterdeck, a division of ▇▇▇▇▇▇▇▇▇ & Company, Inc.
▇▇▇▇▇▇▇▇ Inc.
c/o Credit Suisse First Boston LLC
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
I am Corporate Vice President Law, General Counsel and Secretary of BE
Aerospace, Inc., a Delaware corporation (the "Company"), and have advised the
Company in connection with the issuance and sale by the Company to Credit Suisse
First Boston LLC, UBS Securities LLC, ▇▇▇▇▇▇▇▇▇ Quarterdeck, LLC, a division of
▇▇▇▇▇▇▇▇▇ & Company, Inc. and ▇▇▇▇▇▇▇▇ Inc. (collectively, the "Underwriters"),
subject to the terms and conditions set forth in the Underwriting Agreement
dated September 30, 2004 (the "Underwriting Agreement"), among the Company and
the Underwriters, of 16,000,000 shares of the Company's common stock, par value
$0.01 per share (the "Securities").
This opinion is being delivered pursuant to Section 6(b) of the
Underwriting Agreement.
In such capacity I have examined a copy of the "Prospectus" which means the
Prospectus, dated February 13, 2004, as supplemented by the Prospectus
Supplement dated September 30, 2004, and the documents incorporated therein by
reference, relating to the Securities and "Registration Statement" which means
the registration statement, as amended through the date hereof, on Form S-3 (No.
333-112493) including the exhibits thereto, and the documents incorporated by
reference or deemed incorporated by reference therein.
I have also examined the Underwriting Agreement, and the originals, or
copies identified to my satisfaction, of such corporate records of the Company
and its subsidiaries, certificates of public officials, officers of the Company
and its subsidiaries and other persons, and such other documents, agreements and
instruments as I have deemed necessary as a basis for the opinions hereinafter
expressed. In my examination, I have assumed the genuineness of all signatures,
the authenticity of all documents submitted to me as originals and the
conformity with the originals of all documents submitted to me as copies. As to
any facts material to the opinions expressed herein which I did not
independently establish or verify, I have relied,
-1-
without investigation, and believe that I am justified in relying, upon such
statements or representations of officers and other representatives of the
Company or others.
I am a member of the Bar of the State of Wisconsin. My opinions set forth
below are limited to the laws of the State of Wisconsin, the General Corporation
Law of the State of Delaware and the federal laws of the United States.
Based upon the foregoing, I am of the opinion that:
(i) The Company is a corporation, duly incorporated, validly existing and
in good standing under the laws of the State of Delaware with corporate power
and authority to conduct its business as described in the Prospectus. The
Company (a) has corporate power to execute, perform and deliver the Underwriting
Agreement and (b) has taken all necessary corporate action necessary to
authorize the execution, delivery and performance of the Underwriting Agreement.
The Company is qualified to transact business, and is in good standing as a
foreign corporation, in Arizona, California, Connecticut, Florida, Indiana,
Kansas, Massachusetts, Minnesota, New Jersey, North Carolina, Ohio, Oklahoma,
Pennsylvania, Tennessee, Texas, Washington and West Virginia; these states
including among them the only jurisdictions in the United States in which the
Company owns or leases real property.
(ii) The authorized, issued and outstanding capital stock of the Company is
as set forth in the Capitalization table in the Prospectus under the caption
"Actual", except for issuances or forfeitures subsequent to the date of the
information provided in such table, if any, pursuant to the Company's stock
option plans. The Securities have been duly authorized and, when issued and
delivered as provided in the Underwriting Agreement, will be validly issued,
fully paid and non-assessable and all other shares of the Company's common
stock, $.01 par value, outstanding on the date hereof were duly authorized and
validly issued and are fully paid and non-assessable. The issuance of the
Securities will not be subject to, and the issuance of all other shares of the
Company's common stock, $.01 par value, outstanding on the date hereof were not
issued in violation of, any preemptive rights pursuant to the General
Corporation Law of the State of Delaware, the certificate of incorporation or
bylaws of the Company or, to the best of my knowledge, any preemptive rights
pursuant to any contract to which the Company is a party or by which it is
bound. The description of the Company's stock option, stock bonus and other
stock plans or arrangements, and the options or other rights granted and
exercised thereunder, set forth or incorporated by reference in the Prospectus
accurately and fairly presents the information required to be shown with respect
to such plans, arrangements, options and rights.
