As filed with the Securities and Exchange Commission on November 10, 1998.
Registration No. 333-51479
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
POST-EFFECTIVE AMENDMENT NO. 2 ON
FORM S-3
TO FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
AVIATION SALES COMPANY
(Exact name of registrant as specified in its charter)
Delaware 65-0665658
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6905 N.W. 25th Street
Miami, Florida 33122
(305) 592-4055
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(Address, including zip code, and telephone
number, including area code, of
registrant's principal executive offices)
--------------------
Dale S. Baker,
Chairman, President and Chief Executive Officer
6905 N.W. 25th Street
Miami, Florida 33122
(305) 592-4055
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(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Copies of all communications to:
Philip B. Schwartz, Esq.
Akerman, Senterfitt & Eidson, P.A.
One S.E. 3rd Avenue, 28th Floor
Miami, Florida 33131-1704
(305) 374-5600
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
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If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
EXPLANATORY NOTE
The designation of this Post-Effective Amendment as Registration No.
333-51479-2 denotes that this is the second Post-Effective Amendment to the Form
S-4 filed by Aviation Sales Company, a Delaware corporation (the "Company" or
the "Registrant"). This Amendment relates to certain shares of the Registrant's
common stock (the "Common Stock") exchanged by former holders of the common
stock of Whitehall Corporation ("Whitehall"), in connection with the merger of a
wholly-owned subsidiary of the Registrant with and into Whitehall. All filing
fees payable in connection with the registration of these securities were
previously paid in connection with the filing of the Registrant's registration
statement on Form S-4 (File No. 333-51479).
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
PRELIMINARY PROSPECTUS
Subject to Completion, dated November 10, 1998
976,859 SHARES
AVIATION SALES COMPANY
COMMON STOCK, PAR VALUE $.001 PER SHARE
This Prospectus relates to an aggregate of 976,859 shares (the
"Shares") of Common Stock, par value $.001 per share (the "Common Stock"), of
Aviation Sales Company, a Delaware corporation (the "Company"), being sold by
certain stockholders (the "Selling Stockholders") who have acquired such shares
in connection with the merger (the "Merger") of a wholly-owned subsidiary of the
Company with and into Whitehall Corporation. The Shares are being registered
under the Securities Act of 1933, as amended (the "Securities Act"), on behalf
of the Selling Stockholders in order to permit public sale or other distribution
of the Shares. The Company is contractually obligated to register the Shares on
behalf of the Selling Stockholders.
The Shares may be sold or distributed from time to time by or for the
account of the Selling Stockholders or their pledgees through underwriters or
dealers, through brokers or other agents, or directly or indirectly to one or
more purchasers including pledgees, at market prices prevailing at the time of
sale or at prices otherwise negotiated. This Prospectus may also be used, with
the Company's prior written consent, by donees of the Selling Stockholders, or
other persons acquiring the Shares and who wish to offer and sell such Shares
under circumstances requiring or making desirable its use. The Company will
receive no portion of the proceeds from the sale of the Shares offered hereby
and will bear certain expenses incident to this registration. See "Selling
Stockholders" and "Plan of Distribution."
The Common Stock of the Company is listed on the New York Stock
Exchange (the "NYSE") under the trading symbol "AVS." The last reported sales
price of the Common Stock of the Company on the NYSE on November 2, 1998 was
$34 1/8 per share.
PROSPECTIVE INVESTORS SHOULD CAREFULLY CONSIDER THE MATTERS SET FORTH
UNDER THE CAPTION "RISK FACTORS" BEGINNING ON PAGE 5 OF THIS PROSPECTUS.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is November __, 1998
<PAGE>
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS IN
CONNECTION WITH THE OFFER CONTAINED IN THIS PROSPECTUS, AND IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR THE SELLING STOCKHOLDERS. NEITHER THE DELIVERY OF
THIS PROSPECTUS NOR ANY SALE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE
THE DATE HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY THE SECURITIES OFFERED HEREBY BY ANYONE IN ANY
JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH
THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO
ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
TABLE OF CONTENTS
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PAGE
AVAILABLE INFORMATION.........................................................3
THE COMPANY...................................................................4
RISK FACTORS..................................................................8
USE OF PROCEEDS..............................................................13
SELLING STOCKHOLDERS.........................................................13
PLAN OF DISTRIBUTION.........................................................14
DESCRIPTION OF CAPITAL STOCK.................................................16
LEGAL MATTERS................................................................19
EXPERTS......................................................................19
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE............................20
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports and other information with the Securities
and Exchange Commission (the "Commission"). These reports, proxy and information
statements and other information filed by the Company with the Commission
pursuant to the informational requirements of the Exchange Act may be inspected
and copied at the public reference facilities maintained by the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549 and at the following Regional
Offices of the Commission: New York Regional Office, Seven World Trade Center,
Room 1400, New York, New York 10048; and Chicago Regional Office, Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60604. Copies of
such material may be obtained from the public reference section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. The Commission also maintains a site on the World Wide Web at
http://www.sec.gov that contains reports, proxy and other information regarding
registrants that file electronically with the Commission. The Common Stock is
traded on the NYSE. Information filed by the Company with the NYSE may be
inspected at the offices of the NYSE at 20 Broad Street, New York, New York
10005.
Contemporaneously herewith, the Company has filed with the Commission a
Registration Statement on Form S-3 under the Securities Act with respect to the
Shares offered hereby (including all amendments and supplements thereto, the
"Registration Statement"). This Prospectus, which forms part of the Registration
Statement, does not contain all of the information set forth in the Registration
Statement, certain parts of which have been omitted in accordance with the rules
and regulations of the Commission. Statements contained herein concerning the
provisions of certain documents are not necessarily complete and, in each
instance, reference is made to the copy of such document filed as an exhibit to
the Registration Statement or otherwise filed with the Commission. Each such
statement is qualified in its entirety by such reference. The Registration
Statement and the exhibits thereto can be inspected and copied at the public
reference facilities and regional offices of the Commission and at the offices
of the NYSE referred to above.
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THE COMPANY
GENERAL
Aviation Sales Company ("the Company") is a leading provider of fully
integrated aviation inventory services and a recognized worldwide leader in the
redistribution of aircraft spare parts. The Company sells aircraft spare parts
and provides inventory and repair services to major commercial passenger
airlines, air cargo carriers, maintenance and repair facilities and other
redistributors throughout the world. Parts sold by the Company include rotable
and expendable airframe and engine components for commercial airplanes,
including Boeing, McDonnell Douglas, Lockheed and Airbus aircraft and Pratt &
Whitney, General Electric and Rolls Royce jet engines. Inventory management
services offered by the Company include purchasing services, repair management,
warehouse management, aircraft disassembly services, and consignment and leasing
of inventories of aircraft parts and engines. The Company also manufactures
certain aircraft parts for sale to original equipment manufacturers ("OEMs"),
including precision engine parts, and provides maintenance, repair and overhaul
services ("MR&O") at its Federal Aviation Administration ("FAA") licensed repair
facilities.
