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EXHIBIT 4.4
IRREVOCABLE POWER OF ATTORNEY AND CUSTODY AGREEMENT
---------------------
As Attorney-in-Fact
c/o BE Aerospace, Inc.
0000 Xxxxxxxxx Xxxxxx Xxx
Xxxxxxxxxx, Xxxxxxx 00000
BE Aerospace, Inc.
As Custodian
0000 Xxxxxxxxx Xxxxxx Xxx
Xxxxxxxxxx, Xxxxxxx 00000
Dear Sirs or Mesdames:
The undersigned and certain other persons listed in Appendix A
hereto (the undersigned and such other persons being hereinafter collectively
called the "Selling Shareholders") and BE Aerospace, Inc., a Delaware
corporation (the "Company"), contemplate selling issued and outstanding shares
of the Company's Common Stock, par value $.01 per share ("Common Stock") (which
shares will be acquired by the Selling Shareholders through the exercise of
options ("Options") to purchase shares of Common Stock), to certain underwriters
(the "Underwriters"), pursuant to the Underwriting Agreement referred to below,
in connection with a registered public offering of the Company's Common Stock
including the shares of Common Stock ("Shares") to be issued upon exercise of
the Options (the "Offering"). The undersigned also understands that the Company
has filed with the Securities and Exchange Commission (the "Commission") a
Registration Statement on Form S-3 (the "Registration Statement") (File No.
333-16235) to register the shares of Common Stock to be sold by the Company and
the Shares to be sold by Selling Shareholders in the Offering under the
Securities Act of 1933, as amended (the "Securities Act").
The undersigned, by executing and delivering this Irrevocable
Power of Attorney and Custody Agreement (the "Agreement"), confirms the
undersigned's willingness (i) to deposit with the Company, acting in its
capacity as Custodian hereunder (the "Custodian"), Options exercisable into not
less than the number of Shares set forth next to the undersigned's name on
Appendix A and (ii) upon exercise of the Options (or such lesser number of
Options, as determined by the Attorney-in-Fact in accordance herewith) into
Shares, to sell the Shares to the Underwriters, all as hereinafter provided.
The undersigned hereby acknowledges receipt of (i) a draft of
an underwriting agreement dated December 5, 1996 (the "Underwriting Agreement"),
among the Company, the Selling Shareholders (acting by their Attorney-in-Fact)
and the Underwriters relating to the Offering of Common Stock to be purchased by
the Underwriters from the Company and
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the Selling Shareholders, and (ii) a conformed copy (without exhibits) of the
original Registration Statement and all amendments thereto through the date of
execution hereof. The undersigned understands that the Underwriting Agreement is
subject to revisions before execution, with such changes as the Attorney-in-Fact
referred to below deems appropriate (including with respect to the number of
Shares to be sold), and that the Registration Statement has not yet become
effective under the Securities Act and is subject to amendment.
