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EXHIBIT 1.1
4,000,000 Shares
BE AEROSPACE, INC.
Common Stock (par value $.01 per share)
UNDERWRITING AGREEMENT
___________, 1996
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_____________, 1996
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated
CS First Boston Corporation
PaineWebber Incorporated
c/o Morgan ▇▇▇▇▇▇▇ & Co.
Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
BE Aerospace, Inc., a Delaware corporation (the "Company"), proposes to
issue and sell to the several Underwriters named in Schedule I hereto (the
"Underwriters") 4,000,000 shares of its Common Stock, par value $.01 (the "Firm
Shares").
The Company and certain shareholders of the Company (the "Selling
Shareholders") named in Schedule III hereto also propose to issue and sell to
the several Underwriters not more than an additional 600,000 shares of the
Company's Common Stock, par value $.01 (the "Additional Shares"), if and to the
extent that you shall have determined to exercise, on behalf of the
Underwriters, the right to purchase such shares of common stock granted to the
Underwriters in Section 4 hereof. The Firm Shares and the Additional Shares are
hereinafter collectively referred to as the "Shares." The shares of Common
Stock, par value $.01, of the Company to be outstanding after giving effect to
the sales contemplated hereby are hereinafter referred to as the "Common Stock."
The Company and the Selling Shareholders are hereinafter collectively referred
to as the "Sellers."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (Registration No. 333-16235),
including a prospectus, relating to the Shares. The registration statement as
amended at the time it becomes effective, including the exhibits thereto, the
documents incorporated by reference therein and the exhibits thereto and the
information (if any) deemed to be part of the registration statement at the time
of effectiveness pursuant to Rule 430A under the Securities Act of 1933, as
amended (the "Securities Act"), together with any registration statement the
Company may file pursuant to Rule 462(b) under the Securities Act, which would
become effective upon filing with the Commission (a "Rule 462(b) Registration
Statement"), is hereinafter referred to as the "Registration Statement"; the
prospectus in the form first used to confirm sales of Shares, including the
documents filed by the Company
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with the Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), that are incorporated by reference therein, is hereinafter
referred to as the "Prospectus."
1. Representation and Warranties of the Company. The Company represents
and warrants to each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to
the knowledge of the Company, threatened by the Commission.
(b) (i) Each part of the Registration Statement, when such
part became effective, did not contain and each such part, as amended
or supplemented, if applicable, will not contain any 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, (ii) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iii) the Prospectus does
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except
that the representations and warranties set forth in this paragraph
1(b) do not apply to statements or omissions in the Registration
Statement or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use therein.
(c) The documents incorporated by reference in the Prospectus,
at the time they were filed with the Commission, complied in all
material respects with the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder (the "Exchange Act
Regulations") and, when read together with the other information in the
Prospectus, do not and will not, on the date hereof and on the Closing
Date, include 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, in light of the circumstances under which they were
made, not misleading.
(d) The accountants who have audited certain financial
statements and related notes included in the Registration Statement and
the Prospectus are independent public accountants as required by the
provisions of the Securities Act and the rules and regulations of the
Commission thereunder.
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(e) The financial statements included in the Registration
Statement and the Prospectus present fairly the financial position of
the Company and its subsidiaries on a consolidated basis as of the
dates indicated and 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 of
the Company, 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 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 the Prospectus present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited consolidated financial statements
included in the Registration Statement and the Prospectus.
(f) 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 in good standing would not
have a material adverse effect on the Company and its subsidiaries,
considered as one enterprise.
(g) The Company's only subsidiaries (either direct or
indirect) are: BEA Aerospace International Ltd., a company incorporated
under the laws of Barbados ("BEA International"), Flight Equipment
Engineering Limited, a company incorporated under the Companies Act
(United Kingdom) ("FEEL"), BE Aerospace (U.K) Limited, a company
incorporated under the Companies Act (United Kingdom) ("BEA UK"), Fort
Hill Aircraft Holdings Limited, a company incorporated under the
Companies Act (United Kingdom) ("Fort Hill"), AFI Holdings Limited, a
company incorporated under the Companies Act (United Kingdom) ("AFI"),
Aircraft Furnishing Limited, a company incorporated under the Companies
Act (United Kingdom) ("AFL"), BE Aerospace (Services) Limited, a
company incorporated under the Companies Act (United Kingdom), BE
Aerospace (U.S.A.), Inc., a Delaware corporation ("BEA USA"), BE
Aerospace (Netherlands) B.V., a company incorporated under the laws of
the Netherlands ("BEA Netherlands"), Royal Inventum, B.V., a company
incorporated under the laws of the Netherlands ("Royal Inventum"),
▇▇▇▇▇▇▇▇ Industries, Inc., a California corporation ("▇▇▇▇▇▇▇▇"),
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Acurex Corporation, a Delaware corporation ("Acurex"), and BE Aerospace
(France) S.A.R.L., a company incorporated under the laws of France
("BEA France") (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
Acurex, FEEL and Royal Inventum. Each Subsidiary 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 each Subsidiary 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 BEA France, director's
qualifying shares, and five shares owned by The K.A.D. Companies, Inc.,
an investment, venture capital and consulting firm owned by ▇▇▇▇ ▇.
▇▇▇▇▇▇, the Chief Executive Officer 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 FEEL are pledged to The Chase Manhattan
Bank (National Association) ("Chase") under the Amended Bank Credit
Agreement dated as of January 24, 1996 (the "Amended Bank Credit
Agreement"), (2) 65% of the issued and outstanding capital stock of BEA
Netherlands is pledged to Chase under the Amended Bank Credit
Agreement, (3) the outstanding capital stock of each of BEA USA and
Acurex is pledged to Chase under the Amended Bank Credit Agreement and
(4) the outstanding capital stock of each of CNC and BEA UK is charged
to Barclays Bank PLC pursuant to a debenture over the assets of FEEL
dated November 19, 1992. 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, a note from Acurex in the principal amount of $6,950,000,
a note from FEEL in the principal amount of (pound)69,541 and a note
from BEA Netherlands in the principal amount of Dfls. 49,385,000.
(h) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus.
(i) 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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(j) The shares of capital stock of the Company outstanding
prior to the issuance of the Shares 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.
(k) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable, and the issuance of such
Shares will not be subject to any preemptive or similar rights.
(l) This Agreement has been duly authorized, executed and
delivered by the Company.
(m) 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 and the 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 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.
(n) No authorization, approval, consent or license of any
government, governmental instrumentality or court, domestic or foreign
(other than the securities
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or "blue sky" laws of the various states), is required 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 except such of the foregoing as will be obtained prior
to the Closing Date.
(o) Since the respective dates as of which information is
given in the Prospectus, except as otherwise stated therein, there has
not been (A) any material adverse change, or any development involving
a prospective change, in the condition, (financial or otherwise), or in
the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, 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.
(p) 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 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 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; 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,
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; there are
no legal or governmental proceedings pending or, to the knowledge of
the Company, threatened to which the Company or any of its subsidiaries
is a party or to which any of the properties of the Company or any of
its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or
any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(q) The Company and each of the Subsidiaries has good and
marketable title to all properties and assets described in the
Prospectus as owned by it, free and clear of all liens, charges,
encumbrances or restrictions, except such as (i) are
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described in the Prospectus or (ii) 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.
(r) The Company and each of the Subsidiaries 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.
(s) The Company and each of the Subsidiaries 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.
(t) 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 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.
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(u) 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 Common Stock.
(v) The Shares have been approved for quotation on the Nasdaq
National Market System ("Nasdaq") by the National Association of
Securities Dealers, Inc.
(w) 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 United States federal income tax returns of the
Company through the period ended July 28, 1991 have been settled and no
assessment in connection therewith has been made against the Company.
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.
(x) 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;
and (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. The Company and its 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
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applicable law, regulation or rule or that would be required to be
disclosed in the Prospectus or Registration Statement.
