SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 12, 1998
BE AEROSPACE, INC.
(Exact name of Registrant as specified in its charter)
Delaware 0-18348 06-1209796
(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification No.)
incorporation)
1400 Corporate Center Way
Wellington, Florida 33414
(Address of principal executive offices) (Zip Code)
Registrants telephone number, including area code: (561) 791-5000
----------------------------------------
(Former name or former address, if changed since last report.)
Exhibit Index on Page 8
2
Item 5. Other Events.
Stock Rights Plan
On November 12, 1998, the Board of Directors of BE Aerospace,
Inc. (the "Company") declared a distribution of one Right for each outstanding
share of Common Stock, par value $0.01 per share (the "Company Common Stock"),
to stockholders of record at the close of business on November 23, 1998 and for
each share of Company Common Stock issued (including shares distributed from
Treasury) by the Company thereafter and prior to the Distribution Date. Each
Right entitles the registered holder, subject to the terms of the Rights
Agreement, to purchase from the Company one one-thousandth of a share (a "Unit")
of Series A Preferred Stock, par value $0.01 per share (the "Preferred Stock"),
at a Purchase Price of $100.00 per Unit, subject to adjustment. The Purchase
Price is payable in cash or by certified or bank check or money order payable to
the order of the Company, or by wire transfer of immediately available funds to
the account of the Company. The description and terms of the Rights are set
forth in a Rights Agreement between the Company and BankBoston, N.A. as Rights
Agent (the "Rights Agreement").
Initially, the Rights will attach to all certificates
representing shares of outstanding Company Common Stock, and no separate Rights
Certificates will be distributed. The Rights will separate from the Company
Common Stock and the Distribution Date will occur upon the earlier of (i) 10
days following a public announcement (the date of such announcement being the
"Stock Acquisition Date") that a person or group of affiliated or associated
persons (other than the Company, any Subsidiary of the Company or any employee
benefit plan of the Company or such Subsidiary) (an "Acquiring Person") has
acquired, obtained the right to acquire or otherwise obtained beneficial
ownership of 15% or more of the then outstanding shares of Company Common Stock,
and (ii) 10 business days (or such later date as may be determined by action of
the Board of Directors prior to such time as any person becomes an Acquiring
Person) following the commencement of a tender offer or exchange offer that
would result in a person or group beneficially owning 15% or more of the then
outstanding shares of Company Common Stock. Until the Distribution Date, (i) the
Rights will be evidenced by Company Common Stock certificates and will be
transferred with and only with such Company Common Stock certificates, (ii) new
Company Common Stock certificates issued after November 23, 1998 (also including
shares distributed from Treasury) will contain a notation incorporating the
Rights Agreement by reference and (iii) the surrender for transfer of any
certificates representing outstanding Company Common Stock will also constitute
the transfer of the Rights associated with the Company Common Stock represented
by such certificates.
The Rights are not exercisable until the Distribution Date and
will expire at the close of business on the tenth anniversary of the Rights
Agreement unless earlier redeemed by the Company as described below.
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As soon as practicable after the Distribution Date, Rights
Certificates will be mailed to holders of record of Company Common Stock as of
the close of business on the Distribution Date and, thereafter, the separate
Rights Certificates alone will represent the Rights.
In the event that (i) the Company is the surviving corporation
in a merger with an Acquiring Person and shares of Company Common Stock shall
remain outstanding, (ii) a Person becomes an Acquiring Person, (iii) an
Acquiring Person engages in one or more "self-dealing" transactions as set forth
in the Rights Agreement, or (iv) during such time as there is an Acquiring
Person, an event occurs which results in such Acquiring Person's ownership
interest being increased by more than 1% by means of a reclassification,
recapitalization or other transaction (each such event being a "Section
11(a)(ii) Event"), then, in each such case, each holder of a Right will
thereafter have the right to receive, upon exercise, Units of Preferred Stock
(or, in certain circumstances, Company Common Stock, cash, property or other
securities of the Company) having a value equal to two times the exercise price
of the Right. The exercise price is the Purchase Price multiplied by the number
of Units of Preferred Stock issuable upon exercise of a Right prior to the
events described in this paragraph. Notwithstanding any of the foregoing,
following the occurrence of any of the events set forth in this paragraph, all
Rights that are, or (under certain circumstances specified in the Rights
Agreement) were, beneficially owned by any Acquiring Person will be null and
void.
