As filed with the Securities and Exchange Commission on April 4, 2003.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AVIALL, INC.
(Exact name of registrant as specified in its charter)
2750 REGENT BOULEVARD
DFW AIRPORT, TEXAS 75261
(972) 586-1000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
DELAWARE 65-0433083
(State of incorporation) (I.R.S. Employer Identification Number)
NON-QUALIFIED STOCK OPTION AGREEMENT
(Full title of the plan)
JEFFREY J. MURPHY
SENIOR VICE PRESIDENT, LAW AND HUMAN RESOURCES,
SECRETARY AND GENERAL COUNSEL
AVIALL, INC.
2750 REGENT BOULEVARD
DFW AIRPORT, TEXAS 75261
(972) 586-1000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
WITH A COPY TO:
JAMES E. O'BANNON
JONES DAY
2727 N. HARWOOD STREET
DALLAS, TEXAS 75201
(214) 220-3939
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to to be Price per Offering Registration
be Registered Registered(2) Share(3) Price(3) Fee(3)
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Common Stock, par value $0.01 per share (1) .......... 500,000 shares $7.3125 $3,656,250 $296
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(1) Each share of common stock, par value $0.01 per share ("Common Stock"), of
Aviall, Inc. (the "Company") is accompanied by one preferred share purchase
right as set forth in the Rights Agreement, dated as of December 7, 1993,
as amended, between the Company and EquiServe Trust Company, N.A. (as
successor to The First National Bank of Boston).
(2) Represents shares of Common Stock issuable upon exercise of options granted
under the Non-Qualified Stock Option Agreement (the "Agreement"). Pursuant
to Rule 416 under the Securities Act of 1933, as amended, there are also
registered such indeterminate number of shares of Common Stock as may be
issued under the Agreement to prevent dilution resulting from stock splits,
stock dividends or similar transactions.
(3) Computed in accordance with Rule 457(h)(1).
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
EXPLANATORY NOTE
This Registration Statement on Form S-8 (this "Registration Statement")
relates to the Non-Qualified Stock Option Agreement, dated as of December 21,
1999, and amended as of December 21, 2001, between Aviall, Inc. (the "Company")
and Paul E. Fulchino (the "Agreement"). The information called for by Part I of
this Registration Statement is included in the description of the Agreement to
be delivered to the person purchasing shares under the Agreement. Pursuant to
the Note to Part I of Form S-8, this information is not being filed with or
included in this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents (or, as applicable, the portions thereof
specified below), which have been filed by the Company with the Securities and
Exchange Commission (the "Commission"), are incorporated by reference, as of
their respective dates, into this Registration Statement:
o the Company's Annual Report on Form 10-K for the year ended
December 31, 2002;
o the Company's Current Report on Form 8-K dated January 8, 2003
and filed with the Commission on January 9, 2003;
o the Company's Current Report on Form 8-K dated February 3,
2003 and filed with the Commission on February 4, 2003; and
o the description of the Company's capital stock appearing under
the heading "Description of Capital Stock" contained in the
Company's Registration Statement on Form 10 (Commission File
No. 001-12380), filed with the Commission on September 24,
1993 and amended on November 4, 1993, November 19, 1993,
November 30, 1993, December 22, 1993 and May 30, 2002.
In addition, all documents hereafter filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended, prior to the filing of a post-effective amendment which indicates that
all securities offered hereby have been sold or which deregisters all such
securities then remaining unsold shall be deemed to be incorporated by reference
in this Registration Statement and to be a part hereof from the date of filing
of such documents.
Any statement contained herein or in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any subsequently filed document which also is
or is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("Delaware Law")
permits indemnification of the directors and officers of the Company involved in
a civil or criminal action, suit or proceeding, including, under
certain circumstances, suits by or in the right of the Company, for any
expenses, including attorney's fees, and (except in the case of suits by or in
the right of the Company), any liabilities which they may have incurred in
consequences of such action, suit or proceeding under conditions stated in
Section 145.