The Company's principal executive offices are located at 6905 N.W. 25th
Street, Miami, Florida 33122, and the telephone number is (305) 592-4055.
RECENT DEVELOPMENTS
ACQUISITION OF TIMCO. On September 22, 1998 the Company, through a
wholly-owned subsidiary, acquired Triad International Maintenance Corporation, a
Delaware corporation ("TIMCO"), pursuant to a stock purchase agreement (the
"TIMCO Purchase Agreement"). Pursuant to the TIMCO Purchase Agreement, the
Company purchased all of the outstanding common stock of TIMCO for a purchase
price of $70.0 million in cash. The acquisition was financed from the Company's
bank lines of credit (see below). Additionally, as part of the transaction, the
Company agreed to guaranty certain industrial revenue bond financing incurred in
connection with the development of TIMCO's Greensboro operating facilities, in
the approximate amount of $11.4 million. Further, at the closing, the seller was
obligated to remit approximately $8.0 million to TIMCO as a closing adjustment.
TIMCO, based in Greensboro, North Carolina, operates an FAA licensed aircraft
repair station specializing in the MR&O of narrowbody and widebody aircraft.
AMENDMENT TO CREDIT FACILITY. On September 18, 1998, the Company
entered into an agreement with several financial institutions amending its
existing credit facility pursuant to the terms of an Amendment No. 2 and Consent
to Third Amended and Restated Credit Facility dated as of October 17, 1997 (the
"Amendment to Credit Facility Agreement"). Under the terms of the Amendment to
Credit Facility Agreement, the Company's existing credit facility was amended to
provide the Company with a $200.0 million revolving loan and letter of credit
facility, subject to an availability calculation based on an eligible borrowing
base (the "Amended Credit Facility"). The eligible borrowing base includes
certain receivables and inventories of the Company, including the receivables
and inventory of TIMCO. The letter of credit portion of the Amended Credit
Facility is subject to a $30.0 million sublimit.
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The interest rate on the Amended Credit Facility is, at the option of
the Company, (a) prime plus a margin, or (b) LIBOR plus a margin, where the
respective margin determination is made upon the Company's financial performance
over a 12 month period (ranging from 0.0% to 1.0% in the event prime is
utilized, or 1.125% to 2.5% in the event LIBOR is utilized). The Amended Credit
Facility terminates on July 31, 2002. The Amended Credit Facility contains
financial and other covenants and mandatory prepayment events. The Amended
Credit Facility is secured by a lien on substantially all of the assets of the
Company, including the assets of TIMCO. At October 26, 1998, $141.9 million was
outstanding under the Amended Credit Facility.
ACQUISITION OF WHITEHALL. On July 31, 1998, the Company completed the
acquisition by merger of Whitehall Corporation, a Delaware corporation
("Whitehall") and its wholly-owned subsidiaries for approximately $121 million
in Common Stock. In connection with the Merger, each outstanding share of
Whitehall common stock was exchanged for .5143 of a share of Common Stock. In
addition, upon the closing of the Merger, outstanding options to purchase shares
of Whitehall common stock (the "Whitehall Options") were converted into a right
to purchase that number of shares of the Common Stock as the holder would have
been entitled to receive had they exercised such options prior to the Merger and
participated in the Merger. Accordingly, pursuant to the Merger, the Company
issued 2,844,079 shares of Common Stock in exchange for all the outstanding
common stock of Whitehall and will issue up to 257,150 shares of Common Stock
upon the exercise of the former Whitehall Options.
As a result of the Merger, Whitehall and its subsidiaries are
wholly-owned subsidiaries of the Company. Whitehall, through its subsidiaries,
operates two FAA licensed repair stations specializing in the MR&O of narrowbody
aircraft and focuses primarily on established traditional commercial carriers
and new entrant low-cost air carriers.
MAINTENANCE, REPAIR AND OVERHAUL BUSINESS. Beginning in 1997, in
connection with its continuing efforts to position itself for the future, the
Company made a strategic decision to expand its services to include the MR&O of
aircraft. Through acquisitions, including its recent acquisitions of Whitehall
and TIMCO, the Company provides fully integrated MR&O services for commercial,
military and freighter aircraft, including the MR&O of airframe components,
hydraulic, pneumatic, electrical and electromagnetic aircraft components, and
interior cabin components. All of the Company's heavy maintenance and
modification operations are being presently consolidated under the TIMCO
umbrella to better service the Company's airline customers.
The Company believes that the total worldwide market for MR&O services
is approximately $27 billion annually and that $5.3 billion of that amount
represents commercial airframe heavy maintenance and modification services being
provided in North America. Approximately 65% of the North American services are
currently being performed by airlines themselves, with the remaining demand
being outsourced to independent providers such as the Company. As the commercial
airline industry continues to operate under intense competition and federal
budgetary constraints force reductions in military spending, the Company
believes that both the private and military sectors will increasingly view
outsourcing as a logical and effective way to reduce operating cost.
The principal commercial maintenance and repair services performed by
the Company's MR&O operations are scheduled "C" and "D" level maintenance
checks. Each involves a different degree of inspection and the services
performed at each level vary depending upon the individual
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aircraft operator's FAA-certified maintenance program. "C" and "D" level checks
are comprehensive checks and usually take several weeks to complete, depending
upon the scope of the work to be performed.
The "C" level check is an intermediate level service inspection that
typically includes a thorough cleaning of the aircraft's exterior, testing and
lubrication of its operational systems, filter servicing and limited cleaning
and servicing of the interior. Trained mechanics perform a visual inspection of
the external structure and internal structure through access panels. The "D"
level check includes all of the work accomplished in the "C" level check but
places a more detailed emphasis on the integrity of the systems and structural
functions. In the "D" level check, the aircraft is disassembled to the point
where the entire structure can be inspected and evaluated. Once the evaluation
and repairs are completed, the aircraft and its systems are reassembled to the
detailed tolerances demanded in each system's specifications. Depending upon the
type of aircraft and the FAA-certified maintenance program being followed,
intervals between "C" level checks can range from 1,000 to 5,000 flight hours
and intervals between "D" level checks can range from 10,000 to 25,000 flight
hours. Structural inspections performed during "C" level and "D" level checks
provide personnel with detailed information about the condition of the aircraft
and the need to perform additional work or repairs not provided for in the
original work scope. Project coordinators and customer support personnel work
closely with the aircraft's customer service representative in evaluating the
scope of any additional work required and in the preparation of a detailed cost
estimate for the labor and materials required to complete the job.