(iii) To the best of my knowledge, (i) the Company is not in violation of
its certificate of incorporation or by-laws, or in default in the performance of
any obligation, agreement or condition in any agreement or instrument known to
us to which the Company is a party or by which any of them is bound and which
default could have a material adverse effect on the business or financial
condition of the Company and its subsidiaries taken as a whole and (ii) the
Company is not in violation of any applicable law, rule or regulation, or, to
our knowledge after having made inquiry of the Company, any order, writ,
injunction or decree, of any jurisdiction, court or governmental
instrumentality, where such violation or default could have a material
-2-
adverse effect on the business or financial condition of the Company and its
subsidiaries taken as a whole.
(iv) The statements made in the Prospectus under the captions
"Business-Legal Proceedings," to the extent that they constitute matters of law
or legal conclusions or descriptions of legal proceedings, have been reviewed by
me and fairly present the information disclosed therein in all material
respects.
(v) To the best of my knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation, to which the Company or any
subsidiary is a party, or to which the property of the Company or any subsidiary
is subject, before or brought by any court or governmental agency or body, which
might reasonably be expected to result in a material adverse effect on the
Company and its subsidiaries, taken as a whole, or which might reasonably be
expected to materially and adversely affect the consummation of the transactions
contemplated in the Underwriting Agreement or the performance by the Company of
its obligations thereunder.
I have reviewed and participated in the preparation of the Registration
Statement and the Prospectus with other officers or employees of the Company,
with its counsel and their auditors, and with representatives of the
Underwriters and I advise you that, on the basis of the information I gained in
the course of performing the services referred to above, no facts came to my
attention which gave me reason to believe that the Registration Statement (other
than the financial statements and other financial data contained therein or
omitted therefrom, as to which I have not been requested to comment), as of the
date of the effectiveness or the date hereof, contained any untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus (other than the financial statements and other financial data
contained therein or omitted therefrom, as to which I have not been requested to
comment), as of its date or the date hereof, contained or contains any untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
This opinion is being furnished by me as General Counsel for the Company to
you solely for your benefit, and is not to be used, circulated, quoted or
otherwise referred to for any other purpose.
Very truly yours,
-3-
EXHIBIT B-2
FORM OF OPINION OF LOVELLS
Lovells Letterhead
October [ ], 2004
Credit Suisse First Boston LLC
UBS Securities LLC
▇▇▇▇▇▇▇▇▇ Quarterdeck, a division of ▇▇▇▇▇▇▇▇▇ & Company, Inc.
▇▇▇▇▇▇▇▇ Inc.
c/o Credit Suisse First Boston LLC
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs
BE Aerospace Holdings (UK) Limited
----------------------------------
1. We have acted as English legal advisers to BE Aerospace Holdings (UK)
Limited (formerly BE Aerospace (UK) Limited and Flight Equipment and
Engineering Limited), a company registered in England and Wales under
registered number 516846, the registered office of which is located at
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ (the
"Company"), since its acquisition by BE Aerospace, Inc. (formerly BE
Avionics, Inc.) (the "Issuer") on 2 April, 1992. We have been asked by the
Issuer, a Delaware corporation, to provide this opinion in connection with
the issue and sale by the Issuer of 16,000,000 shares of the Issuer's
common stock, par value $0.01 per share (the "Initial Securities") and (ii)
an aggregate of not more than 2,400,000 additional shares of the Issuer's
common stock, par value $0.01 purchasable pursuant to the over-allotment
option (the "Additional Securities" and together with the Initial
Securities, the "Securities"). We have been provided with copies of:
(a) the Registration Statement, as amended through the date hereof, on
Form S-3 (No. 333-112493) (the "Registration Statement");
(b) the Prospectus, dated 13 February 2004, as supplemented by the
Prospectus Supplement dated 30 September 2004 relating to the
Securities (the "Prospectus");
(c) the underwriting agreement dated 30 September 2004, made between the
Issuer and you, relating to the issue and sale of the Securities (the
"Underwriting Agreement");
2. We understand that this opinion is required by you pursuant to section 6(c)
of the Underwriting Agreement.
3. For the purpose of giving this opinion, we have examined the following
documents relating to the Company:
(a) the statutory books, including the register of members and the minutes
of board meetings and general meetings of the shareholders contained
therein;
(b) copies of the Memorandum and Articles of Association, Certificate of
Incorporation and Certificate of Incorporation on Change of Name; and
(c) a certificate of good standing issued by the Registrar of Companies on
[ ] October, 2004, a copy of which is annexed hereto marked "A".
4. We have carried out an on-line search of the Company on Companies House
Direct on [ ] October 2004, which revealed no order or resolution to wind
up the Company and no notice of the appointment of an administrator or
receiver of the Company. We have also carried out a search at the Central
Registry of Winding Up Petitions, London on [ ] October 2004, which shows
no pending petition to wind up the Company. We have not conducted any
further search, or any search in any District Registry of the High Court
where winding-up and administration petitions may also be presented in
certain cases, and accordingly this opinion is given on the assumption that
such searches (if made) would not reveal any circumstances which would
require amendment of this opinion.