(y) Except for ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ pursuant to an agreement
relating to the sale and purchase of the business and undertaking of
JFB Engineering Company Limited by and between ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, JFB
Engineering Company Limited, FEEL and the Company dated April 3, 1992,
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
Securities Act and such registration rights of ▇▇. ▇▇▇▇▇▇▇ will not be
triggered by the transactions contemplated by this Agreement.
(z) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act
and the rules and regulations of the Commission thereunder.
(aa) The Company is not an "investment company" or an
"affiliated person" of, or "promoter" or "principal underwriter" for,
an "investment company," as such terms are defined in the Investment
Company Act of 1940, as amended.
(ab) 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
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noncompliance or violation, investigations or proceedings relating in
any way to any Environmental Law.
2. Representations and Warranties of the Selling Shareholders. Each of
the Selling Shareholders represents and warrants to and agrees with each of the
Underwriters that:
(a) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of,
and the performance by such Selling Shareholder of its obligations
under, this Agreement and the Irrevocable Power of Attorney and Custody
Agreement signed by such Selling Shareholder, the Company, as
Custodian, and _____________, relating to the deposit of the Options
(as hereinafter defined) and, upon exercise of the Options, the deposit
of the Shares to be sold by such Selling Shareholder with the Custodian
and appointing ____________ as such Selling Shareholder's
attorney-in-fact to the extent set forth therein, relating to the
transactions contemplated hereby and by the Registration Statement (the
"Irrevocable Power of Attorney and Custody Agreement"), will not
contravene any provision of applicable law or any agreement or other
instrument binding upon such Selling Shareholder or any judgment, order
or decree of any governmental body, agency or court having jurisdiction
over such Selling Shareholder, and no consent, approval, authorization
or order of, or qualification with, any governmental body or agency is
required for the performance by such Selling Shareholder of its
obligations under this Agreement or the Irrevocable Power of Attorney
and Custody Agreement, except such as may be required by the securities
or Blue Sky laws of the various states in connection with the offer and
sale of the Shares.
(c) Each of the Selling Shareholders has, and on the Option
Closing Date (as hereinafter defined) will have, valid and marketable
title, free and clear of all security interests, claims, liens,
equities and other encumbrances, to options (the "Options") which are
exercisable into no less than the number of shares of Common Stock set
forth next to such Selling Shareholder's name in Schedule III hereto
(such shares of Common Stock constituting the Shares to be sold by such
Selling Shareholder pursuant to this Agreement) and on the Option
Closing Date such Selling Shareholder will, upon exercise of the
Options on the Option Closing Date, have valid and marketable title,
free and clear of all security interests, claims, liens, equities and
other encumbrances, to such Shares, and the legal right and power, and
all authorization and approval required by law, to enter into this
Agreement and the Irrevocable Power of Attorney and Custody Agreement
and to sell, transfer and deliver the Shares to be sold by such Selling
Shareholder.
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(d) At the Option Closing Date, the Shares to be sold by such
Selling Shareholder pursuant to this Agreement will have been duly
authorized and will be validly issued, fully paid and non-assessable.
(e) The Irrevocable Power of Attorney and Custody Agreement
has been duly authorized, executed and delivered by such Selling
Shareholder and is a valid and binding agreement of such Selling
Shareholder, enforceable in accordance with its terms, except as (i)
the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) the
availability of equitable remedies may be limited by equitable
principles of general applicability.
(f) Delivery of the Shares to be sold by such Selling
Shareholder pursuant to this Agreement will pass title to such Shares
free and clear of any security interests, claims, liens, equities and
other encumbrances.
(g) All information furnished to the Company by or on behalf
of such Selling Shareholder expressly for use in the Registration
Statement and Prospectus is, and on the Closing Date (as hereinafter
defined) will be, true, correct and complete, and does not, and on the
Closing Date will not, contain any untrue statement of material fact or
omit to state any material fact necessary to make such information not
misleading.
(h) Such Selling Shareholder has not taken and will not 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 Common Stock (provided that such
Selling Shareholder does not make any representation as to any actions
that may be taken by any Underwriter); and such Selling Shareholder has
not distributed and will not distribute any prospectus or other
offering material in connection with the offering and sale of the
Shares other than any preliminary prospectus supplement filed with the
Commission or the Prospectus or other material permitted by the
Securities Act.
(i) Such Selling Shareholder has no direct or indirect
association or affiliation with any National Association of Securities
Dealers, Inc. members and has had no arrangements, dealings or
affiliation with, and is not aware of any information relating to
underwriting compensation payable to or for the benefit of, any member
of the National Association of Securities Dealers, Inc., person
associated with a member or any Underwriter, relating to the offering
of Shares that has not been disclosed in the Registration Statement.
3. Certificates. 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
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deemed a representation and warranty by the Company to the Underwriters as to
the matters covered thereby.
4. Agreements to Sell and Purchase. The Company hereby agrees to sell
to the several Underwriters, and the Underwriters, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agree, severally and not jointly, to purchase from the
Company the respective numbers of Firm Shares set forth in Schedule I hereto
opposite their names at $____ a share -- the purchase price.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company and the Selling
Shareholders agree to sell to the Underwriters the Additional Shares, and the
Underwriters shall have a one-time right to purchase, severally and not jointly,
up to 600,000 Additional Shares at the purchase price. Additional Shares may be
purchased from the Company and the Selling Shareholders (in such amounts as are
set forth in Schedule III hereto) and as provided in Section 6 hereof solely for
the purpose of covering overallotments made in connection with the offering of
the Firm Shares. If any Additional Shares are to be purchased, each Underwriter
agrees, severally and not jointly, to purchase the number of Additional Shares
(subject to such adjustments to eliminate fractional shares as you may
determine) that bears the same proportion to the total number of Additional
Shares to be purchased as the number of Firm Shares set forth in Schedule I
hereto opposite the name of such Underwriter bears to the total number of Firm
Shares. If any Additional Shares are to be purchased, such Additional Shares
shall first be purchased from the Selling Shareholders on a pro rata basis
(based upon the aggregate number of Additional Shares that may be purchased from
the Selling Shareholders) until all such Additional Shares to be sold by the
Selling Shareholders, as set forth in Schedule III hereto, have been purchased,
and the remaining Additional Shares, if any, shall be purchased from the
Company.
The Company hereby agrees that, without the prior written consent of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, it will not (A) offer, pledge, sell, contract
to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock
or (B) enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of the Common
Stock, whether any such transaction described in clause (A) or (B) above is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise for a period of 90 days after the date of the Prospectus, other than
(i) the Shares to be sold hereunder, (ii) the issuance by the Company of shares
of Common Stock upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof and described in the Prospectus or (iii)
the issuance by the Company of shares of Common Stock or options pursuant to
stock
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option or employee benefit plans of the Company as such plans are in effect on
the date of the Prospectus.
5. Terms of Public Offering. The Sellers have been advised by you that
the Underwriters propose to make a public offering of their respective portions
of the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Sellers have been further
advised by you that the Shares are to be offered to the public initially at
$____ a share (the public offering price) and to certain dealers selected by you
at a price that represents a concession not in excess of $____ a share under the
public offering price, and that any Underwriter may allow, and such dealers may
reallow, a concession, not in excess of $____ a share, to any Underwriter or to
certain other dealers.
6. Payment and Delivery. Payment for the Firm Shares shall be made by
wire transfer in immediately available funds to the Company at the offices of
Shearman & Sterling, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, at 9:00 A.M., New
York City time, the third (fourth, if the pricing occurs after 4:30 P.M., New
York City time, on any given day) full business day after the date hereof
(unless postponed pursuant to Section 12), or at such other time not more than
ten full business days thereafter as you and the Company shall determine. The
time and date of such payment are hereinafter referred to as the Closing Date.