To induce the Underwriters to enter into the Underwriting
Agreement with the Company and the Selling Shareholders and to secure their
performance, the undersigned agrees, for the benefit of the other Selling
Shareholders, the Underwriters and the Company, as follows:
(1) Appointment of Attorney-in-Fact, Grant of Authority. For
purposes of effecting the exercise of the Options, payment of the
exercise price (the "Exercise Price") therefor, receipt of the Shares
and the sale of the Shares pursuant to the Underwriting Agreement, the
undersigned hereby irrevocably makes, constitutes and appoints
______________ the true and lawful agent and attorney-in-fact of the
undersigned (the "Attorney-in-Fact"), with full power and authority
(except as provided below) to act hereunder, individually,
collectively, or through a duly appointed successor attorney-in-fact,
in his sole discretion (it being understood and agreed that the
Attorney-in-Fact may duly appoint his successor attorney-in-fact and
delegate to him or her any and all of his powers hereunder), all as
hereinafter provided, in the name of and for and on behalf of the
undersigned, as fully as could the undersigned if present and acting in
person, with respect to all matters in connection with the execution
and delivery of the Underwriting Agreement and the registration and
sale of the Shares in the Offering including, but not limited to, the
power and authority to:
(a) authorize and direct the Custodian and any other
person or entity to take any and all actions as may be
necessary or deemed to be advisable by the Attorney-in-Fact to
effect the exercise of the Options, payment of the Exercise
Price therefor and receipt of the Shares at any time following
the execution of the Underwriting Agreement by or on behalf of
the Selling Shareholders [and prior to the business day
preceding the Option Closing Date (as defined in the
Underwriting Agreement)] and the sale, transfer and
disposition of the Shares in, and in connection with, the
Offering (including without limitation to determine the number
of Shares of the undersigned to be sold (which may differ from
the amount set forth in the drafts of the Registration
Statement and Underwriting Agreement reviewed by the
undersigned) and the price at which such Shares will be sold
to the Underwriters), on such terms and conditions, except as
set forth below, as the Attorney-in-Fact may, in his sole
discretion, determine;
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(b) execute and deliver the Underwriting Agreement,
substantially in the form of the draft dated December 5, 1996
with such changes therein as the Attorney-in-Fact, in his sole
discretion, except as set forth below, may determine, the
execution and delivery of such Underwriting Agreement by the
Attorney-in-Fact to be conclusive evidence with respect to his
approval thereof, and carry out and comply with each and all
of the provisions of the Underwriting Agreement;
(c) arrange for, prepare or cause to be prepared an
amendment or amendments to the Registration Statement and take
all actions as may be necessary or deemed to be desirable with
respect to the Registration Statement, including, without
limitation, the execution, acknowledgment and delivery of all
such certificates, reports, assurances, documents, letters and
consents, as may be necessary or deemed to be desirable in
connection therewith, and execute, acknowledge and deliver any
and all certificates, assurances, reports, documents, letters
and consents to the Commission, appropriate authorities of
states or other jurisdictions, the Underwriters or legal
counsel, which may be required or appropriate in connection
with the registration of the Shares under the Securities Act
or the securities or blue sky laws of the various states and
jurisdictions or to facilitate sales of the Shares including,
but not limited to (i) a request for acceleration of the
effective date of the Registration Statement and (ii) any
representations to the Commission necessary to facilitate
effectiveness of the Registration Statement;
(d) retain legal counsel, as appropriate, in
connection with any and all matters referred to herein (which
counsel may, but need not, be counsel for the Company) to
represent the Selling Shareholders in connection with the
transactions referred to in the Underwriting Agreement and
this Agreement;
(e) agree with the Company and the other Selling
Shareholders upon the allocation of the expenses of the
Offering, and upon the mutual indemnification of the Company,
the Underwriters and the Selling Shareholders, including the
undersigned and the Attorney-in-Fact as set forth in the
Underwriting Agreement, this Agreement or in any other
agreement or instrument;
(f) endorse (in blank or otherwise) on behalf of the
undersigned (i) the certificates for the Options necessary to
exercise the Options and receive the Shares upon exercise
thereof and payment of the Exercise Price with respect
thereto, (ii) the certificates for Shares to be sold by the
undersigned to the Underwriters, and (iii) any stock power or
stock powers attached to such certificates; and
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(g) take or cause to be taken any and all further
actions, and execute and deliver, or cause to be executed and
delivered, any and all such agreements (including, but not
limited to, the Underwriting Agreement and any and all
documents, instruments and certificates as may be necessary or
deemed to be advisable in connection therewith), instruments,
documents, certificates and share powers, with such changes as
the Attorney-in-Fact may, in his sole discretion, approve
(such approval to be evidenced by his signature thereof) as
may be necessary or deemed to be desirable by the Attorney-in-
Fact to effectuate, implement and otherwise carry out the
transactions contemplated by the Underwriting Agreement and
this Agreement, or as may be necessary or deemed to be
desirable in connection with the registration of the Shares
pursuant to the Securities Act or the sale of the Shares to
the Underwriters.