5. Except for the documents listed in paragraphs 1 and 3 above, we have not
examined for the purposes of this opinion any contracts or other documents
entered into by or affecting the Company or any corporate records of the
Company. We have not made any other enquiries or searches concerning the
Company (whether within this firm or otherwise), except as mentioned in
paragraph 4 above. For the purposes of this opinion, we have relied as to
factual matters upon certificates of officers and directors of the Issuer
and of the Company (copies of which are annexed hereto and marked "B") and
have relied on representations made by the Issuer in the Underwriting
Agreement.
6. This opinion is given only with respect to English law in force at the date
of this letter as applied by English Courts and is given on the basis that
it will be governed by and construed in accordance with English law. No
opinion is expressed or implied as to the laws of any other territory.
7. This opinion is based on the assumptions set out in the appendix to this
letter, which we have taken no steps to verify independently.
8. Based upon and subject to the foregoing, and subject as stated herein and
to any matters not disclosed to us, we are of the opinion that:
(a) the Company is duly incorporated under the Companies ▇▇▇ ▇▇▇▇ as a
private company with limited liability under English law, is validly
existing under English law and has the necessary corporate power under
the Companies Acts of
1985 and 1989 and its Memorandum and Articles of Association to
conduct its business and to own, lease and operate its properties;
(b) as reflected in the register of members of the Company, the Issuer is
the registered holder of all of the 1,781,268 issued ordinary shares
of [British Pound]1 each of the Company and all of the 916,900 issued
3% cumulative redeemable preference shares of [British Pound]1 each of
the Company. Pursuant to Section 361 Companies ▇▇▇ ▇▇▇▇, the register
of members of a company (as defined in that Act) is prima facie
evidence of any matters which are by that Act directed or authorised
to be inserted in it, and of legal ownership of shares;
(c) in the absence of any circumstance by which a member of a company
limited by shares (as defined in the Companies Act 1985) may become
liable for the company's debts, the liability of the member
(including, with respect to the Company, the Issuer) for such debts
will be limited to the par value of the shares held and any premium
agreed to be paid, to the extent that such amounts have not previously
been paid. According to the register of members of the Company, the
on-line search of the Company on Companies House Direct referred to in
paragraph 4 above and the certificates of the officers and directors
of the Issuer and the Company, but having made no other enquiry,
investigation or verification, we are of the opinion that the issued
ordinary shares and preference shares of [British Pound]1 each in the
capital of the Company are fully paid;
(d) the issued cumulative redeemable preference shares of [British Pound]1
each of the Company have been duly authorised and validly issued;
(e) the issued cumulative redeemable preference shares of [British Pound]1
each of the Company were not issued in violation of any pre-emptive
rights under statute or under the Memorandum and Articles of
Association of the Company;
(f) none of the following will result in any breach of the Memorandum and
Articles of Association of the Company:
(i) the execution and delivery by the Issuer of the Underwriting
Agreement, the consummation by the Issuer of the transactions
therein contemplated and the compliance by the Issuer with its
terms;
(ii) the issue and delivery by the Issuer of the Securities as
contemplated by the Underwriting Agreement and the Prospectus;
and
(iii) the consummation by the Issuer of the transactions contemplated
in the Underwriting Agreement and the Prospectus.
(g) the matters referred to in paragraph 8(f)(i) to (iii) inclusive above
do not and will not conflict with, or result in a breach of any of the
terms or provisions of, or
constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the
Company under:
(i) any existing English law, rule or regulation; or
(ii) to our knowledge (based solely upon written notification by the
Company) and on the basis of the certificates of the officers and
directors of the Company and the Issuer, any judgment, order or
decree of any government, governmental instrumentality or court
having jurisdiction over the Company or any of its properties.
9. This opinion is addressed to you in connection with the Issuer. It is
given for your benefit for the purpose of the issue of the Securities
only, and may not be disclosed or quoted to or relied upon by any
other person, without our prior written consent in each specific case,
or used for any other purpose. No person (other than you) into whose
possession a copy of this opinion may come may rely on this opinion
without our express written consent addressed to him.
Yours faithfully
Appendix to Opinion
-------------------
In this opinion, we have assumed that:
(a) All documents submitted to us as originals are authentic and complete and
all signatures and seals are genuine. All photocopies or facsimile
transmitted copies or other copies conform to the originals and the
originals are authentic and complete. All copies certified and other
documents dated earlier than the date of this opinion on which we have
relied remain accurate, complete and in full force and effect at the date
of this opinion.