Payment for any Additional Shares shall be made by wire transfer in
immediately available funds to the Company or the Selling Shareholders, as the
case may be, at the offices of Shearman & Sterling, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, at 9:00 A.M., local time, on such date (which may be the same as
the Closing Date but shall in no event be earlier than the Closing Date nor
later than ten business days after the giving of the notice hereinafter referred
to) as shall be designated in a written notice from you to the Sellers of their
determination, on behalf of the Underwriters, to purchase a number, specified in
said notice, of Additional Shares, or on such other date, in any event not later
than 40 days after the date hereof, as shall be designated in writing by you.
The time and date of such payment are hereinafter referred to as the Option
Closing Date. The notice of the determination to exercise the option to purchase
Additional Shares and of the Option Closing Date may be given at any time within
30 days after the date of this Agreement.
Certificates for the Firm Shares and Additional Shares, if any, to be
purchased by the Underwriters shall be in definitive form and registered in such
names and in such denominations as you shall request in writing not later than
two full business days prior to the Closing Date or the Option Closing Date, as
the case may be. The certificates evidencing the Firm Shares and Additional
Shares, if any, will be made available in New York City for examination and
packaging by you not later than 10:00 A.M., New York City time, on the business
day prior to the Closing Date or Option Closing Date, as the case may
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be. The certificates evidencing the Firm Shares and Additional Shares, if any,
shall be delivered to you on the Closing Date or the Option Closing Date, as the
case may be, for the respective accounts of the several Underwriters, with any
transfer taxes payable in connection with the transfer of the Shares to the
Underwriters duly paid, against payment of the purchase price therefor.
7. Conditions to the Underwriters' Obligations. The obligations of the
Sellers and the several obligations of the Underwriters hereunder are subject to
the condition that the Registration Statement shall have become effective not
later than the date hereof.
The several obligations of the Underwriters hereunder are subject to
the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization" as
such term is defined for purposes of Rule 436(g)(2) under the
Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations, of the Company and its subsidiaries, taken as a
whole, from that set forth in the Registration Statement,
that, in your judgment, is material and adverse and makes it,
in your judgment, impracticable to market the Shares on the
terms and in the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect that the representations and warranties
of the Company contained in this Agreement are true and correct as of
the Closing Date, that there has not occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating accorded
any of the Company's securities as described in Section 7(a)(i) and
that the Company has complied with all of the agreements and satisfied
all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date.
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The officer signing and delivering such certificate may rely
upon the best of his knowledge as to proceedings threatened.
(c) No stop order suspending the effectiveness of the
Registration Statement shall be in effect and no proceedings for such
purpose shall be pending before or, to the knowledge of the Company,
threatened by the Commission.
(d) You shall have received on the Closing Date an opinion of
Ropes & ▇▇▇▇, counsel for the Company, dated the Closing Date, in the
form attached hereto as Exhibit A.
(e) You shall have received on the Closing Date an opinion of
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, counsel to BEA UK and FEEL, dated the Closing
Date, in the form attached hereto as Exhibit B.
(f) You shall have received on the Closing Date an opinion of
Trenite Van Doorne, counsel to Royal Inventum, dated the Closing Date
in the form attached hereto as Exhibit C.
(g) You shall have received on the Closing Date an opinion of
▇▇▇▇▇ ▇▇▇▇▇▇▇, counsel to the Selling Shareholders, dated the Closing
Date in the form attached hereto as Exhibit D.
(h) You shall have received on the Closing Date an opinion of
Shearman & Sterling, counsel for the Underwriters, dated the Closing
Date, with respect to the Registration Statement and the Prospectus and
such other related matters as you may reasonably request, and such
counsel shall have received such documents and information as they may
reasonably request to enable them to pass upon such matters.
(i) You shall have received, on each of the date hereof and
the Closing Date, a letter dated the date hereof or the Closing Date,
as the case may be, in form and substance satisfactory to you, from
Deloitte & Touche L.L.P., independent public accountants, containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(j) The "lock-up" agreements, in the form attached hereto as
Exhibit E, between you and the officers and directors of the Company
named in Schedule II hereto and delivered to you on or before the date
hereof, shall be in full force and effect on the Closing Date.
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(k) The Shares shall have been approved for quotation on the
Nasdaq National Market by the National Association of Securities
Dealers, Inc.
(l) You shall have received on the Closing Date certificates
dated the Closing Date and signed by each of the Selling Shareholders
or by the attorney-in-fact of the Selling Shareholders, to the effect
that the representations and warranties of each such Selling
Shareholder contained in this Agreement are true and correct as of the
Closing Date and that each such Selling Shareholder has complied with
all of the agreements and satisfied all of the conditions on its part
to be performed or satisfied hereunder on or before the Closing Date.
(m) The Company shall have complied with the provisions of
Section 8(a) hereof with respect to the furnishing of Prospectuses on
the business day next succeeding the date of this Agreement, in such
quantities as you shall have reasonably requested.
(n) You shall have received such other documents and
certificates as are reasonably requested by you or your counsel.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the delivery to you on the Option Closing Date
of such documents as they may reasonably request with respect to the good
standing of the Company, the due authorization and issuance of the Additional
Shares and other matters related to the issuance of the Additional Shares.
8. Covenants of the Company. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants as follows:
(a) To furnish to you, without charge, four signed copies of
the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and to furnish to you in New York
City, without charge, prior to 10:00 A.M. New York City time on the
business day next succeeding the date of this Agreement and during the
period mentioned in paragraph (c) below, as many copies of the
Prospectus and any supplements and amendments thereto or to the
Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each such
proposed amendment or supplement and to file no such proposed amendment
or supplement to which you reasonably object.
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(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of your counsel the Prospectus
is required by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if, in the opinion of your counsel, it is necessary to
amend or supplement the Prospectus to comply with law, forthwith to
prepare, file with the Commission and furnish, at its own expense, to
the Underwriters and to the dealers (whose names and addresses you will
furnish to the Company) to which Shares may have been sold by you on
behalf of the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request and to pay all expenses (including fees and
disbursements of counsel) in connection with such qualification and in
connection with any review of the offering of the Shares by the
National Association of Securities Dealers, Inc, 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.
(e) If the Company elects to rely on Rule 462(b) under the
Securities Act, the Company shall file a Rule 462(b) Registration
Statement with the Commission in compliance with Rule 462(b) under the
Securities Act no later than the earlier of (i) 3:00 P.M. New York City
time on the date hereof and (ii) the time confirmations are sent or
given, as specified by Rule 462(b)(2) under the Securities Act, and
shall pay the applicable fees in accordance with Rule 111 under the
Securities Act.
(f) To make generally available to the Company's security
holders and to you, as soon as practicable but not later than 60 days
after the end of the twelve-month period beginning at the end of the
Company's fiscal quarter during which the effective date of the
Registration Statement occurs, an earning statement of the Company
covering such twelve-month period that satisfies the provisions of
Section 11(a) of the Securities Act and the rules and regulations of
the Commission thereunder.
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(g) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid the following: (i) the fees, disbursements and
expenses of the Company's counsel and the Company's accountants in
connection with the registration and delivery of the Shares under the
Securities Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the
mailing and delivering of copies thereof to the Underwriters and
dealers, in the quantities hereinabove specified, (ii) all costs and
expenses related to the transfer and delivery of the Shares to the
Underwriters, including any transfer or other taxes payable thereon,
(iii) the cost of printing or producing any Blue Sky or Legal
Investment memorandum in connection with the offer and sale of the
Shares under state securities laws and all expenses in connection with
the qualification of the Shares for offer and sale under state
securities laws as provided in paragraph (d) above, including filing
fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection
with the Blue Sky or Legal Investment memorandum, (iv) all filing fees
and disbursements of counsel to the Underwriters incurred in connection
with the review and qualification of the offering by the National
Association of Securities Dealers, Inc., (v) all costs and expenses
incidental to listing the Shares on Nasdaq, (vi) the cost of printing
certificates representing the Shares, (vii) the costs and charges of
any transfer agent, registrar or depositary, (viii) the costs and
expenses of the Company relating to investor presentations on any "road
show" undertaken in connection with the marketing of the offering,
including, without limitation, expenses associated with the production
of road show slides and graphics, fees and expenses of any consultants
engaged in connection with the road show presentations with the prior
approval of the Company, travel and lodging expense of the
representatives and officers of the Company and any such consultants,
and the cost of any aircraft chartered in connection with the road show
and (ix) all other costs and expenses incident to the performance of
the obligations of the Company hereunder for which provision is not
otherwise made in this paragraph. It is understood, however, that
except as provided in this Section , Section 8 and the third paragraph
of Section 10 below, the Underwriters will pay all of their costs and
expenses, including fees and disbursements of their counsel, stock
transfer taxes payable on resale of any of the Shares by them, and any
advertising expenses connected with any offers they may make.