Each aircraft certified by the FAA is constructed under a "Type
Certificate." Anything which is done subsequently to overhaul or modify the
aircraft from its original specifications requires the review, flight-testing
and approval of the FAA which is evidenced by the issuance of a Supplemental
Type Certificate ("STC") for that particular change. Typical modification
services include refurbishing and reconfiguring passenger seating, installing
passenger amenities such as telephones and video screens and converting
traditional passenger cabins into amenity filled "VIP" quarters.
The process of converting a passenger plane to freighter configuration
entails completely stripping the interior; strengthening the load-bearing
capacity of the flooring; installing the bulkhead or cargo net; cutting into the
fuselage for the installation of a cargo door; reinforcing the surrounding
structures for the new door; replacing windows with metal plugs; and fabricating
and installing the cargo door itself. The aircraft interior may also need to be
lined to protect cabin walls from pallet damage and the air conditioning system
may have to be modified. Conversion contracts also typically require "C" or "D"
level maintenance checks as these converted aircraft have often been out of
service for some time and maintenance is required for the aircraft to comply
with current FAA standards. Additional overhaul and modification services
performed include cockpit reconfiguration and the integration of Traffic Control
and Avoidance Systems ("TCAS"), windshear detection systems and navigational
aids.
RULE 144A DEBT OFFERING AND EXCHANGE OFFER. On February 17, 1998, the
Company sold $165 million of senior subordinated notes ("the Old Notes") due in
2008 with a coupon rate of 8.125% at a price of 99.395%. Proceeds were used to
repay senior debt and to fund the cash requirements relating to the Company's
acquisition of Caribe Aviation, Inc. and its subsidiary, Aircraft Interior
Design, Inc.
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On August 3, 1998, the Company completed the exchange of $165.0 million
of its fully registered Senior Subordinated Notes due 2008 (the "New Notes") for
all of its previously outstanding $165.0 million of Old Notes. The terms of the
New Notes and the Old Notes are substantially identical in all material
respects, except for certain transfer restrictions and registration rights, and
except that the holders of the Old Notes were entitled to receive liquidated
damages under certain circumstances (and the holders of the New Notes are not
entitled to receive such damages).
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RISK FACTORS
AN INVESTMENT IN THE SHARES OF COMMON STOCK OFFERED HEREBY INVOLVES A
HIGH DEGREE OF RISK. PROSPECTIVE INVESTORS SHOULD CONSIDER CAREFULLY THE
FOLLOWING RISK FACTORS, AS WELL AS THE OTHER INFORMATION SET FORTH IN THE
PROSPECTUS, IN CONNECTION WITH AN INVESTMENT IN THE COMMON STOCK OFFERED HEREBY.
This Prospectus contains certain forward-looking statements or
statements which may be deemed or construed to be forward-looking statements
within the meaning of the Federal Private Securities Litigation Reform Act of
1995 with respect to the financial condition, management's discussion and
analysis of financial condition and results of operations, business of the
Company and risk factors. The words "estimate," "project," "intend," "expect"
and similar expressions are intended to identify forward-looking statements.
These forward-looking statements involve and are subject to known and unknown
risks, uncertainties and other factors which could cause the Company's actual
results, performance (financial or operating) or achievements to differ from the
future results, performance (financial or operating), achievements expressed or
implied by such forward-looking statements. Investors are cautioned not to place
undue reliance on these forward-looking statements, which speak only as of the
date hereof. The Company undertakes no obligation to publicly release any
revisions to these forward-looking statements to reflect events or circumstances
after the date hereof or to reflect the occurrence of unanticipated events.
EFFECTS OF THE ECONOMY ON THE COMPANY'S BUSINESS
Since the Company's customers consist of airlines, maintenance and
repair facilities that service airlines and other aircraft spare parts
redistributors, as well as original equipment manufacturers, the Company's
business is impacted by the economic factors which affect the airline industry.
When such factors adversely affect the airline industry, they tend to reduce the
overall demand for aircraft spare parts, repair services and MR&O services,
causing downward pressure on pricing and increasing the credit risk associated
with doing business with airlines. Additionally, factors such as the price of
fuel affect the aircraft spare parts market, since older aircraft (into which
aircraft spare parts are most often placed) and for which MR&O services are most
often provided become less viable as the price of fuel increases. There can be
no assurance that economic and other factors which may affect the airline
industry will not have an adverse impact on the Company's business, financial
condition or results of operations.
SIGNIFICANT LEVERAGE
The Company has significant outstanding indebtedness and is
significantly leveraged. As of October 26, 1998, the Company had outstanding
indebtedness of approximately $330.1 million, of which approximately $141.9
million is indebtedness under its Amended Credit Facility and $164.0 million of
which are the New Notes (the "Notes") (aggregate principal amount issued of
$165.0 million). As of October 26, 1998, the Company had availability under the
Amended Credit Facility of approximately $42.9 million. The Amended Credit
Facility is secured by substantially all of the assets of the Company. Subject
to certain limitations in the documents governing its indebtedness, the Company
will likely be able to incur significant additional amounts of secured and
unsecured indebtedness. The Company's ability to make payments of principal and
interest on, or to refinance
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its indebtedness (including the Notes), depends on its future operating
performance, which to a certain extent is subject to economic, financial,
competitive and other factors beyond its control. The degree to which the
Company is leveraged could have important consequences to holders of the Common
Stock, including (i) the Company's vulnerability to adverse general economic and
industry conditions, (ii) the Company's ability to obtain additional financing
for future working capital expenditures, general corporate purposes or other
purposes and (iii) the dedication of a substantial portion of the Company's cash
flow from operations to the payment of principal and interest on indebtedness,
thereby reducing the funds available for operations and future business
opportunities. The Company's debt service requirement for 1998 is approximately
$20.0 million.
FUNDING REQUIREMENTS
During the fiscal years ended December 31, 1996 and 1997, and during
the nine months ended September 30, 1998, the Company has largely relied upon
significant borrowings under its Amended Credit Facility, and sales of its
securities, including the Notes, to satisfy its funding requirements relating to
the growth of its business.
RESTRICTIONS IMPOSED BY LENDERS
The instruments governing the indebtedness of the Company impose
significant operating and financial restrictions on the Company. Such
restrictions will affect, and in many respects, significantly limit or prohibit,
among other things, the ability of the Company to incur additional indebtedness,
pay dividends, repay indebtedness prior to its stated maturity, sell assets or
engage in mergers or acquisitions. These restrictions could also limit the
ability of the Company to effect future financings, make needed capital
expenditures, withstand a future downturn in the business or the economy, or
otherwise conduct necessary corporate activities.