(2) Irrevocability. The undersigned has conferred and granted
the power of attorney and all other authority contained herein in
consideration of the Company's, the other Selling Shareholders' and the
Underwriters' proceeding with, and for the purpose of completing, the
transactions contemplated by the Underwriting Agreement. Therefore, the
undersigned hereby agrees that all power and authority hereby conferred
is coupled with an interest and is irrevocable; and to the fullest
extent not prohibited by law shall not be terminated by any act of the
undersigned or by operation of law or by the occurrence of any event
whatsoever, including without limitation, the death, incapacity,
dissolution, liquidation, termination, bankruptcy, dissolution of
marital relationship or insolvency of the undersigned or any similar
event. If, after the execution of this Agreement, any such event shall
occur before the completion of the transactions contemplated by the
Underwriting Agreement and this Agreement, the Attorney-in-Fact and the
Custodian are nevertheless authorized and directed to complete all of
such transactions, including the exercise of the Options, payment of
the Exercise Price therefor and receipt of the Shares in consideration
thereof and the delivery and sale of the certificates for the Shares to
be sold to the Underwriters, as if such event had not occurred and
regardless of notice thereof.
(3) Deposit and Delivery of Shares. The undersigned hereby
appoints the Company as Custodian to hold the Shares, the Options and,
upon execution of the Underwriting Agreement by the Selling
Shareholders, to exercise the Options, pay the Exercise Price therefor,
and to dispose of the Shares in accordance with the instructions of the
Attorney-in-Fact and as set forth herein, with full power in the name
of, and for and on behalf of, the undersigned.
(a) If stock certificates with respect to the Shares
or Options are in the undersigned's possession, the
undersigned hereby agrees to deliver
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herewith and deposit such certificates with the Custodian,
together with an irrevocable stock power duly executed in
blank.
(b) If any Options or Shares are to be delivered to
the Custodian by someone other than the undersigned, the
undersigned hereby agrees to deliver to and deposit with the
Custodian an irrevocable stock power duly executed in blank.
(c) The undersigned authorizes and directs the
Custodian to deliver to the Underwriters such Shares as may be
designated in written instructions from the Attorney-in-Fact
and to deliver, or cause to be delivered, certificates
representing such Shares to the Underwriters on the Option
Closing Date referred to in the Underwriting Agreement against
receipt of payment (payable to the Custodian) therefor.
(d) The undersigned hereby authorizes and directs the
Attorney-in-Fact and the Custodian to issue appropriate
receipts to the Underwriters, for the full amount of net
proceeds, in the name of the undersigned as payee.
(e) It is understood that the Company and the
Underwriters may determine that it is not practicable to sell
all of such Shares in the Offering. The undersigned authorizes
each Attorney-in-Fact to exercise a number of Options equal to
the number of the undersigned's Shares that the Company and
the Underwriters determine is practicable to sell in the
Offering. In the event that the Company and the Underwriters
determine that it is not practicable to sell in the Offering
all shares issuable upon the exercise of the Options, the
Options will be exercised pro rata (based upon the aggregate
number of Shares listed on Appendix A). Unexercised Options,
if any, will be returned to the undersigned.
(4) The Custodian. The Custodian's execution of this Agreement
shall constitute the acceptance by the Custodian of the agency herein
conferred, and shall evidence its agreement to carry out and perform
its duties under this Agreement in accordance with the provisions
hereof, subject, however, to the following terms and conditions, which
all parties hereto agree shall govern and control the rights, duties
and immunities of the Custodian:
(a) The Custodian shall have no duties except those
expressly set forth herein and shall not be liable except for
commission of gross negligence or willful misconduct in the
performance of such duties of the Custodian as are
specifically set out herein. The Custodian shall not be
responsible for the performance of the powers of attorney
contained herein by any party hereto,
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or for the interpretation of any of the provisions of such
powers of attorney, or for the failure or inability of any
other party hereto, or anyone else, to deliver moneys or
certificates for Shares, Options or other property to it or
otherwise to honor any provision hereof.