9. Covenants of the Selling Shareholders. In further consideration of
the agreements of the Underwriters herein contained, each of the Selling
Shareholders severally and not jointly covenants as follows:
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(a) Whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, to pay or cause to be paid
(i) all taxes, if any, on the transfer and sale of the Shares being
sold by such Selling Shareholder and (ii) the fees, disbursements and
expenses of counsel for such Selling Shareholder.
(b) Such Selling Shareholder has carefully reviewed the
Registration Statement and will carefully review, promptly upon
receipt, each amendment thereto provided to such Selling Shareholder.
Such parts of the Registration Statement, including the tables and
notes thereto, that specifically relate to such Selling Shareholder,
and, to the best of the knowledge of such Selling Shareholder, the
other portions of the Registration Statement, do not contain an untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading. At any time during the period from
the date hereof through the Closing Date, if there is any change in the
information referred to in the preceding sentence relating to such
Selling Shareholder, such Selling Shareholder will immediately notify
the Company of such change.
(c) Such Selling Shareholder shall cooperate fully with the
Company in supplying such information relating to such Selling
Shareholder and the Shares as the Company may reasonably request for
use in preparation of the Registration Statement and all other
documents reasonably necessary or desirable in connection with the
offering of Shares. In addition, such Selling Shareholder shall furnish
to the Company (or, at the Company's request, to the Underwriters or
other parties) such further certificates and documents confirming the
representations and warranties contained herein, or with respect to
related matters, as the Company may reasonably request.
10. Indemnity and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses,
claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred by any Underwriter or any
such controlling person in connection with defending or investigating
any such action or claim) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the
Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, except insofar as such
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losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based
upon information relating to any Underwriter furnished to the Company
in writing by such Underwriter through you expressly for use therein.
(b) The Company will indemnify and hold harmless each of the
Selling Shareholders to the same extent that the Company indemnifies
and holds harmless each Underwriter pursuant to the preceding
paragraph; provided, however, the Company shall not be liable under
this paragraph to the extent any losses, claims, damages or liabilities
described in the preceding paragraph arise out of or are based upon an
untrue statement or omission or alleged untrue statement or omission
based upon information relating to such Selling Shareholder furnished
in writing by or on behalf of such Selling Shareholder expressly for
use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
(c) Each Selling Shareholder agrees to indemnify and hold
harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the
Company within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act and each Underwriter and each person,
if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably
incurred in connection with defending or investigating any such action
or claim) caused by any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or any
amendment thereof, any preliminary prospectus or the Prospectus (as
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, but
only with reference to information relating to such Selling Shareholder
furnished in writing by or on behalf of such Selling Shareholder
expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto.
(d) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Selling Shareholders, the
directors of the Company, the officers of the Company who sign the
Registration Statement and each person, if any, who controls the
Company within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Seller to such Underwriter, but only with reference
to information relating to such Underwriter furnished to the Company in
writing by such Underwriter through
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you expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto.
(e) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to subsection (a), (b), (c) or
(d) of this Section 10, such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought
(the "indemnifying party") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. 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 to the retention of such counsel or (ii) the named
parties to 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 be
inappropriate due to actual or potential differing interests between
them. It is understood that the indemnifying party shall not, in
respect of the legal expenses of any indemnified party in connection
with any proceeding or related proceedings in the same jurisdiction, be
liable for (i) if the indemnifying party is the Company or a Selling
Shareholder, the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Underwriters and all persons, if
any, who control any Underwriter within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act, (ii) if the
indemnifying party is an Underwriter or a Selling Shareholder, the fees
and expenses of more than one separate firm (in addition to any local
counsel) for the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act and (iii) if the indemnifying party is
the Company or an Underwriter, the fees and expenses of more than one
separate firm (in addition to any local counsel) for all Selling
Shareholders and that all such fees and expenses shall be reimbursed as
they are incurred. In the case of any such separate firm for the
Underwriters and such control persons of Underwriters, such firm shall
be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated. In the
case of any such separate firm for the Company, and such directors,
officers and control persons of the Company, such firm shall be
designated in writing by the Company. In the case of any such separate
firm for the Selling Shareholders, such firm shall be designated in
writing by the person named as attorney-in-fact for the Selling
Shareholders under the Power of Attorney. The indemnifying party shall
not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the indemnifying party agrees to
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indemnify the indemnified party from and against any loss or liability
by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by the second and third sentences
of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of
such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending
or threatened proceeding 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 includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding.
(f) If the indemnification provided for in subsection (a),
(b), (c) or (d) of this Section 10 is unavailable to an indemnified
party or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party under
such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party or parties on the
one hand and the indemnified party or parties on the other hand from
the offering of the Shares 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 indemnifying party
or parties on the one hand and the indemnified party or parties on the
other hand in connection with the statements or omissions that resulted
in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by
the Sellers on the one hand and the Underwriters on the other hand in
connection with the offering of the Shares shall be deemed to be in the
same respective proportions as the net proceeds from the offering of
the Shares (before deducting expenses) received by each Seller and the
total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table (and in the
footnotes thereto) on the cover of the Prospectus, bear to the
aggregate public offering price of the Shares. The relative fault of
the Sellers on the one hand and the Underwriters on the other hand
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 Sellers or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement
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or omission. The Underwriters' respective obligations to contribute
pursuant to this Section 10 are several in proportion to the respective
number of Shares they have purchased hereunder, and not joint.
(g) The Sellers and the Underwriters agree that it would not
be just or equitable if contribution pursuant to this Section 10 were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or
payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section
10, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Shares underwritten
by it and distributed to the public were offered to the public exceeds
the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section 10 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(h) The indemnity and contribution provisions contained in
this Section 10 and the representations and warranties of the Company
and the Selling Shareholders contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or
by or on behalf of the Company, its officers or directors or any person
controlling the Company, or by or on behalf of the Selling Shareholders
and (iii) acceptance of and payment for any of the Shares.
11. Termination. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York
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shall have been declared by either Federal or New York State authorities or (iv)
there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in your judgment, is
material and adverse and (b) in the case of any of the events specified in
clauses (a)(i) through (iv), such event singly or together with any other such
event makes it, in your judgment, impracticable to market the Shares on the
terms and in the manner contemplated in the Prospectus.
12. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the later of (x) execution and delivery hereof by the parties
hereto and (y) release of notification of the effectiveness of the Registration
Statement by the Commission.
If, on the Closing Date or the Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Shares that
it or they have agreed to purchase hereunder on such date, and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule I bears to the aggregate number of
Firm Shares set forth opposite the names of all such nondefaulting Underwriters,
or in such other proportions as you may specify, to purchase the Shares which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the number of Shares that
any Underwriter has agreed to purchase pursuant to Section 4 be increased
pursuant to this Section 12 by an amount in excess of one-ninth of such number
of Shares without the written consent of such Underwriter. If, on the Closing
Date or the Option Closing Date, as the case may be, any Underwriter or
Underwriters shall fail or refuse to purchase Shares and the aggregate number of
Shares with respect to which such default occurs is more than one-tenth of the
aggregate number of Shares to be purchased on such date, and arrangements
satisfactory to you, the Company and the Selling Shareholders for the purchase
of such Shares are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-defaulting Underwriter,
the Company or the Selling Shareholders. In any such case either you, the
Company or (in the case of such a failure on the Option Closing Date) the
Selling Shareholders shall have the right to postpone the Closing Date or the
Option Closing Date, as the case may be, but in no event for longer than seven
days, in order that the required changes, if any, in the Registration Statement
and in the Prospectus or in any other documents or arrangements may be effected.
Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of any Seller to comply with
the terms or to fulfill any of the conditions of this Agreement, or if for any
reason any of the Sellers shall be unable to
26
25
perform its obligations under this Agreement, the Sellers will reimburse the
Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the
fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated
hereunder.
13. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
27
Very truly yours,
BE AEROSPACE, INC.
By______________________________
The Selling Shareholders named in
Schedule III hereto
By_______________________________
Attorney-in-Fact
Accepted as of the date first above written:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
INCORPORATED
CS FIRST BOSTON CORPORATION
PAINEWEBBER INCORPORATED
Acting severally on behalf of themselves
and the several Underwriters
named in Schedule I hereto.
By ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated
By__________________________
28
27
SCHEDULE I
Underwriters
Number of
Firm Shares
Underwriter To Be Purchased
----------- ---------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
CS First Boston Corporation
PaineWebber Incorporated
------------------
Total Shares.................................................
==================
29
28
SCHEDULE II
Lock-up Agreements
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
E. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
30
29
SCHEDULE III
Selling Shareholders
Number of
Seller Additional Shares
------ -----------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 35,000
PAP Stock Trust 10,000
PLP Stock Trust 10,000
LP Stock Trust 10,000
======
65,000
31
1
EXHIBIT A
FORM OF
OPINION OF ROPES & ▇▇▇▇
[Ropes & ▇▇▇▇ Letterhead]
[Date]
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
CS FIRST BOSTON CORPORATION
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
PAINEWEBBER INCORPORATED
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as counsel for BE Aerospace, Inc., a Delaware
corporation (the "Company"), in connection with the issuance and sale by the
Company of 4,000,000 shares of Common Stock, par value $.01 per share (the
"Shares"). This opinion is furnished to you pursuant to Section 7(d) of the
Underwriting Agreement dated December ___, 1996 (the "Underwriting Agreement")
among the Company, the Selling Shareholders named in Schedule III thereto and
the several Underwriters, including yourselves, named in Schedule I thereto (the
"Underwriters") relating to the issuance and sale of the Shares. Terms defined
in the Underwriting Agreement and not otherwise defined herein are used herein
with the meanings so defined.
We have attended the closing of the sale of Shares held today.
We have examined signed copies of the registration statement on Form S-3
(Registration No. 333- 16235), filed by the Company under the Securities Act of
1933, as amended (the "Securities Act"), with the Securities and Exchange
Commission (the "Commission") on November 15, 1996, and of the amendment thereto
filed by the Company with the Commission on
32
2
_____________, 1996 and copies of the related prospectuses (the registration
statement as amended at the time when it became effective, including the
information deemed to be part thereof at the time of effectiveness pursuant to
Rule 430A of the rules and regulations of the Commission under the Securities
Act, being hereinafter referred to as the "Registration Statement," and the
final prospectus dated December ___, 1996 in the form in which it was filed
pursuant to Rule 424(b) of the Commission under the Securities Act, being
hereinafter referred to as the "Prospectus"); the documents filed by the Company
under the Securities Exchange Act of 1934, as amended (the "Exchange Act") which
are incorporated by reference in the Registration Statement and the Prospectus
(the "Incorporated Documents"); an executed copy of the Underwriting Agreement;
and such other documents as we have deemed necessary as a basis for the opinions
expressed herein. Additionally, we have relied upon oral advice from the staff
of the Commission to the effect that the Registration Statement became effective
on December ___, 1996. Except as otherwise specified herein, all references to
the Registration Statement or the Prospectus include the Incorporated Documents
and the exhibits and schedules thereto.
We express no opinion as to the laws of any jurisdiction other
than those of The Commonwealth of Massachusetts, the General Corporation Law of
the State of Delaware and the federal laws of the United States of America.
Insofar as this opinion relates to factual matters,
information with respect to which is in the possession of the Company, we have
made inquiries to the extent we believe reasonable with respect to such matters
and have relied upon representations made by the Company in the Underwriting
Agreement and representations made to us by one or more officers of the Company.
Although we have not independently verified the accuracy of such representations
we do not know of the existence or absence of any fact contradicting such
representations. Any reference herein to "our knowledge," "known to us" or any
variation thereof shall mean the actual knowledge of lawyers in this firm who
have participated in our representation of the Company in connection with the
preparation of the Registration Statement and the Prospectus. With respect to
our opinion set forth in paragraphs 6(ii) and 7(iii) below, other than as
specified therein we have not searched the dockets of any court, administrative
body, agency or other filing office in any jurisdiction.
Based upon and subject to the foregoing, we are of the opinion
that:
1. Each of the Company and Acurex is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, with corporate power to own or lease all assets owned or leased by it
and conduct its business as described in the Prospectus. The Company has
authority to issue, sell and deliver the Shares, to execute and deliver the
Underwriting Agreement and to perform its obligations thereunder. The Company is
qualified to transact business, and is in good standing as a foreign
corporation, in California, Connecticut, Florida, Massachusetts, Minnesota, New
Jersey and Washington;
33
3
the states of California, Connecticut, Florida, Minnesota, New Jersey and
Washington being the only jurisdictions in the United States in which the
Company has advised us that it owns or leases real property. Acurex is qualified
to transact business, and is in good standing as a foreign corporation, in
California and Florida; the states of California and Florida being the only
jurisdictions in which the Company has advised us that Acurex owns or leases
real property.
2. 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 Shares and the other shares of the Company's common stock,
$.01 par value per share (together, the "Common Stock") issued and outstanding
on this date as set forth in the certificate of the Company's Chief Financial
Officer included in the documents delivered at the closing have been duly
authorized and validly issued and are fully paid and nonassessable. None of the
shares of Common Stock was issued in violation of any preemptive rights under
the Delaware General Corporation Law or the Restated Certificate of
Incorporation of the Company or, to the best of our knowledge, any preemptive
rights pursuant to any contract to which the Company is a party or by which it
is bound.
3. The authorized capital stock of the Company conforms to the
description thereof contained in the Prospectus under the caption "Description
of Capital Stock."
4. The statements made (a) in the Prospectus under the
captions "Business- Legal Proceedings," and "Description of Capital Stock" and
(b) in the Registration Statement in Item 15, in each case to the extent that
they constitute matters of law or legal conclusions, have been reviewed by us
and fairly present the information.
5. The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
6. To the best of our knowledge, (i) neither the Company nor
Acurex is 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 or Acurex is a party or
by which either 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) except as set forth in the Prospectus
under the captions "Risk Factors" and "Business - Legal Proceedings," neither
the Company nor Acurex is 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 adverse
effect on the business or financial condition of the Company and its
subsidiaries taken as a whole.
34
4
7. The execution and delivery of the Underwriting Agreement,
the issuance and sale of the Shares and compliance by the Company with the terms
of the Underwriting Agreement do not, and will not, result in any violation of,
be in conflict with, constitute a default under, or result in the creation of a
lien under, any term or provision of (i) the certificate of incorporation or
by-laws of the Company or Acurex, (ii) any agreement or instrument known to us
to which the Company or Acurex is a party or by which either of them or their
properties is bound or (iii) any applicable law 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, except
that we express no opinion as to state securities or "blue sky" laws and except
that we express no opinion in this paragraph 7 as to compliance with the
antifraud provisions of federal and state securities laws.
8. No authorization, approval, consent or license of any
governmental or regulatory body, agency or instrumentality of the United States
or any state thereof is required for the (i) valid issuance of the Shares, (ii)
sale of the Shares to you as contemplated by the Underwriting Agreement or (iii)
execution, delivery or performance by the Company of the Underwriting Agreement
other than such as have been obtained, except that we express no opinion with
respect to qualification under, or compliance with, any state securities or
"blue sky" laws or the review of the underwriting arrangements pursuant to the
rules of the National Association of Securities Dealers, Inc.