FLUCTUATIONS IN OPERATING RESULTS
The Company's operating results are affected by many factors, including
the timing of orders from large customers, the timing of expenditures to
purchase inventory in anticipation of future sales, the timing of bulk inventory
purchases, the number of airline customers seeking repair services at any time,
the Company's ability to fully utilize its hangar space from period to period,
the timeliness of customer aircraft in arriving for scheduled maintenance and
the mix of available aircraft spare parts contained, at any time, in the
Company's inventory. A large portion of the Company's operating expenses are
relatively fixed. Since the Company typically does not obtain long-term purchase
orders or commitments from its customers, it must anticipate the future volume
of orders based upon the historic requirements of its customers and upon its
discussions with its customers as to their future requirements. Cancellations,
reductions or delays in orders by a customer or group of customers could have a
material adverse effect on the Company's business, financial condition or
results of operations.
RISKS REGARDING THE COMPANY'S SPARE PARTS INVENTORY
The Company's inventory consists principally of new, overhauled,
serviceable and repairable aircraft parts that are purchased from many sources.
Before parts may be installed in an aircraft, they must meet certain standards
of condition established by the FAA and/or the equivalent regulatory
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agencies in other countries. Specific regulations vary from country to
country, although regulatory requirements in other countries generally coincide
with FAA requirements. Parts must also be traceable to sources deemed acceptable
by such agencies. Parts owned or acquired by the Company may not meet applicable
standards or standards may change in the future, causing parts which are already
contained in the Company's inventory to be scrapped or modified. Aircraft
manufacturers may also develop new parts to be used in lieu of parts already
contained in the Company's inventory. In all such cases, to the extent that the
Company has such parts in its inventory, their value may be reduced.
GOVERNMENT REGULATION
The aviation industry is highly regulated in the United States by the
FAA and in other countries by similar agencies. While the Company's spare parts
business is not regulated, the aircraft spare parts which it sells to its
customers must be accompanied by documentation which enables the customer to
comply with applicable regulatory requirements. Additionally, the Company must
be certified by the FAA and, in some cases, by original equipment manufacturers,
in order to manufacture or repair aircraft components. Although the Company
believes that its newly acquired manufacturing and repair operations are in
material compliance with applicable regulations, there can be no assurance of
this fact. Further, there can be no assurance that new and more stringent
government regulations will not be adopted in the future or that any such new
regulations, if enacted, would not have a material adverse effect on the
Company's business, financial condition or results of operations.
GROWTH STRATEGY AND RISKS RELATING TO FUTURE ACQUISITIONS
A key element of the strategy of the Company involves growth through
the acquisition of additional inventories of aircraft spare parts and the
acquisition of other companies, assets or product lines that would complement or
expand the Company's existing business. The Company's ability to grow by
acquisition is dependent upon, and may be limited by, the availability of
suitable aircraft parts inventories, acquisition candidates and capital, and by
restrictions contained in the Company's credit agreements. In addition,
acquisitions involve risks that could adversely affect the Company's operating
results, including the assimilation of the operations and personnel of acquired
companies, the potential amortization of acquired intangible assets and the
potential loss of key employees of acquired companies. There can be no assurance
that the Company will be able to consummate acquisitions on satisfactory terms.
RELIANCE ON EXECUTIVE OFFICERS AND KEY EMPLOYEES
The continued success of the Company is dependent to a significant
degree upon the services of its executive officers and upon the Company's
ability to attract and retain qualified personnel experienced in the various
phases of the Company's business. The Company has employment agreements with
certain of its executive officers. The employment agreements between the Company
and its executive officers are individually terminable by each executive officer
upon a change of control of the Company. The ability of the Company to operate
successfully could be jeopardized if one or more of its executive officers were
unavailable and capable successors were not found.
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COMPETITION
The markets for the Company's products, repair services and MR&O
services are extremely competitive, and the Company faces competition from a
number of sources. These include aircraft and aircraft part manufacturers,
airline and aircraft service companies, other companies providing MR&O and
repair services, and aircraft spare parts redistributors. Certain competitors of
the Company have substantially greater financial and other resources than the
Company. There can be no assurance that competitive pressures will not
materially and adversely affect the Company's business, financial condition or
results of operations.
PRODUCT LIABILITY
The business of the Company exposes it to possible claims for personal
injury or death which may result from the failure of an aircraft spare part
sold, manufactured or repaired by it. While the Company maintains what it
believes to be adequate liability insurance to protect it from such claims, and
while no material claims have, to date, been made against the Company, no
assurance can be given that claims will not arise in the future or that such
insurance coverage will be adequate. Additionally, there can be no assurance
that insurance coverages can be maintained in the future at an acceptable cost.
Any such liability not covered by insurance could have a material adverse effect
on the Company's business, financial condition or results of operations.
POTENTIAL INFLUENCE BY CERTAIN STOCKHOLDERS
As of November 6, 1998, one of the Company's stockholders beneficially
owns approximately 19% of the outstanding Common Stock and the Company's
directors and executive officers, as a group, beneficially own an aggregate of
approximately 34% (including the 19% referred to above) of the outstanding
Common Stock. While each of these stockholders is an independent party, if these
parties were to act together as a group, they would have the ability to exercise
substantial influence on the election of all of the members of the Company's
Board of Directors and, therefore, to exercise substantial influence on the
business, policies and affairs of the Company.
DIVIDEND POLICY
The Company does not anticipate paying dividends on its Common Stock in
the foreseeable future.
PRICE VOLATILITY
The market price of the Common Stock could be subject to significant
fluctuations in response to variations in quarterly operating results and other
factors. From time to time in recent years, the securities markets have
experienced significant price and volume fluctuations that have often been
unrelated or disproportionate to the operating performance of particular
companies. These broad fluctuations may adversely affect the market price of the
Common Stock.
11
<PAGE>
ANTI-TAKEOVER PROVISIONS
The Company's Certificate of Incorporation and Bylaws contain
provisions that may have the effect of discouraging certain transactions
involving an actual or threatened change of control of the Company. In addition,
the Board of Directors of the Company has the authority to issue up to 1,000,000
shares of preferred stock in one or more series and to fix the preferences,
rights and limitations of any such series without stockholder approval. The
ability to issue preferred stock could have the effect of discouraging
unsolicited acquisition proposals or making it more difficult for a third party
to gain control of the Company, or otherwise could adversely affect the market
price of the Common Stock.
POSSIBLE DEPRESSING EFFECT OF FUTURE SALES OF COMMON STOCK.
Future sales of the Shares, or the perception that such sales could
occur, could adversely affect the market price of the Common Stock. There can be
no assurance as to when, and how many of, the Shares will be sold and the effect
such sales may have on the market price of the Common Stock. In addition, the
Company may issue Common Stock in connection with possible future acquisitions
or in other transactions. Such securities may be subject to resale restrictions
in accordance with the Securities Act and the regulations promulgated thereunder
or by contract. As such restrictions lapse or if such shares are registered for
sale to the public, such securities may be sold to the public. In the event of
the issuance and subsequent resale of a substantial number of shares of the
Common Stock, or a perception that such sales could occur, there could be a
material adverse effect on the prevailing market price of the Common Stock.