(b) If a controversy arises between two or more of
the parties hereto, or between any of the parties hereto and
any person not a party hereto, as to whether or not or to whom
the Custodian shall deliver the certificates for the Shares,
Options or any funds held by it, or as to any other matter
arising out of or relating hereto or to the property held by
it hereunder, the Custodian shall not be required to determine
the same and need not make any delivery of the property or any
portion thereof but may retain it until the rights of the
parties to the dispute shall have finally been determined by
agreement or by final order of a court of competent
jurisdiction, provided, however, that the time for appeal for
any such final order shall have expired without an appeal
having been made. The Custodian shall deliver the property or
any portion thereof within 15 days after it has received
written notice of any such agreement or final order
(accompanied by an affidavit that the time for appeal has
expired without an appeal having been made). The Custodian
shall be entitled to assume that no such controversy has
arisen unless it has received a written notice that such a
controversy has arisen which refers specifically to this
Agreement and identifies by name and address the adverse
claimants to the controversy.
(c) The Custodian will acknowledge in writing receipt
by physical delivery of any certificates representing any
Shares or Options when such certificates are received.
(5) Representations, Warranties and Agreements. The
undersigned represents warrants and agrees that:
(a) All authorizations and consents, including, but
not limited to, any releases necessary for the execution,
delivery and performance by the undersigned of this Agreement
and for the exercise of the Options, payment of the Exercise
Price therefor and receipt of the Shares in consideration
thereof and the sale and delivery of the Shares to the
Underwriters have been obtained and are in full force and
effect, and the undersigned has full right, power and
authority to enter into and perform the Underwriting Agreement
and this Agreement and to sell, transfer and deliver the
Shares to the Underwriters. This Agreement, upon execution and
delivery by the undersigned, and the Underwriting Agreement,
upon execution and delivery by the undersigned or on behalf of
the undersigned by the Attorney-in-Fact, will constitute valid
and
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binding agreements of the undersigned in accordance with their
respective terms.
(b) The undersigned has read the draft of the
Underwriting Agreement referred to above and understands the
same, and agrees that the representations and warranties
ascribed to the undersigned as set forth in Section 2 of the
Underwriting Agreement are incorporated by reference herein,
are true and correct on the date hereof and will be true and
correct on the Option Closing Date with respect to the
Offering, and authorizes the Attorney-in-Fact, acting on
behalf of the undersigned, to confirm the truth and accuracy
of such representations and warranties in connection with the
consummation or implementation of the transactions
contemplated by the Underwriting Agreement and this Agreement.
The undersigned acknowledges that the representations,
warranties and obligations made or undertaken by the
undersigned herein shall survive the conclusion of the
Offering and are in addition to, and not in limitation of, the
representations, warranties and obligations made or
undertaken, or to be made or undertaken, on the part of the
undersigned in the Underwriting Agreement, as the same may be
executed, delivered and amended.
(c) The undersigned has not taken and will not take,
directly or indirectly, any action intended to constitute or
which has constituted, or which might reasonably be expected
to cause or result in, stabilization or manipulation of the
price of the Common Stock, and, to assure compliance with Rule
10b-6 under the Securities Exchange Act of 1934, the
undersigned will not make bids for or purchases of, or induce
bids for or purchases of, directly or indirectly, any shares
of Common Stock until the distribution of all Shares being
sold in the public Offering has been completed; the
undersigned has not and will not distribute any prospectus or
other Offering material in connection with the Offering and
sale of the Shares other than the then current prospectus
filed with the Commission or other material permitted by the
Securities Act.