9. The Company is not an "investment company" or an
"affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company," as such terms are defined in the Investment Company Act of
1940, as amended.
10. The Registration Statement became effective under the
Securities Act on December ___, 1996; any required filing of the Prospectus and
of any supplements thereto pursuant to Rule 424(b) has been made in the manner
and within the time period required by Rule 424(b); and, to the best of our
knowledge, the Registration Statement is still effective, no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or are
contemplated under the Securities Act.
11. The Registration Statement and the Prospectus and each
amendment or supplement thereto, excluding the documents incorporated be
reference therein and except for financial statements and schedules included
therein as to which we express no opinion, as of their respective effective or
issue dates, complied as to form in all material respects with the Securities
Act and the published rules and regulations of the Commission thereunder.
35
5
12. The Incorporated Documents (except for the financial
statements and schedules included therein as to which we express no opinion), as
of the dates they were filed with the Commission, comply as to form in all
material respects to the requirements of the Exchange Act and the published
rules and regulations of the Commission thereunder.
13. To the best of our knowledge, no legal or governmental
proceedings are pending or threatened to which the Company or Acurex is a party
or to which any of the properties of the Company or Acurex is subject that are
required to be described in the Registration Statement or the Prospectus and are
not so described and there are no statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that are not
described or filed as required.
We have not independently verified the accuracy, completeness
or fairness of the statements made or the information contained in the
Registration Statement or the Prospectus and, except with respect to the
descriptions referred to in paragraphs 2, 3 and 4 above, we are not passing upon
and do not assume any responsibility therefor. In the course of the preparation
by the Company of the Registration Statement and the Prospectus, we have
participated in discussions with your representatives and those of the Company
and its independent accountants, in which the business and affairs of the
Company and the contents of the Registration Statement and the Prospectus were
discussed. On the basis of information that we have gained in the course of our
representation of the Company in connection with its preparation of the
Registration Statement and the Prospectus and our participation in the
discussions referred to above, we have no reason to believe that (i) as of its
effective date, the Registration Statement contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or (ii) the
Prospectus, as of the date hereof, contains any untrue statement of a material
fact or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. We express no opinion, however, as to the financial statements,
including the notes and schedules thereto, or any other financial or accounting
information set forth or referred to in the Registration Statement or the
Prospectus.
This opinion is furnished by us as counsel for the Company to
you as Underwriters and is solely for the benefit of the Underwriters.
Very truly yours,
Ropes & ▇▇▇▇
36
EXHIBIT B
FORM OF
OPINION OF ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
[▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Letterhead]
[Date]
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
CS FIRST BOSTON CORPORATION
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
PAINEWEBBER INCORPORATED
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
BE AEROSPACE (UK) LIMITED AND FLIGHT EQUIPMENT AND ENGINEERING LIMITED
1. We have acted as English legal advisers to BE Aerospace (UK) Limited
(formerly Flight Equipment and Engineering Limited), a company
registered in England and Wales under registered number 516846, the
registered office of which is located at ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ("BEA(UK)"), since its acquisition by BE
Aerospace, Inc. (formerly BE Avionics, Inc.) (the "Issuer") on 2 April,
1992. We have also acted as English legal advisers to Flight Equipment
and Engineering Limited, a company registered in England and Wales
under registered number 1417308, the registered office of which is
located at ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
("FEEL"), 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 4,000,000 shares of Common Stock, par value $.01
per share (the "Shares"). We have been provided with copies of:-
37
2
(a) the Registration Statement dated _________, 1996, and
amendments thereto dated _________ and _____________,
respectively, related to the Shares;
(b) the Prospectus dated ____________ 1996, related to the Shares;
(c) the underwriting agreement dated as of _________, 1996, among
the Issuer, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, as
representative of the several underwriters named in Schedule I
thereto and the selling shareholders named in Schedule III
thereto relating to the issue and sale of the Shares (the
"Underwriting Agreement");
2. We understand that this opinion is required by you pursuant to Section
7(e) of the Underwriting Agreement.
3. For the purposes of giving this opinion, we have examined the following
documents relating to each of BEA(UK) and FEEL:-
(a) 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 and
Certificate of Incorporation; and
(c) Certificates of good standing issued by the Registrar of
Companies on _________, 1996, copies of which are annexed
hereto marked "A".
4. We have carried out a search of microfiches relating to each of BEA(UK)
and FEEL supplied to us by the Companies Registration Office on
_________, 1996, timed at _______ which revealed no order or resolution
to wind up either BEA(UK) or FEEL and no notice of the appointment of
an administrator or receiver of either BEA(UK) or FEEL. We have also
carried out a search at the Central Registry of Winding Up Petitions,
London on _________, 1996, which shows no pending petition to wind up
either BEA(UK) or FEEL. 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 paragraph 3 above, we have not
examined for the purposes of this opinion any contracts or other
documents entered into by or affecting either BEA(UK) or FEEL or any
corporate records of either BEA(UK) or FEEL. We have not made any other
enquiries or searches concerning either BEA(UK) or FEEL
38
3
(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 BEA(UK) and FEEL 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) each of BEA(UK) and FEEL 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 ▇▇▇ ▇▇▇▇
and 1989 and its Memorandum and Articles of Association to
conduct its business and to own, lease and operate its
properties as described in the Prospectus at pages ____
(copies of which are annexed hereto marked "B");
(b) as reflected in the register of members of BEA(UK), the Issuer
is the registered holder of the 500,000 issued ordinary shares
of (pound)1 each of BEA(UK) and the 380,000 shares issued
cumulative redeemable preference shares of (pound)1 each of
BEA(UK). 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) as reflected in the register of members of FEEL, BEA(UK) is
the registered holder of the 100 issued ordinary shares of
(pound)1 each of FEEL. 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;
(d) 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 BEA(UK), the Issuer
or with respect to FEEL, BEA(UK)) for such debts will be
limited to the par value of the shares held and any premium
agreed to be
39
4
paid, to the extent that such amounts have not been paid by
any previous holder of those shares. According to the register
of members of each of BEA(UK) and FEEL, the search of
microfiches relating to each of BEA(UK) and FEEL referred to
in paragraph 4 above and the certificates of the officers and
directors of the Issuer, BEA(UK) and FEEL, but having made no
other enquiry, investigation or verification, we are of the
opinion that the issued ordinary shares of (pound)1 each in
BEA(UK) and FEEL are fully paid;
(e) the issued cumulative redeemable preference shares of (pound)1
each of BEA(UK) have been duly authorised, validly issued and
fully paid;
(f) the issued cumulative redeemable preference shares of (pound)1
each of BEA(UK) were not issued in violation of any
pre-emptive rights under statute or under the Memorandum and
Articles of Association of BEA(UK);
(g) none of the following will result in any breach of the
Memorandum and Articles of Association of either of BEA(UK) or
FEEL:-
(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; and
(ii) the issue and delivery by the Issuer of the Shares as
contemplated by the Prospectus;
(h) the matters referred to in paragraph 8(g)(i) and (ii) 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 either BEA(UK) or
FEEL under:-
(i) any existing English law, rule or regulation; or
(ii) to our knowledge (based solely upon written
notification by BEA(UK) and FEEL) and on the basis of
the certificates of the officers and directors of
BEA(UK), FEEL and the Issuer, any judgment, order or
decree of any government, governmental
instrumentality or court having jurisdiction over
BEA(UK) or FEEL or any of their properties.
40
5
9. This opinion is addressed to you in connection with the Issue. It is
given for your benefit for the purpose of the issue of the Shares 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
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
41
6
Appendix to Opinion
In this opinion letter, we have assumed that:-
(a) All documents submitted to us as originals are authentic and complete
and all signatures and seals are genuine.
(b) All documents supplied to us as photocopies or facsimile transmitted
copies or other copies conform to the originals and such originals are
authentic and complete.