12
<PAGE>
USE OF PROCEEDS
This Prospectus relates to the Shares being offered and sold for the
account of the Selling Stockholders. This Prospectus also may be used, with the
Company's prior written consent, by donees of the Selling Stockholders, or by
other persons acquiring Shares who wish to offer and sell such Shares under
circumstances requiring or making desirable its use. The Company will not
receive any proceeds from the sale of the Shares but will bear certain expenses
related to the registration of the Shares. See "Plan of Distribution."
SELLING STOCKHOLDERS
The following table sets forth the name of each Selling Stockholder,
the aggregate number of shares of Common Stock beneficially owned by each of the
Selling Stockholders on the date hereof solely as a result in the Merger, the
aggregate number of shares of Common Stock that each Selling Stockholder may
offer and sell pursuant to this Prospectus, and the aggregate number and
percentage of shares of Common Stock that will be beneficially owned by each
Selling Stockholder after completion of this offering (the "Offering"). However,
because the Selling Stockholders may offer all or a portion of the Shares at any
time and from time to time after the date hereof, the exact number of Shares
that each Selling Stockholder may retain upon completion of the Offering cannot
be determined at this time.
To the knowledge of the Company, none of the Selling Stockholders has
had within the past three years any material relationship with the Company
except as set forth in the footnotes to the following table.
<TABLE>
<CAPTION>
NUMBER OF NUMBER OF
SHARES SHARES BEING SHARES
BENEFICIALLY OFFERED FOR BENEFICIALLY PERCENTAGE OF
OWNED PRIOR SELLING OWNED AFTER SHARES OWNED
TO THE STOCKHOLDER'S THE AFTER THE
SELLING STOCKHOLDERS OFFERING ACCOUNT OFFERING(1) OFFERING (1)
- ------------------------------------- ----------------- ------------------- ------------------ -------------------
<S> <C> <C> <C> <C>
Cambridge Capital Fund, L.P.(2)...... 675,995 675,995 -- --
Baker Nye, L.P.(3)................... 297,779 297,779 -- --
John J. McAtee, Jr. (4).............. 5,657 514 5,143 *
Jack S. Parker (5)................... 7,200 2,057 5,143 *
John H. Wilson (6)................... 72,516 514 72,002 *
----------
TOTAL 976,859
==========
</TABLE>
- ----------
* Less than one percent.
(1) Assumes all of the Shares will be sold, that no additional shares will
be acquired and that no shares other than those offered will be sold.
(2) Cambridge Capital Fund, L.P. ("Cambridge Capital") is an investment
limited partnership. George F. Baker, III, one of its managing general
partners, was an officer and a director of Whitehall prior to the
Merger, and is currently a director of the Company. In addition,
Jeffrey N. Greenblatt, a general partner of Cambridge Capital, is also
a director of the Company.
(3) Baker Nye, L.P. ("Baker Nye") is an investment limited partnership.
George F. Baker, III, one of its managing general partners, was an
officer and a director of Whitehall prior to the Merger and is
currently a director of the Company. In addition, Jeffrey N.
Greenblatt, a general partner of Baker Nye, is also a director of the
Company.
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<PAGE>
(4) John J. McAtee, Jr., was a director of Whitehall prior to the Merger.
(5) Jack S. Parker was a director of Whitehall prior to the Merger.
(6) John H. Wilson was an officer and a director of Whitehall prior to the
Merger and is currently a consultant to the Company.
PLAN OF DISTRIBUTION
The Selling Stockholders or pledgees may sell or distribute some or all
of the Shares from time to time through underwriters or dealers or brokers or
other agents or directly to one or more purchasers, including pledgees, in
transactions (which may involve crosses and block transactions) on the NYSE,
privately negotiated transactions (including sales pursuant to pledges), in the
over-the-counter market, or in transactions in which Shares may be delivered in
connection with the issuance of securities by issuers other than the Company
that are exchangeable for (whether optional or mandatory), or payable in such
Shares (whether such securities are listed on a national securities exchange or
otherwise) or pursuant to which such Shares may be distributed (which securities
issued by others will, to the extent required by applicable law, be registered
under the Securities Act), or in a combination of such transactions. Such
transactions may be effected by the Selling Stockholders at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices, at negotiated prices or at fixed prices, which may be changed. Brokers,
dealers, agents or underwriters participating in such transactions as agent may
receive compensation in the form of discounts, concessions or commissions from
the Selling Stockholder (and if they act as agent for the purchaser of such
shares, from such purchaser). Such discounts, concessions or commissions as to a
particular broker, dealer, agent or underwriter might be in excess of those
customary in the type of transaction involved. This Prospectus may be used, with
the Company's prior written consent, by donees of the Selling Stockholders, or
by other persons acquiring Shares and who wish to offer and sell such Shares
under circumstances requiring or making desirable its use.
The Selling Stockholders and any such underwriters, brokers, dealers or
agents or underwriters that participate with the Selling Stockholders in the
distribution of the Shares may be deemed to be "underwriters" within the meaning
of the Securities Act, and any discounts, commissions or concessions received by
any such underwriters, brokers, dealers or agents might be deemed to be
underwriting commissions or discounts under the Securities Act. Neither the
Company nor the Selling Stockholders can presently estimate the amount of such
compensation. The Company knows of no existing arrangements between any Selling
Stockholder and any other Selling Stockholder, underwriter, broker, dealer or
other agent relating to the sale or distribution of the Shares.
Persons engaged in the distribution of the Shares are restricted from
engaging in certain market-making activities with respect to the Common Stock
for a period specified by Regulation M of the Exchange Act.
The Company has agreed to pay all fees and expenses incident to the
registration of the Shares, except commissions and discounts of underwriters,
brokers, dealers or agents and fees and expenses of counsel or any other
professionals or other advisors, if any, to the Selling Stockholders.
14
<PAGE>
Each Selling Stockholder may indemnify any broker, dealer, agent or underwriter
that participates in transactions involving sales of the Shares against certain
liabilities, including liabilities arising under the Securities Act.
If Shares are sold in an underwritten offering, the Shares may be
acquired by the underwriters for their own account and may be further resold
from time to time in one or more transactions, including negotiated
transactions, at market prices prevailing at the time of sale, at prices related
to such prevailing market prices, at negotiated prices, or at fixed prices. The
names of the underwriters with respect to any such offering and the terms of the
transactions, including any underwriting discounts, concessions or commissions
and other items constituting compensation of the underwriters and
broker-dealers, if any, will be set forth in a supplement to this Prospectus
relating to such offering. Any public offering price and any discounts,
concessions or commissions allowed or reallowed or paid to broker-dealers may be
changed from time to time. Unless otherwise set forth in a supplement to this
Prospectus, the obligations of the underwriters to purchase the Shares will be
subject to certain conditions precedent and the underwriters will be obligated
to purchase all of the Shares specified in such supplement if any such Shares
are purchased.