Article XI ("Article XI") of the Company's Restated Certificate of
Incorporation (the "Certificate") limits the personal liability of the Company's
directors to the Company or its stockholders for monetary damages for breach of
fiduciary duty. In addition, Article VI ("Article VI") of the Company's Amended
and Restated By-Laws (the "By-Laws") defines and clarifies the rights of certain
individuals, including the Company's directors and officers, to indemnification
by the Company against personal liability or expenses incurred by them as a
result of certain litigation against them.
Set forth below is a description of Article XI and Article VI. Such
descriptions are intended as summaries only and are qualified in their entirety
by reference to the Certificate and the By-Laws, copies of which have been filed
as exhibits to this Registration Statement.
Article XI protects the directors against personal liability for
breaches of the duty of care. Such Article absolves directors of liability for
negligence in the performance of their duties, including gross negligence.
Directors remain liable for breaches of the duty of loyalty to the Company and
its stockholders as well as for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law and transactions
from which a director derived improper personal benefit. In addition, Article XI
does not absolve directors of liability for unlawful dividends or stock
repurchases or redemptions to which a negligence standard presently applies
under Delaware Law. Also, there may be certain liabilities, such as those under
the federal securities laws or other state or federal laws, which a court may
hold are unaffected by Article XI.
Although Article XI provides the directors with protections against
personal liability for monetary damages for breaches of the duty of care, it
does not eliminate the directors' duty of care. Accordingly, Article XI would
have no effect on the availability of equitable remedies such as an injunction
to prevent a proposed action or rescission of a contract based upon a director's
breach of the duty of care. Although both directors and officers of the Company
are covered by indemnification provisions under Article VI (see below), Article
XI limits liability only with respect to a person acting in the capacity of a
director.
Article VI provides that each person who was or is made a party to, or
is involved in any action, suit or proceeding by reason of the fact that he or
she is or was a director, officer or employee of the Company (or was serving at
the request of the Company as a director, officer or employee of another entity,
including service with respect to employee benefit plans maintained or sponsored
by the Company) will be indemnified and held harmless by the Company, to the
fullest extent authorized by Delaware Law, as currently in effect (or, to the
extent indemnification is broadened, as it may be amended) against all expense,
liability or loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts to be paid in settlement) reasonably incurred by
such person in connection therewith. Article VI provides that the rights
conferred therein are contract rights and include the right to be paid by the
Company for the expenses incurred in defending the proceedings specified above,
in advance of their final disposition, except that, if Delaware Law so requires,
such payment will only be made upon delivery to the Company by the indemnified
party of an undertaking to repay all amounts so advanced if it is ultimately
determined that the person receiving such payments is not entitled to be
indemnified under the By-Laws or otherwise. Article VI provides that the Company
may, by action of its Board of Directors, provide indemnification to its agents
with the same scope and effect as the foregoing indemnification of directors,
officers and employees.
Article VI provides that persons indemnified thereunder may bring suit
against the Company to recover unpaid amounts claimed thereunder, and that if
such suit is successful, the expense of bringing such a suit will be reimbursed
by the Company. Article VI further provides that while it is a defense to such a
suit that the person claiming indemnification has not met the applicable
standards of conduct making indemnification permissible under Delaware Law, the
burden of proving the defense will be on the Company and neither the failure of
the Company's Board to have made a determination that indemnification is proper,
nor an actual determination by the Company's Board that the claimant has not met
the applicable standard of conduct, will be a defense to the action or create a
presumption that the claimant has not met the applicable standard of conduct.
2
Article VI provides that the rights to indemnification and the payment
of expenses incurred in defending a proceeding in advance of its final
disposition conferred therein will not be exclusive of any other right which any
person may have or acquire under any statute, provision of the Certificate of
Incorporation or the By-Laws, or otherwise. Article VI also provides that the
Company may maintain insurance, at its expense, to protect itself and any of its
directors, officers, employees or agents against any expense, liability or loss,
whether or not the Company would have the power to indemnify such person against
such expense, liability or loss under Delaware Law.