(c) 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, and reproduced on microfiche for public
inspection or disclosed to us orally, was complete, accurate and
up-to-date at the time of the respective searches referred to in
paragraph 4 of this opinion letter and there has been no change in the
information filed or the oral disclosure made since the date on which
those searches were made.
(d) All documents dated earlier than the date of this opinion letter on
which we have expressed reliance remain accurate, complete and in full
force and effect at the date of the opinion letter.
(e) Neither BEA(UK) nor FEEL has passed a resolution for its winding-up and
no proceedings have been instituted or steps taken for the winding-up
of BEA(UK) or FEEL or the appointment of an administrator or receiver
in respect of all or any assets of BEA(UK) or FEEL.
(f) No law (other than English law) affects any of the conclusions stated
in this opinion letter.
(g) The resolutions contained in the minutes referred to in paragraph 3(a)
of this opinion letter were duly passed at a properly convened,
constituted and conducted meeting of duly appointed directors and
shareholders, respectively, 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
letter are a true record of the proceedings at such meetings.
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(h) The certificates of the officers and directors of the Issuer and
BEA(UK) and FEEL provided for the purposes of this opinion letter are
true and accurate in all respects.
43
EXHIBIT C
FORM OF
OPINION OF TRENITE VAN DOORNE
[Trenite van Doorne Letterhead]
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
CS FIRST BOSTON CORPORATION
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
PAINEWEBBER INCORPORATED
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Rotterdam, [ ] _________ 1996
Ladies and Gentlemen:
Re: Royal Inventum Company B.V.
We have acted as legal advisers in The Netherlands to BE Aerospace (Netherlands)
B.V. ("BEAN"), Koninklijke Fabriek Inventum B.V. ("KFI") and BE Aerospace (Sales
and Services) B.V. ("BEASS"), which companies have their registered office at
▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, for the purpose of rendering
an opinion on certain matters of Netherlands law in connection with the issue
and sale by BE Aerospace Inc. of 4,000,000 shares of Common Stock, par value
$.01 per share (the "Shares"). We understand that this opinion is required by
you pursuant to Section 7(f) of the underwriting agreement dated as of
_________, 1996, among the Issuer, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, as
representative of the several underwriters named in Schedule I thereto and the
selling shareholders named in Schedule III thereto relating to the issue and
sale of the Shares.
For the purposes of this opinion, we have examined and relied only on the
following documents:
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(a) a copy of the Registration Statement dated _________, 1996, and
amendments thereto dated _________ and _____________, respectively,
related to the Shares;
(b) a copy of the Prospectus dated ____________ 1996, related to the
Shares;
(c) a copy of the notarial deed of incorporation of BEAN, KFI and BEASS
dated 28 April 1993, 20 May 1915 and 20 August 1990 respectively (the
"Deeds of Incorporation");
(d) a copy of the articles of association (as amended) of BEAN and KFI
dated 20 May 1994 and of BEASS, dated 11 January 1995 (the "Articles of
Association");
(e) a copy of the register of shareholders of BEAN, KFI and BEASS
respectively (the "Shareholders Registers");
(f) an extract dated ____________ 1996 (updated by a computer generated
extract dated [_________]) from the Commercial Register
(Handels-register) in Utrecht, The Netherlands in respect of BEAN, KFI
and BEASS respectively (the "Extracts");
(g) two notarial deeds of transfer of shares in the share capital of BEASS
dated 22 September 1994 (the "Deeds of Transfer");
(h) a notarial deed of transfer of shares in the share capital of KFI dated
29 April 1993 (the "Deed of Transfer KFI")
The documents referred to in paragraphs (a) to (h) inclusive above are
hereinafter referred to as the "Certificates".
In connection with such examination and in giving this opinion, we have assumed:
(i) the genuineness of all signatures to all Documents and Certificates,
the authenticity and completeness of all Documents and Certificates
submitted to us as originals, the completeness and the conformity to
the original documents of all Documents and Certificates submitted to
us as copies and the authenticity of such original documents;
(ii) the legal capacity (handelingsbekwaamheid) of the natural persons
acting on behalf of any of the parties, the due incorporation and valid
existence of, the power, authority and legal rights of, and the due
authorization and execution of each of the Documents by, each of the
parties thereto under any applicable law to execute the Documents to
which it is a party and to perform its obligations thereunder;
45
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(iii) the due compliance with all matters of, and the validity, binding
effect and enforceability of each of the Documents under any applicable
law other than Netherlands law;
(iv) the accuracy, validity and binding effect of the Certificates and the
matters certified or evidenced thereby at the date hereof (and any
other relevant date); and
(v) the due execution by the parties thereto of the Documents, submitted to
and examined by us in draft, in the form of such drafts.
This opinion shall be governed by and construed in accordance with Netherlands
law and is given only with respect to Netherlands law in effect on the date of
this opinion. We have not investigated and express no opinion as to the law of
any jurisdiction other than The Netherlands, the completenes or accuracy of any
representations or warranties made by the parties to the Documents in relation
to BEAN, KFI or BEASS respectively, any matters of fact, tax law, anti-trust law
or international law, including, without limitation, the law of the European
Community (except to the extent that such representations, warranties and
matters of fact and law are explicitly covered by the opinions below). No
opinion is given on any commercial, accounting or non-legal matters or on the
ability of the parties to the Documents to meet their financial or other
obligations thereunder. We have assumed that any foreign law which may apply
with respect to the Documents or the transactions contemplated thereby and any
document not examined by us does not affect this opinion.
Based on and subject to the foregoing, and subject to the qualifications set out
below, we express the following opinions:
1 Each of BEAN, KFI and BEASS is a closed company with limited liability
(besloten vennootschap met beperkte aansprakelijkheid), duly
incorporated and validly existing under the laws of The Netherlands.
2 According to the deed of incorporation and the shareholders register of
BEAN, BE Aerospace Inc. ("BEAI"), with registered office at ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, U.S.A., is the
registered holder of 36 (thirty six) issued ordinary registered shares,
with a par value of NLG 1,000 each, and BE Aerospace (USA) Inc.
("BEAU"), with registered office at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, U.S.A., is the registered holder of 4 (four)
issued ordinary registered shares, with a par value of NLG 1,000 each,
in the issued share capital of BEAN consisting of 40 shares.
3 According to the shareholders register of KFI and the Deed of Transfer
KFI, BEAN is the registered holder of 5,584 (five thousand five hundred
and eighty-four) issued
46
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ordinary registered shares, with a par value of NLG 500 each, in the
issued share capital of KFI consisting of 5604 shares.
4 According to the shareholders register of BEASS and the Deeds of
Transfer, BEAN is the registered holder of 40 (forty) shares, with a
par value of NLG 1,000 each, in the issued share capital of BEASS
consisting of 40 shares.
5 In the absence of any circumstance by which a shareholder of a closed
company with limited liability (een besloten vennootschap met beperkte
aansprakelijkheid) may become liable for the company's debts, the
liability of BEAN, as shareholder of KFI and BEASS, will be limited to
the obligation to fully pay the par value of the shares held and any
share premium agreed to be paid, to the extent that such amounts have
not been paid. Pursuant to the Articles of Association, BEAI and BEAU,
as shareholders of BEAN, are each personally liable for everything
performed in the name of BEAN. According to the Shareholders Registers
and the Extracts, but having made no other enquiry, investigation or
verification, the par value of the issued ordinary shares in BEAN, KFI
and BEASS is fully paid.
6. The execution and delivery by the Issuer of the Documents and, where
appropriate, the consummation by the Issuer of the transactions therein
contemplated and the compliance by the Issuer with its terms will not
result in any conflict with rules of Netherlands law or in any breach
of the articles of association of either BEAN or KFI.
The opinions expressed above are subject to the following qualifications:
(A) Our opinions expressed herein are subject to and limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting the protection or enforcement of priorities
and creditors' rights generally, including, without limitation, those
governing the avoidance and/or validity of transactions entered into
and securities created at a time when a company is, or may in
consequence thereof become, unable to pay its debts.