If the Shares are sold in an underwritten offering, the underwriters
and selling group members (if any) may engage in passive market making
transactions in the Common Stock on the NYSE immediately prior to the
commencement of the sale of shares in such offering, in accordance with
Regulation M under the Exchange Act. Passive market making presently consists of
displaying bids on the NYSE limited by the bid prices of market makers not
connected with such offering and purchases limited by such prices and effected
in response to order flow. Net purchases by a passive market maker on each day
are limited in amount to 30% of the passive market maker's average daily trading
volume in the Common Stock during the period of the two full consecutive
calendar months immediately preceding the determination of the offering price
and must be discontinued when such limit is reached. Passive market making may
stabilize the market price of the Common Stock at a level above that which might
otherwise prevail and, if commenced, may be discontinued at any time.
In order to comply with the securities laws of certain states, if
applicable, the Shares will be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states, the
Shares may not be sold unless they have been registered or qualified for sale in
the applicable state or an exemption from the registration or qualification
requirement is available and is complied with by the Company and the Selling
Stockholders.
15
<PAGE>
DESCRIPTION OF CAPITAL STOCK
The Company's authorized capital consists of 30,000,000 shares of
common stock, par value $.001 per share, and 1,000,000 shares of preferred
stock, par value $.01 per share (the "Preferred Stock"). None of the preferred
stock is outstanding.
COMMON STOCK
Each holder of Common Stock is entitled to one vote for each share held
of record on all matters presented to stockholders, including the election of
directors. In the event of a liquidation, dissolution or winding up of the
Company, the holders of Common Stock are entitled to share equally and ratably
in the assets of the Company, if any, remaining after paying all debts and
liabilities of the Company and the liquidation preferences of any outstanding
Preferred Stock. The Common Stock has no preemptive rights or cumulative voting
rights and no redemption, sinking fund or conversion provisions.
Holders of Common Stock are entitled to receive dividends if, as and
when, declared by the Board of Directors out of funds legally available
therefore, subject to the dividend and liquidation rights of any Preferred Stock
that may be issued and outstanding and subject to any dividend restrictions in
the Company's credit facilities. No dividend or other distribution (including
redemptions and repurchases of shares of capital stock) may be made, if after
giving effect to such distribution, the Company would not be able to pay its
debts as they become due in the usual course of business, or if the Company's
total assets would be less than the sum of its total liabilities plus the amount
that would be needed at the time of a liquidation to satisfy the preferential
rights of any holders of Preferred Stock.
PREFERRED STOCK
The Board of Directors is authorized, without further stockholder
action, to divide any or all shares of the authorized Preferred Stock into
series and fix and determine the designations, preferences and relative rights
and qualifications, limitations or restrictions thereon of any series so
established, including voting powers, dividend rights, liquidation preferences,
redemption rights and conversion privileges. As of the date of this Prospectus,
the Board of Directors has not authorized any series of Preferred Stock, and
there are no plans, agreements or understandings for the authorization or
issuance of any shares of Preferred Stock. The issuance of Preferred Stock with
voting rights or conversion rights may adversely affect the voting power of
Common Stock, including the loss of voting control to others. The issuance of
Preferred Stock may have the effect of delaying, deferring or preventing a
change of control of the Company.
CERTAIN PROVISIONS OF THE CERTIFICATE AND BYLAWS
GENERAL. A number of provisions of the Company's Certificate of
Incorporation ("Certificate") and Bylaws ("Bylaws") concern matters of corporate
governance and the rights of stockholders. Certain of these provisions, as well
as the ability of the Board of Directors to issue shares of Preferred Stock and
to set the voting rights, preferences and other terms thereof, may be deemed to
have an anti-takeover effect and may discourage takeover attempts not first
approved by the Board of Directors (including takeovers which certain
stockholders may deem to be in their best
16
<PAGE>
interests). To the extent takeover attempts are discouraged, temporary
fluctuations in the market price of the Common Stock, which may result from
actual or rumored takeover attempts, may be inhibited. These provisions,
together with the classified Board of Directors and the ability of the Board to
issue Preferred Stock without further stockholder action, also could delay or
frustrate the removal of incumbent directors or the assumption of control by
stockholders, even if such removal or assumption would be beneficial to
stockholders of the Company. These provisions also could discourage or make more
difficult a merger, tender offer or proxy contests, even if they could be
favorable to the interests of stockholders, and could potentially depress the
market price of the Common Stock. The Board of Directors believes that these
provisions are appropriate to protect the interest of the Company and all of its
stockholders.
ISSUANCE OF RIGHTS. The Certificate authorized the Board of Directors
to create and issue rights (the "Rights") entitling the holders thereof to
purchase from the Company shares of capital stock or other securities. The times
at which, and the terms upon which, the Rights are to be issued may be
determined by the Board of Directors and set forth in the contracts or
instruments that evidence the Rights. The authority of the Board of Directors
with respect to the Rights includes, but is not limited to, the determination of
(i) the initial purchase price per share of the capital stock or other
securities of the Company to be purchased upon exercise of the Rights, (ii)
provisions relating to the times at which and the circumstances under which the
Rights may be exercised or sold or otherwise transferred, either together with
or separately from, any other securities of the Company, (iii) antidilutive
provisions which adjust the number or exercise price of the Rights or amount or
nature of the securities or other property receivable upon exercise of the
Rights, (iv) provisions which deny the holder of a specified percentage of the
outstanding securities of the Company the right to exercise the Rights and/or
cause the Rights held by such holder to become void, (v) provisions which permit
the Company to redeem the Rights and (vi) the appointment of a rights agent with
respect to the Rights.
MEETINGS OF STOCKHOLDERS. The Bylaws provide that a special meeting of
stockholders may be called only by the Board of Directors unless otherwise
required by law. The Bylaws provide that only those matters set forth in the
notice of the special meeting may be considered or acted upon at that special
meeting, unless otherwise provided by law. In addition, the Bylaws set forth
certain advance notice and informational requirements and time limitations on
any director nomination or any new business which a stockholder wishes to
propose for consideration at an annual meeting of stockholders.
NO STOCKHOLDER ACTION BY WRITTEN CONSENT. The Certificate provides that
any action required or permitted to be taken by the stockholders of the Company
at an annual or special meeting of stockholders must be effected at a duly
called meeting and may not be taken or effected by a written consent of
stockholders in lieu thereof.