ITEM 8. EXHIBITS.
The following is a list of all exhibits filed as part of this
Registration Statement, including those incorporated by reference.
4.1 -- Restated Certificate of Incorporation of Aviall, Inc.
(incorporated by reference to Exhibit 3.1 to Aviall,
Inc.'s Annual Report on Form 10-K for the fiscal year
ended December 31, 1993, Commission File No.
001-12380 (the "1993 Form 10-K"))
4.2 -- Amended and Restated By-Laws of Aviall, Inc.
(incorporated by reference to Exhibit 3.1 to Aviall,
Inc.'s Quarterly Report on Form 10-Q for the period
ended March 31, 1999)
4.3 -- Amended and Restated Certificate of Designations of
Series D Senior Convertible Participating Preferred
Stock, par value $0.01 per share, of Aviall, Inc.
(incorporated by reference to Exhibit 4.1 to Aviall,
Inc.'s Annual Report on Form 10-K for the fiscal year
ended December 31, 2001 (the "2001 Form 10-K"))
4.4 -- Rights Agreement, dated as of December 7, 1993,
between Aviall, Inc. and The First National Bank of
Boston (incorporated by reference to Exhibit 10.7 to
the 1993 Form 10-K)
4.5 -- Amendment No. 1 to Rights Agreement, dated as of
March 14, 2000 between Aviall, Inc. and BankBoston,
N.A. (as successor to The First National Bank of
Boston) (incorporated by reference to Exhibit 4.3 to
Aviall, Inc.'s Annual Report on Form 10-K for the
fiscal year ended December 31, 1999 (the "1999 Form
10-K")
4.6 -- Amendment No. 2 to Rights Agreement, dated as of
December 17, 2001, between Aviall, Inc. and EquiServe
Trust Company, N.A. (as successor to The First
National Bank of Boston) (incorporated by reference
to Exhibit 4.6 to the 2001 Form 10-K)
4.7 -- Amendment No. 3 to Rights Agreement, dated as of
December 21, 2001, between Aviall, Inc. and EquiServe
Trust Company, N.A. (as successor to The First
National Bank of Boston) (incorporated by reference
to Exhibit 4.7 to the 2001 Form 10-K)
5.1 -- Opinion of Jones Day
23.1 -- Consent of Jones Day (included in Exhibit 5.1 to this
Registration Statement)
23.2 -- Consent of PricewaterhouseCoopers LLP
24.1 -- Power of Attorney of the Directors of Aviall, Inc.
99.1 -- Non-Qualified Stock Option Agreement, dated December
21, 1999, between Aviall, Inc. and Paul E. Fulchino
(incorporated by reference to Exhibit 10.17 to the
1999 Form 10-K)
99.2 -- Addendum to Non-Qualified Stock Option Agreement,
dated as of December 21, 2001, between Aviall, Inc.
and Paul E. Fulchino (incorporated by reference to
Exhibit 10.24 to the 2001 Form 10-K)
3
ITEM 9. UNDERTAKINGS.
A. The Company hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of this Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
Registration Statement; and
(iii) to include any material information with
respect to the plan of distribution not previously disclosed
in this Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the Company pursuant to Section
13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement;
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
B. The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in this Registration Statement shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer, or controlling person of
the Company in the successful defense of any action, suit or proceeding) is
asserted by such director, officer, or controlling person in connection with the
securities being registered, the Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of DFW Airport, State of Texas, on this 4th day of
April, 2003.
AVIALL, INC.
By: /s/ JEFFREY J. MURPHY
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Jeffrey J. Murphy
Senior Vice President, Law and Human
Resources, Secretary and General Counsel
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on this 4th day of April, 2003.