(B) We have assumed that the Extracts fully and accurately reflect the
corporate status and position of BEAN, KFI and BEASS respectively. It
is noted, however, that the Extracts may not completely and accurately
reflect such status and position insofar as there may be a delay
between the taking of a corporate action (such as the issuance of
shares, the appointment or removal of a director, a winding-up
(ontbinding) or suspension of payment resolution or the making of a
court order, like a winding-up, suspension of payment or bankruptcy
order) and the filing of the necessary documentation at the Commercial
Register and a further delay between such filing and an entry appearing
on the file of the relevant party at the Commercial Register.
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(C) There is no public register of shares in The Netherlands. In respect of
the title to shares in the share capital of BEAN, KFI and BEASS
respectively per the date of this opinion, we have compared the deed of
incorporation of BEAN with the shareholders register of BEAN, the Deed
of Transfer KFI with the shareholders register of KFI and the Deeds of
Transfer with the shareholders register of BEASS and established the
consistency of each of these Certificates. The absence of any
registration in the Shareholders Registers of any subsequent transfer
of title to the shares of BEAN, KFI or BEASS (as the case may be) is,
however, no conclusive evidence that any such subsequent transfer of
title has not occurred.
(D) We have assumed that the difference between the total number of shares
issued in the share capital of KFI and the number of shares held by
BEAN, as reflected in the shareholders register of KFI, is explained by
the fact that at conversion of the company of KFI from a company
limited by shares (naamlose vennootschap) into a closed company with
limited liability (besloten vennootschap met beperkte
aansprakelijkheid) on 2 March 1992, not each holder of shares has
offered its shares in order to be registered as a shareholder of the
company, as converted. Pursuant to section 2:183, subsection 4, of the
Dutch Civil Code, after conversion a shareholder is not able to
exercise the rights pertaining to the shares as long as the shareholder
has not been registered in the shareholders register of the company. A
holder of shares that has not offered his shares at conversion in order
to be registered as a shareholder, does not forfeit the right to be
registered as a shareholder still after conversion. If such holder(s)
of shares represent(s) less than 5% of the issued share capital, the
shareholder owning title to at least 95% of the issued share capital
has the right to institute a claim against the joined other holders of
shares for transfer of their shares to him pursuant to section 2:201a
of the Dutch Civil Code.
This opinion is solely for your benefit in this particular matter and the
context specified herein and no opinion may be inferred or implied beyond that
expressly stated herein. It may not be, without our prior written consent,
transmitted or otherwise disclosed to, or relied upon by, others, referred to in
any other matter or context whatsoever, or be quoted or made public in any way,
save for disclosure to your legal advisors.
Yours faithfully,
Trenite van Doorne
48
EXHIBIT D
FORM OF
OPINION OF ▇▇▇▇▇ ▇▇▇▇▇▇▇
[ ____________ Letterhead]
[Date]
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
CS FIRST BOSTON CORPORATION
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
PAINEWEBBER INCORPORATED
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as counsel for ______________ (the "Selling
Shareholders") and are rendering this opinion pursuant to Section 7(g) of the
Underwriting Agreement dated ___________ 1996 (the "Underwriting Agreement")
among BE Aerospace, Inc. (the "Company"), the several underwriters (the
"Underwriters") named in Schedule I of the Underwriting Agreement and the
Selling Shareholders. Terms defined in the Underwriting Agreement and not
otherwise defined herein are used herein with the meanings so defined.
In connection with our opinion herein, we have examined copies
of the Underwriting Agreement, each of the Irrevocable Power of Attorney and
Custody Agreements dated _________ 1996 (the "Irrevocable Power of Attorney and
Custody Agreements") between each Selling Shareholder, the Company and
___________, and such other documents as we have deemed necessary as a basis for
the opinions expressed herein.
In such examination, we have assumed the authenticity of all
documents submitted to us as originals, the genuineness of all signatures, the
legal capacity of all natural persons and the conformity with the original
documents of any copies thereof submitted to us for our examination.
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We express no opinion as to the laws of any jurisdiction other
than __________, the General Corporation Law of the State of Delaware and the
federal laws of the United States of America.
Based upon the foregoing, we are of the opinion that:
(i) the Underwriting Agreement has been duly authorized, executed and
delivered by or on behalf of each of the Selling Shareholders;
(ii) the execution and delivery by each of the Selling Shareholders of,
and the performance by each of the Selling Shareholders of its obligations
under, the Underwriting Agreement and the Irrevocable Power of Attorney and
Custody Agreements will not contravene any provision of applicable law or, to
the best of our knowledge, any agreement or other instrument binding upon such
Selling Shareholder or, to the best of our knowledge, any judgment, order or
decree of any governmental body, agency or court having jurisdiction over such
Selling Shareholder, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by such Selling Shareholder of its obligations under the
Underwriting Agreement or the Irrevocable Power of Attorney and Custody
Agreement, except such as may be required by the securities or Blue Sky laws of
the various states in connection with offer and sale of the Shares;
(iii) each of the Selling Shareholders has valid and marketable title,
free and clear of all security interests, claims, liens, equities and other
encumbrances, to the Options and, upon exercise of the Options on the Option
Closing Date, will have valid and marketable title, free and clear of all
security interests, claims, liens, equities and other encumbrances, to the
Shares to be sold by such Selling Shareholder pursuant to the Underwriting
Agreement;
(iv) the Irrevocable Power of Attorney and Custody Agreements have been
duly authorized, executed and delivered by each of the Selling Shareholders and
are valid and binding agreements of the Selling Shareholders and are enforceable
in accordance with their terms, except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) the availability of equitable remedies may be limited by
equitable principles of general applicability; and
(v) delivery of the Shares to be sold by each of the Selling
Shareholders pursuant to the Underwriting Agreement will pass title to such
Shares free and clear of any security interests, claims, liens, equities and
other encumbrances.
This opinion is furnished by us as counsel for the Selling
Shareholders to you as Underwriters and is solely for the benefit of the
Underwriters.
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Very truly yours,
--------------------
51
EXHIBIT E
FORM OF LOCK-UP AGREEMENT
Lock-up Agreement
December __, 1996
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
CS First Boston Corporation
PaineWebber Incorporated
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned understands that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇"), as Representative of the several Underwriters,
proposes to enter into an Underwriting Agreement (the "Underwriting Agreement")
with BE Aerospace, Inc., a Delaware corporation (the "Company") and certain
shareholders of the Company (the "Selling Shareholders") providing for the
public offering (the "Public Offering") by the several Underwriters, including
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "Underwriters"), of shares of the common stock, par value
$0.01 per share, of the Company (the "Common Stock").
To induce the Underwriters that may participate in the Public
Offering to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ on behalf of the Underwriters, it will not, during the period commencing
on the date hereof and ending 90 days after the date of the final prospectus
relating to the Public Offering (the "Prospectus"), (1) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock (provided that such shares or securities are either now owned by
the undersigned or are hereafter acquired prior to or in connection with the
Public Offering), or (2) enter into any swap or other arrangement that transfers
to another, in whole or in part, any of the economic consequences of ownership
of such shares of Common Stock, whether any such transaction described in clause
(1) or (2) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to the
sale of any Shares to the Underwriter pursuant to the Underwriting Agreement. In
addition, the undersigned agrees that, without the prior
52
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written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the Underwriters, it will not,
during the period commencing on the date hereof and ending 90 days after the
date of the Prospectus, make any demand for or exercise any right with respect
to, the registration of any shares of Common Stock or any security convertible
into or exercisable or exchangeable for Common Stock.
Whether or not the Public Offering actually occurs depends on
a number of factors, including market conditions. Any Public Offering will only
be made pursuant to an Underwriting Agreement, the terms of which are subject to
agreement between the Company and the Underwriters.
Very truly yours,
--------------------------------
(Name)
--------------------------------
(Address)