AMENDMENT OF THE CERTIFICATE. The Certificate provides that an
amendment thereof must first be approved by a majority of the Board of Directors
and (with certain exceptions) thereafter approved by the holders of a majority
of the total votes eligible to be cast by holders of voting stock with respect
to such amendment or repeal; provided, however, that the affirmative vote of 80%
of the total votes eligible to be cast by holders of voting stock, voting
together as a single class, is required to amend provisions relating to the
establishment of the Board of Directors and amendments to the Certificate.
17
<PAGE>
AMENDMENTS OF BYLAWS. The Certificate provides that the Bylaws may be
amended or repealed by the Board of Directors or by the stockholders. Such
action by the Board of Directors requires the affirmative vote of a majority of
the directors then in office. Such action by the stockholders requires the
affirmative vote of the holders of at least two-thirds of the total votes
eligible to be cast by holders of voting stock with respect to such amendment or
repeal at an annual meeting of stockholders or a special meeting called for such
purposes, unless the Board of Directors recommends that the stockholders approve
such amendment or repeal at such meeting, in which case such amendment or repeal
shall only require the affirmative vote of a majority of the total votes
eligible to be cast by holders of voting stock with respect to such amendment or
repeal.
NEW YORK STOCK EXCHANGE
The Common Stock is traded on the NYSE under the symbol "AVS."
TRANSFER AGENT
The Transfer Agent for the Common Stock is Continental Stock Transfer &
Trust Company, 2 Broadway, New York, New York 10004.
18
<PAGE>
LEGAL MATTERS
Certain legal matters in connection with the Shares being offered
hereby will be passed upon for the Company by Akerman, Senterfitt & Eidson,
P.A., Miami, Florida. Philip B. Schwartz, a shareholder of Akerman, Senterfitt &
Eidson, P.A., is a director of the Company, and certain of the attorneys
employed by Akerman, Senterfitt & Eidson, P.A. beneficially own shares of Common
Stock as of the date of this Prospectus.
EXPERTS
The consolidated financial statements and supplemental consolidated
financial statements of the Company as of December 31, 1997 and 1996, and for
each of the three years in the period ended December 31, 1997, which are
incorporated by reference into this Registration Statement, to the extent and
for the periods indicated in their report, have been audited by Arthur Andersen
LLP, independent certified public accountants, and are included herein in
reliance upon the authority of said firm as experts in giving said report.
The financial statements of Kratz-Wilde Machine Company, which are
incorporated into this Registration Statement by reference, to the extent and
for the periods indicated in their report, have been audited by Clark, Schaefer,
Hackett & Co., independent certified public accountants, and are included herein
in reliance upon the authority of said firm as experts in giving said report.
The consolidated financial statements of Whitehall as of December 31,
1997 and 1996, and the related consolidated statements of income, stockholders'
equity and cash flows for each of the three years in the period ended December
31, 1997, which are incorporated by reference into this Registration Statement,
to the extent and for the periods indicated in their report, have been audited
by Arthur Andersen LLP, independent certified public accountants, and are
included herein in reliance upon the authority of said firm as experts in giving
said report.
19
<PAGE>
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The documents listed in (i) through (x) below are incorporated herein
by reference; and all documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to the date
of this Prospectus and prior to the termination of the offering made hereby,
shall be deemed to be incorporated by reference in this Prospectus and to be a
part hereof from the date of filing of such documents:
(i) Registrant's Annual Report on Form 10-K for the year ended December
31, 1997, as amended;
(ii) Registrant's Current Report on Form 8-K, dated February 12, 1998;
(iii) Registrant's Current Report on Form 8-K, dated March 6, 1998;
(iv) Registrant's Current Report on Form 8-K, dated July 31, 1998;
(v) Registrant's Current Report on Form 8-K, dated August 3, 1998;
(vi) Registrant's Current Report on Form 8-K, dated September 22, 1998;
(vii) Registrant's Current Report on Form 8-K/A, dated July 31, 1998;
(viii) Registrant's Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 1998, as amended;
(ix) Registrant's Quarterly Report on Form 10-Q for the quarterly period
ended June 30, 1998; and
(x) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A12B dated May 23,
1996.
The Company will furnish, without charge, to each person to whom a
Prospectus is delivered, upon written or oral request, a copy of any of the
foregoing documents, in each case other than exhibits thereto (unless such
exhibits are specifically incorporated by reference therein). Requests for any
such documents should be submitted in writing to Aviation Sales Company, 6905
N.W. 25th Street, Miami, Florida 33122, Attention: Corporate Secretary.
20
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is a list of estimated expenses to be incurred by the
Company in connection with the registration of the shares of Common Stock
registered hereunder:
Securities and Exchange Commission registration fee..........(1)
Printing expenses............................................$10,000(2)
Legal fees and expenses......................................$25,000(2)
Accountants' fees and expenses...............................$10,000(2)
Miscellaneous................................................$ 5,000(2)
Total $50,000
- -------------------
(1) Fee previously paid pursuant to Registration Statement on Form S-4 (File
No. 333-51479)
(2) Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Pursuant to the provisions of Section 145(a) of the Delaware General
Corporation Law, the Company has the power to indemnify anyone made or
threatened to be made a party to any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal, administrative, or investigative
(other than an action by or in the right of the Company) because such person is
or was a director or officer of the Company against expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement actually and
reasonably incurred in the defense or settlement of such action, suit, or
proceeding, provided that (i) such person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the Company's best interest and
(ii) in the case of a criminal proceeding such person had no reasonable cause to
believe his conduct was unlawful.
With respect to an action or suit by or in the right of the Company to
procure a judgment in its favor, Section 145(b) of the Delaware General
Corporation Law provides that the Company shall have the power to indemnify
anyone who was, is, or is threatened to be made a party to a threatened,
pending, or completed action or suit brought by or in the right of the Company
to procure a judgment in its favor because such person is or was a director or
officer of the Company against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit, provided that such person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the Company's best interests,
except that no indemnification shall be made in a case in which such person
shall have been adjudged to be liable to the Company unless and only to the
extent that the Court of Chancery or the court in which such action or suit was
brought shall have determined upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses.
II-1
<PAGE>
Indemnification as described above shall only be granted in a specific
case upon a determination that indemnification is proper under the circumstances
using the applicable standard of conduct which is made by (a) a majority of a
quorum of directors who were not parties to such proceeding, (b) independent
legal counsel in a written opinion if such quorum cannot be obtained or if a
quorum of disinterested directors so directs, or (c) the shareholders of the
Company.
Section 145(g) of the Delaware General Corporation Law permits the
purchase and maintenance of insurance to indemnify directors and officers
against any liability asserted against or incurred by them in any such capacity,
whether or not the Company itself would have the power to indemnify any such
director or officer against such liability. The Company has obtained such
insurance and premiums are paid by the Company.