SIGNATURE TITLE
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/s/ PAUL E. FULCHINO Chairman, President and Chief Executive Officer
--------------------------------------------------- (Principal Executive Officer)
Paul E. Fulchino
/s/ COLIN M. COHEN Vice President and Chief Financial Officer
--------------------------------------------------- (Principal Financial Officer)
Colin M. Cohen
/s/ JACQUELINE K. COLLIER Vice President and Controller
--------------------------------------------------- (Principal Accounting Officer)
Jacqueline K. Collier
* Director
---------------------------------------------------
Peter J. Clare
* Director
---------------------------------------------------
Allan M. Holt
* Director
---------------------------------------------------
Alberto F. Fernandez
* Director
---------------------------------------------------
Donald R. Muzyka
* Director
---------------------------------------------------
Richard J. Schnieders
* Director
---------------------------------------------------
Jonathan M. Schofield
* Director
---------------------------------------------------
Arthur E. Wegner
* Director
---------------------------------------------------
Bruce N. Whitman
* Jeffrey J. Murphy, by signing his name hereto, does sign and execute this
Registration Statement pursuant to the Power of Attorney executed by the
above-named officers and directors of the registrant and contemporaneously
filed herewith with the Securities and Exchange Commission.
/s/ JEFFREY J. MURPHY
-----------------------------------------
Jeffrey J. Murphy,
Attorney-in-Fact
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INDEX TO EXHIBITS
Exhibit No. Exhibit
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4.1 -- Restated Certificate of Incorporation of Aviall, Inc.
(incorporated by reference to Exhibit 3.1 to Aviall, Inc.'s
Annual Report on Form 10-K for the fiscal year ended December
31, 1993, Commission File No. 001-12380 (the "1993 Form
10-K"))
4.2 -- Amended and Restated By-Laws of Aviall, Inc. (incorporated by
reference to Exhibit 3.1 to Aviall, Inc.'s Quarterly Report on
Form 10-Q for the period ended March 31, 1999)
4.3 -- Amended and Restated Certificate of Designations of Series D
Senior Convertible Participating Preferred Stock, par value
$0.01 per share, of Aviall, Inc. (incorporated by reference to
Exhibit 4.1 to Aviall, Inc.'s Annual Report on Form 10-K for
the fiscal year ended December 31, 2001 (the "2001 Form
10-K"))
4.4 -- Rights Agreement, dated as of December 7, 1993 between Aviall,
Inc. and The First National Bank of Boston (incorporated by
reference to Exhibit 10.7 to the 1993 Form 10-K)
4.5 -- Amendment No. 1 to Rights Agreement, dated as of March 14,
2002, between Aviall, Inc. and BankBoston, N.A. (as successor
to The First National Bank of Boston) (incorporated by
reference to Exhibit 4.3 to Aviall, Inc.'s Annual Report on
Form 10-K for the fiscal year ended December 31, 1999 (the
"1999 Form 10-K"))
4.6 -- Amendment No. 2 to Rights Agreement, dated as of December 17,
2001, between Aviall, Inc. and EquiServe Trust Company, N.A.
(as successor to The First National Bank of Boston)
(incorporated by reference to Exhibit 4.6 to the 2001 Form
10-K)
4.7 -- Amendment No. 3 to Rights Agreement, dated as of December 21,
2001, between Aviall, Inc. and EquiServe Trust Company, N.A.
(as successor to The First National Bank of Boston)
(incorporated by reference to Exhibit 4.7 to the 2001 Form
10-K)
5.1 -- Opinion of Jones Day
23.1 -- Consent of Jones Day (included in Exhibit 5.1 to this
Registration Statement)
23.2 -- Consent of PricewaterhouseCoopers LLP
24.1 -- Power of Attorney of Directors of Aviall, Inc.
99.1 -- Non-Qualified Stock Option Agreement, dated December 21, 1999,
between Aviall, Inc. and Paul E. Fulchino (incorporated by
reference to Exhibit 10.17 to the 1999 Form 10-K)
99.2 -- Addendum to Non-Qualified Stock Option Agreement, dated as of
December 21, 2001, between Aviall, Inc. and Paul E. Fulchino
(incorporated by reference to Exhibit 10.24 to the 2001 Form
10-K)
6