In the event that, at any time following the Stock Acquisition
Date, (i) the Company is acquired in a merger or other business combination
transaction and the Company is not the surviving corporation (other than a
merger described in the preceding paragraph), (ii) any Person consolidates or
merges with the Company and all or part of the Company Common Stock is converted
or exchanged for securities, cash or property of any other Person or (iii) 50%
or more of the Company's assets or earning power is sold or transferred, each
holder of a Right (except Rights which previously have been voided as described
above) shall thereafter have the right to receive, upon exercise, common stock
of the Acquiring Person having a value equal to two times the exercise price of
the Right.
The Purchase Price payable, and the number of Units of
Preferred Stock issuable, upon exercise of the Rights are subject to adjustment
from time to time to prevent dilution (i) in the event of a stock dividend on,
or a subdivision, combination or reclassification of, the Preferred Stock, (ii)
if holders of the Preferred Stock are granted certain rights or warrants to
subscribe for Preferred Stock or convertible securities at less than the current
market price of the Preferred Stock, or (iii) upon the distribution to the
holders of the Preferred Stock of evidences of indebtedness or assets (excluding
regular quarterly cash dividends) or of subscription rights or warrants (other
than those referred to above).
4
With certain exceptions, no adjustment in the Purchase Price
will be required until cumulative adjustments amount to at least 1% of the
Purchase Price. The Company is not required to issue fractional Units. In lieu
thereof, an adjustment in cash may be made based on the market price of the
Preferred Stock prior to the date of exercise.
At any time until ten days following the Stock Acquisition
Date, a majority of the Company's Board of Directors may redeem the Rights in
whole, but not in part, at a price of $0.01 per Right (the "Redemption Price"),
payable, at the election of such majority of the Board, in cash or shares of
Company Common Stock. Immediately upon the action of a majority of the Company's
Board of Directors ordering the redemption of the Rights, the Rights will
terminate and the only right of the holders of Rights will be to receive the
Redemption Price.
The Board of Directors, at its option, may exchange each Right
for (i) one Unit of Preferred Stock or (ii) such number of Units of Preferred
Stock as will equal (x) the difference between the aggregate market price of the
number of Units of Preferred Stock to be received upon a Section 11(a)(ii) Event
and the Purchase Price divided by (y) the market price per Unit of Preferred
Stock upon the Section 11(a)(ii) Event.
Until a Right is exercised, the holder thereof, as such, will
have no rights as a stockholder of the Company, including, without limitation,
the right to vote or to receive dividends. While the distribution of the Rights
will not be taxable to stockholders or to the Company, stockholders may,
depending upon the circumstances, recognize taxable income in the event that the
Rights become exercisable for Units of Preferred Stock (or other consideration).
Any of the provisions of the Rights Agreement may be amended
at any time prior to the Distribution Date. After the Distribution Date, the
provisions of the Rights Agreement may be amended in order to cure any
ambiguity, defect or inconsistency, to make changes which do not adversely
affect the interests of holders of Rights (excluding the interests of any
Acquiring Person), or to shorten or lengthen any time period under the Rights
Agreement; provided, however, that no amendment to adjust the time period
governing redemption shall be made at such time as the Rights are not
redeemable.
A total of 100,000 shares of Preferred Stock will be reserved
for issuance upon exercise of the Rights. The Units of Preferred Stock that may
be acquired upon exercise of the Rights will be nonredeemable and subordinate to
any other shares of preferred stock that may be issued by the Company.
5
Each Unit of Preferred Stock will have a minimum preferential
quarterly dividend rate of $0.01 per Unit but will, in any event, be entitled to
a dividend equal to the per share dividend declared on the Company Common Stock.