(d) The foregoing representations, warranties and
agreements are for the benefit of and may be relied upon by
the Attorney-in-Fact, the Company, the other Selling
Shareholders, the Underwriters and their respective legal
counsel. The undersigned agrees that the representations,
warranties and agreements herein contained shall also be true
and correct and in full force and effect on the effective date
of the Registration Statement and the Option Closing Date
referred to in the Underwriting Agreement. The undersigned
will immediately notify the Attorney-in-Fact and the Company
of any default under or breach of this Agreement (or of any
event which, with
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notice or the lapse of time or both, would constitute such a
default or breach), and in the event any representation or
warranty contained herein shall not be true or correct;
provided, however, that nothing contained herein shall in any
way affect the obligations of the undersigned hereunder and
under the Underwriting Agreement to maintain such
representations and warranties as true and correct and in full
force and effect through the Option Closing Date.
(e) The undersigned acknowledges that the success of
the Offering is largely dependent upon factors not within the
Company's control, such as participation and cooperation by
other Selling Shareholders, market conditions, Securities and
Exchange Commission and Blue Sky matters, and other factors
within the discretion of the Underwriters. It is therefore
understood that the Company and the Underwriters shall not be
obligated to complete the Offering, except under such
circumstances as the Company and the Underwriters deem
appropriate and desirable, and neither the Company nor the
Underwriters shall be liable to the undersigned for any
failure to complete the Offering. It is further understood
that the Underwriters shall not be obligated to exercise the
option granted to them under Section 4 of the Underwriting
Agreement, and neither the Company nor the Underwriters shall
be liable to the undersigned for any failure to exercise such
option. This Agreement will terminate in the event that the
Option Closing Date does not occur on or prior to January 21,
1997 unless this Agreement is extended by the parties hereto
in writing.
(6) Payment. The undersigned hereby authorizes and directs the
Attorney-in-Fact to take such action as may be required to provide for
the distribution to the undersigned of the proceeds of the Offering
(net of the Exercise Price with respect to any exercised Options and
the reserve for undersigned's share of expenses of the Offering as
described below) owing to the undersigned in connection therewith, such
payment to be made in immediately available funds or such other manner
as the Attorney-in-Fact shall determine.
Before remitting any proceeds of the sale of the Shares to the
undersigned, the Attorney-in-Fact is authorized and empowered to
reserve from the proceeds allocable to the undersigned in respect of
Shares sold by the undersigned an amount determined by the
Attorney-in-Fact to be sufficient to pay the undersigned's share of all
expenses of the Selling Shareholders. The Selling Shareholders'
expenses shall include those items of expense set forth in Section 9(a)
of the Underwriting Agreement and such other expenses as the
Attorney-in-Fact deem reasonable, and the Attorney-in-Fact is
authorized to pay such expenses from the amount reserved for such
purpose. After payment of any such expenses from the reserve, the
Attorney-in-Fact will prepare a written itemization of the expenses and
remit to the undersigned his proportionate
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share of the balance, as well as the itemization. To the extent
expenses exceed the amount reserved, the Selling Shareholder shall
remain liable for such expenses.
(7) Ownership. Subject to the terms hereof, until payment of
the purchase price for the Shares being sold by the undersigned
pursuant to the Underwriting Agreement has been made by or for the
account of the Underwriters, the undersigned shall remain the owner of
the Options and the Shares and shall have all rights thereto, including
the right to receive all dividends and distributions thereon, which are
not inconsistent with this Agreement. However, until such payment in
full has been made or until the Underwriting Agreement has been
terminated, the undersigned agrees that the undersigned will not give,
sell, pledge, hypothecate, grant any lien on or security interest in,
transfer, deal with or contract with respect to the Options or the
Shares or any interest therein, except to the Underwriters pursuant to
the Underwriting Agreement.
(8) Release. The undersigned hereby agrees to release the
Attorney-in-Fact and the Custodian from any and all liabilities, joint
or several, to which they may become subject insofar as such
liabilities (or action in respect thereof) arise out of or are based
upon any action taken or omitted to be taken by the Attorney-in-Fact or
the Custodian pursuant hereto, except if such liabilities shall result
from the bad faith of the Attorney-in-Fact or the Custodian. This
paragraph shall survive termination of this Agreement.