(b) All documents, forms, notices and information which should have been
delivered to the Companies Registration Office and the Central Registry of
Winding Up Petitions on behalf of or relating to the Company have been so
delivered and the file of records maintained at the Companies Registration
Office and the Central Registry of Winding Up Petitions concerning the
Company was complete, accurate and up-to-date at the time of the respective
searches referred to in paragraph 4 of this opinion.
(c) The Company has not passed a resolution for its winding-up and no
proceedings have been instituted or steps taken for the winding-up of the
Company or the appointment of an administrator or receiver in respect of
all or any assets of the Company.
(d) No law (other than English law) affects any of the conclusions stated in
this opinion.
(e) Each of the resolutions contained in the minutes referred to in paragraph
3(a) of this opinion was duly passed at a properly convened, constituted
and conducted meeting of duly appointed directors or, as the case may be,
shareholders, of the Company at which all constitutional, statutory and
other formalities were duly observed (including, if applicable, those
relating to the declaration of directors' interests or the power of
interested directors to vote); such resolutions have not been amended or
rescinded and are in full force and effect; and the minutes of such
meetings referred to in paragraph 3(a) of this opinion are a true record of
the proceedings at such meetings.
(f) The certificates of the officers and directors of the Issuer and the
Company provided for the purposes of this opinion letter are true and
accurate in all respects.
EXHIBIT C
FORM OF LOCK-UP AGREEMENT
September __, 2004
Credit Suisse First Boston LLC
UBS Securities LLC
▇▇▇▇▇▇▇▇▇ Quarterdeck, a division of ▇▇▇▇▇▇▇▇▇ & Company, Inc.
▇▇▇▇▇▇▇▇ Inc.
c/o Credit Suisse First Boston LLC
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned is a director or officer of BE Aerospace, Inc. (the
"Company"). The undersigned understands that the Company has filed a
registration statement on Form S-3 (Reg. No. 333-112493) with the Securities and
Exchange Commission covering, among other transactions, the sale of up to
15,250,000 shares (the "Securities") of the Company's Common Stock, par value
$0.01 per share (the "Common Stock"), including shares subject to over-allotment
options, to the Underwriters (the "Underwriters") named in the Underwriting
Agreement (the "Underwriting Agreement"). The Underwriters propose to offer such
Shares to the public (the "Offerings").
This letter is being delivered pursuant to Section 6(h) of the
Underwriting Agreement. All capitalized terms used but not defined herein shall
have the meanings assigned to such terms in the Underwriting Agreement.
To induce the Underwriters to participate in the Offerings, the
undersigned represents and warrants to, and agrees with, each of the
Underwriters and the Company that during the period beginning from the date
hereof and until 90 days after the date of the Prospectus, the undersigned will
not offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any shares of Common Stock or securities convertible into or
exchangeable or exercisable for any shares of Common Stock, enter into a
transaction which would have the same effect, or enter into any swap, hedge or
other arrangement that transfers, in whole or in part, any of the economic
consequences of ownership of the Common Stock, whether any such aforementioned
transaction is to be settled by delivery of the Shares of Common Stock or such
other securities, in cash or otherwise, or publicly disclose the intention to
make any such offer, sale, pledge or disposition, or to enter into any such
transaction, swap, hedge or other arrangement, without, in each case, the prior
written consent of CSFB and UBS. In addition, the undersigned agrees that,
without the prior written consent of CSFB and UBS, it will not, during the same
period, make any
demand for or exercise any right with respect to, the registration of the
Securities or any security convertible into or exercisable or exchangeable for
the Securities.
Any share of Common Stock received upon exercise of options granted to
the undersigned will also be subject to this lock-up agreement (the
"Agreement"). Any share of Common Stock acquired by the undersigned in the open
market will not be subject to this Agreement. A transfer of shares of Common
Stock to a family member or trust may be made, provided the transferee agrees to
be bound in writing by the terms of this Agreement prior to such transfer.
In furtherance of the foregoing, the Company and its transfer agent
and registrar are hereby authorized to decline to make any transfer of shares of
Common Stock if such transfer would constitute a violation or breach of this
Agreement.
The undersigned has not taken and will not take, directly or
indirectly, any action which is designed to or which has constituted or which
might reasonably be expected to cause or result in stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of
the Securities.
The undersigned understands that the Company and the Underwriters are
relying upon this Agreement in proceeding toward consummation of the Offering.
The undersigned further understands that this Agreement is irrevocable and shall
be binding upon the undersigned's heirs, legal representatives, successors, and
assigns.
Very truly yours,
----------------------------
[Name]