In the event of liquidation, the holder of a Unit of Preferred
Stock will receive a preferred liquidation payment equal to the greater of per
Unit and the per share amount paid in respect of a share of Company Common
Stock.
Each Unit of Preferred Stock will have one vote, voting
together with the Company Common Stock. The holders of Units of Preferred Stock,
voting as a separate class, shall be entitled to elect two directors if
dividends on the Preferred Stock are in arrears for six fiscal quarters.
In the event of any merger, consolidation or other transaction
in which shares of Company Common Stock are exchanged, each Unit of Preferred
Stock will be entitled to receive the per share amount paid in respect of each
share of Company Common Stock.
The rights of holders of the Preferred Stock to dividends,
liquidation and voting, and in the event of mergers and consolidations, are
protected by customary antidilution provisions.
Because of the nature of the Preferred Stock's dividend,
liquidation and voting rights, the economic value of one Unit of Preferred Stock
that may be acquired upon the exercise of each Right should approximate the
economic value of one share of Company Common Stock.
The Rights may have certain anti-takeover effects. The Rights
will cause substantial dilution to a person or group that attempts to acquire
the Company on terms not approved by a majority of the Company's Board of
Directors unless the offer is conditioned on a substantial number of Rights
being acquired. However, the Rights should not interfere with any merger or
other business combination approved by a majority of the Company's Board of
Directors because the Rights may be redeemed by the Company at $0.01 per Right
at any time on or prior to the tenth day following the Stock Acquisition Date.
Thus, the Rights are intended to encourage persons who may seek to acquire
control of the Company to initiate such an acquisition through negotiations with
the Board of Directors. However, the effect of the Rights may be to discourage a
third party from making a partial tender offer or otherwise attempting to obtain
a substantial equity position in the equity securities of, or seeking to obtain
control of, the Company. To the extent any potential acquirors are deterred by
the Rights, the Rights may have the effect of preserving incumbent management in
office.
6
The Rights Agreement between the Company and the Rights Agent
specifying the terms of the Rights, which includes as Exhibit A the Form of
Rights Certificate, is attached hereto as Exhibit 4.7 and is incorporated herein
by reference. The foregoing description of the Rights does not purport to be
complete and is qualified in its entirety by reference to such Exhibit 4.7.
Amendment of By-Laws
On November 12, 1998, the Company's Board of Directors
approved certain amendments to the Company's By-Laws related to (i) the advance
notice requirements for stockholder proposals to be brought before meetings of
stockholders and (ii) fixing the minimum and maximum number of directors on the
Company's Board of Directors.
A copy of the Amended and Restated By-Laws of the Company is
attached hereto as Exhibit 3.3 and is incorporated herein by reference. The
foregoing description of the changes to the Company's Amended and Restated
By-Laws does not purport to be complete and is qualified in its entirety by
reference to the Amended and Restated By-Laws attached hereto as Exhibit 3.3.
Item 7. Financial Statements and Exhibits
Exhibit 3.3 Amended and Restated By-Laws.
Exhibit 4.7 Form of Rights Agreement dated as of November 12,
1998, between BE Aerospace, Inc. and BankBoston,
N.A., including Form of Rights Certificate as Exhibit
A, Summary of Rights to Purchase Preferred Stock as
Exhibit B and the Form of Certificate of Designation
for the Preferred Stock as Exhibit C.
Exhibit 99 Press Release dated November 12, 1998.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned, thereto duly authorized.
BE AEROSPACE, INC.
By /s/ Thomas McCaffrey
-------------------------------
Name: Thomas McCaffrey
Title: Chief Financial Officer
Date: November 18, 1998
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EXHIBIT INDEX
Exhibit
No. Description
--- -----------
3.3 Amended and Restated By-Laws
4.7 Form of Rights Agreement dated as of
November 12, 1998, between BE Aerospace,
Inc. and BankBoston, N.A., including Form of
Rights Certificate as Exhibit A, Summary of
Rights to Purchase Preferred Stock as Exhibit B
and Form of Certificate of Designation for the
Preferred Stock as Exhibit C.
99 Form of Press Release dated
November 12, 1998.