The Certificate of Incorporation of the Company provides for the
indemnification of directors and officers of the Company to the fullest extent
permitted by Section 145 of the Delaware General Corporation Law, as the same
may be amended or supplemented. The Certificate of Incorporation further
provides that the indemnification provided for therein shall not be exclusive of
any rights to which those indemnified may be entitled under any bylaw,
agreement, vote of shareholders or disinterested directors, or otherwise.
The Certificate of Incorporation also contains a provision that
eliminates the personal liability of the Company's directors to the Company or
its shareholders for monetary damages for breach of fiduciary duty as a
director. The provision does not limit a director's liability for (i) breaches
of duty of loyalty to the Company or its shareholders, (ii) acts or omissions
not in good faith, involving intentional misconduct or involving knowing
violations of law, (iii) the payment of unlawful dividends or unlawful stock
repurchases or redemptions under Section 174 of the Delaware General Corporation
Law, or (iv) transactions in which the director received an improper personal
benefit. Depending on judicial interpretation, the provision may not affect
liability for violations of the federal securities laws.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant 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 registrant 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 and will be governed by the final
adjudication of such issue.
II-2
<PAGE>
ITEM 16. EXHIBITS
*4.1 Registrant's Certificate of Incorporation, as amended, filed as
Exhibits 3.1 and 3.2 to Registrant's Registration Statement on Form
S-1, File No. 333-3650, hereby incorporated by reference.
*4.2 Registrant's Bylaws filed as Exhibit 3.3 to Registrant's Registration
Statement on Form S-1, File No. 333-3650, hereby incorporated by
reference.
*5.1 Opinion of Akerman, Senterfitt & Eidson, P.A. as to the validity of
the Shares
*23.1 Consent of Akerman, Senterfitt & Eidson, P.A. (included in Exhibit
5.1)
**23.2 Consent of Arthur Andersen LLP
**23.3 Consent of Arthur Andersen LLP
**23.4 Consent of Clark, Schaefer, Hackett & Co. LLP
**24.1 Powers of Attorney - included as part of the signature page hereto
- --------------------
* Previously filed
** Filed herewith
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant 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 the 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 the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the high or low end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent
no more than a 20% change in the "Calculation of Registration
Fee" table in this Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such in the Registration
Statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do
not apply if the information required to be included in a post-effective
amendment by these paragraphs is contained
II-3
<PAGE>
in periodic reports filed with or furnished by the Registrant pursuant
to Section 13 or 15(d) of the Exchange Act 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
offerings of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(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 undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act 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.
(1) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the issuer of expenses
incurred or paid by a director, officer or controlling person of the Registrant
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 Registrant 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 Act and will be governed by the final adjudication of
such issue.
II-4
<PAGE>
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-3 and has duly caused this
Post-Effective Amendment No. 2 on Form S-3 to its Registration Statement on Form
S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Miami, State of Florida, on this 9th day of November, 1998.
AVIATION SALES COMPANY
By: /s/ Dale S. Baker
-----------------------------------
Dale S. Baker, President,
Chief Executive Officer
and Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 2 on Form S-3 to its Registration Statement on Form
S-4 has been signed by the following persons in the capacities indicated:
<TABLE>
<CAPTION>
SIGNATURES TITLES DATE
<S> <C> <C>
President, Chief Executive Officer and
/s/ Dale S. Baker Chairman of the Board (Principal November 9, 1998
- ---------------------------------------- Executive Officer)
Dale S. Baker
/s/ Joseph E. Civiletto Vice President (Principal Financial and November 9, 1998
- ---------------------------------------- Accounting Officer)
Joseph E. Civiletto
*/s/ Harold M. Woody Executive Vice President and Director November 9, 1998
- ------------------------------------
Harold M. Woody
*/s/ Robert Alpert Director November 9, 1998
- -----------------------------------------
Robert Alpert
*/s/ Sam Humphreys Director November 9, 1998
- -------------------------------------
Sam Humphreys
*/s/ Kazutami Okui Director November 9, 1998
- ---------------------------------------
Kazutami Okui
/s/ Philip B. Schwartz Director November 9, 1998
- ---------------------------------------
Philip B. Schwartz
/s/ George F. Baker Director November 9, 1998
- ---------------------------------------
George F. Baker
/s/ Jeffrey N. Greenblatt Director November 9, 1998
- ---------------------------------------
Jeffrey N. Greenblatt
* By: /s/ Dale S. Baker
---------------------------------
Dale S. Baker, under
power of attorney dated
April 30, 1998
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
*4.1 Registrant's Certificate of Incorporation, as amended, filed as
Exhibits 3.1 and 3.2 to Registrant's Registration Statement on Form
S-1, File No. 333-3650, hereby incorporated by reference.
*4.2 Registrant's Bylaws filed as Exhibit 3.3 to Registrant's Registration
Statement on Form S-1, File No. 333-3650, hereby incorporated by
reference.
*5.1 Opinion of Akerman, Senterfitt & Eidson, P.A. as to the validity of
the Shares
**23.1 Consent of Akerman, Senterfitt & Eidson, P.A. (included in
Exhibit 5.1)
**23.2 Consent of Arthur Andersen LLP
**23.3 Consent of Arthur Andersen LLP
**23.4 Consent of Clark, Schaefer, Hackett & Co. LLP
**24.1 Powers of Attorney - included as part of the signature page hereto
- -------------------
* Previously filed
** Filed herewith
II-6
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
July 31, 1998 on the supplemental consolidated financial statements included on
Aviation Sales Company and subsidiaries' Form 8-K/A dated October 13, 1998; and
our report dated March 2, 1998 (except with respect to the matters discussed in
Note 14 as to which the date is March 26, 1998) included in Aviation Sales
Company and subsidiaries' Form 10-K for the year ended December 31, 1997 and to
all references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Miami, Florida,
November 10, 1998.
EXHIBIT 23.3
CONSENT OF INDEPENDENT CERTIFIED ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
March 25, 1998 on the financial statements of Whitehall Corporation included in
Aviation Sales Company and subsidiaries' Amendment No. 2 on Form S-3 to Form S-4
(File No. 333-51479-02) dated November 10, 1998 and to all references to our
Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Miami, Florida,
November 10, 1998.
EXHIBIT 23.4
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
October 30, 1997 on the financial statements of Kratz-Wilde Machine Company as
of October 31, 1996 and 1995, and of the year ended October 31, 1996 included in
Aviation Sales Company and subsidiaries' Amendment No. 2 on Form S-3 to S-4
(File No. 333-51479-02) dated November 10, 1998 and to all references to our
Firm included in this registration statement.
CLARK, SCHAEFER, HACKETT & CO.
Cincinnati, Ohio,
November 10, 1998.