(9) Termination. If the Underwriting Agreement shall not be
entered into on behalf of the undersigned, or if it shall not become
effective pursuant to its terms, or if it shall be terminated pursuant
to its terms, or if the Shares agreed to be sold as contemplated by the
Underwriting Agreement are not purchased and paid for by the
Underwriters on or before January 21, 1997, then after such date the
undersigned shall have the power, on written notice to the
Attorney-in-Fact and the Custodian, to terminate this Agreement,
subject, however, (i) to Section (8) hereof, (ii) to the payment of all
expenses incurred by or on behalf of the undersigned, and (iii) to all
lawful action of the Attorney-in-Fact and the Custodian done or
performed pursuant hereto prior to actual receipt of such notice, and
thereafter the Attorney-in-Fact and the Custodian shall have no further
responsibilities or liabilities to the undersigned except to redeliver
to the undersigned the Shares held in custody by book entry or
otherwise.
(10) Notices. Any notice required to be given pursuant to this
Agreement shall be deemed given if in writing and delivered in person,
or if given by telephone or telegraph if subsequently confirmed by
letter, (i) to _______________ as Attorney-in-Fact, c/o BE Aerospace,
Inc., 0000 Xxxxxxxxx Xxxxxx Xxx, Xxxxxxxxxx, Xxxxxxx 00000 (ii) BE
Aerospace, Inc., as Custodian, 0000 Xxxxxxxxx Xxxxxx Xxx, Xxxxxxxxxx,
Xxxxxxx 00000 or to such other address as the Custodian shall have
specified in a
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written notice duly given to the undersigned, or (iii) to the
undersigned at the address set forth in the Company's records.
(11) Applicable Law. The validity, enforceability,
interpretation, and construction of this Agreement shall be determined
in accordance with the substantive laws of the state of New York, and
this Agreement shall inure to the benefit of, and shall be binding
upon, the undersigned and the undersigned's heirs, executors,
administrators, successors and assigns, as the case may be.
(12) Counterparts. This Agreement may be signed in any number
of counterparts, each executed counterpart constituting an original but
all together constituting only one instrument.
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This Irrevocable Power of Attorney and Custody Agreement shall
be effective as of __________________, ___ 1996.
Very truly yours,
Name:
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(signature)
When signing as an officer of
a corporation, partner of a
partnership, trustee of a
trust, guardian of a minor
child, or Custodian under the
Uniform Gift to Minors Act,
please indicate title as such
and provide documentation
evidence of the authority of
person signing.
For certificates held by joint
tenants or as community
property, all named holders
must sign.
Notarization required for individuals only:
STATE OF
COUNTY OF
Before me, a notary public, personally appeared the above
named _________________, who acknowledged that he did sign the foregoing
instrument, and that the same is his free act and deed.
In testimony whereof, I have hereunto affixed my name and
official seal at ________________ ______ this __ day of _____________________,
1996.
-------------------------------
Notary Public
[Seal]
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___________________________ hereby accepts the appointment as
Attorney-in-Fact pursuant to the foregoing Irrevocable Power of Attorney and
Custody Agreement, and agrees to abide by and act in accordance with the terms
of said agreement.
Dated: ________________ ___, 1996
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BE Aerospace, Inc. hereby agrees to act as Custodian pursuant
to the foregoing Irrevocable Power of Attorney and Custody Agreement, and agrees
to abide by and act in accordance with the terms of said agreement.
Dated: _________________ ___, 1996
BE AEROSPACE, INC.
By:
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APPENDIX A
Number of
Shares
Selling Shareholders To Be Sold
Xxxxxx X. Xxxxxxxxxx................................................................ 35,000
PAP Stock Trust..................................................................... 10,000
PLP Stock Trust..................................................................... 10,000
LP Stock Trust...................................................................... 10,000
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Total ..................................................................... 65,000
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