AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 16, 1999.
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AVTEAM, INC.
(Exact name of registrant as specified in its charter)
FLORIDA 65-0313187
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification number)
3230 EXECUTIVE WAY, MIRAMAR FLORIDA 333025
(Address of principal executive offices) (Zip Code)
AVTEAM, INC. 1996 STOCK OPTION PLAN
(Full Title of the Plan)
DONALD A. GRAW
PRESIDENT AND CHIEF EXECUTIVE OFFICER
AVTEAM, INC.
3230 EXECUTIVE WAY
MIRAMAR, FLORIDA 33025
(Name and address of agent for service)
(954) 431-2359
(Telephone number, including area code, of agent for service)
Copies of communications to:
ANDREW HULSH, ESQUIRE
BAKER & MCKENZIE
1200 BRICKELL AVENUE, 19TH FLOOR
MIAMI, FLORIDA 33131
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
================================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED (1) PER SHARE (2) PRICE (1)(2) FEE (1)(2)
- ---------------- -------------- ------------- ------------ ------------
<S> <C> <C> <C> <C>
Class A
Common Stock, 600,000 Shares $4.90 $2,940,000 $817.32
$0.01 par value
================================================================================================================
<FN>
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended,
this Registration Statement covers such additional number of shares of
Class A Common Stock that may be issuable pursuant to the anti-dilution
provisions of the AVTEAM, Inc. 1996 Employee Stock Option Plan
described herein.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, as amended.
================================================================================================================
</FN>
</TABLE>
<PAGE>
PART II.
INFORMATION REQUIRED
IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated into this Registration Statement by
reference:
(1) The registrant's latest Annual Report on Form 10-K for the fiscal
year ended December 31, 1997 (the "Annual Report"), filed with the Securities
and Exchange Commission (the "Commission") pursuant to Section 13(a) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act");
(2) All other reports filed with the Commission by the registrant
pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the
registrant's fiscal year covered by the Annual Report referred to in (1), above;
and
(3) A description of the registrant's Class A Common Stock, par value
$.01 per share, and related matters included in the registrant's Registration
Statement on Form 8-A filed with the Commission on October 15, 1998.
All documents subsequently filed by the registrant pursuant to Section
13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment to
this Registration Statement which indicates that all securities offered by this
Registration Statement have been sold or which deregisters all securities then
remaining unsold shall be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof from the date of filing of such
documents.
Any statement contained in a document incorporated or deemed to be
incorporated herein by reference 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 other subsequently filed document which also is or is
deemed to be incorporated herein by reference modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Florida law and the registrant's Articles of Incorporation authorize
the registrant to indemnify the Company's directors, officers, employees and
agents. In addition, the registrant's Articles and Florida law presently limit
the personal liability of corporate directors for monetary damages, except where
the directors (i) breach their fiduciary duties, and (ii) such breach
constitutes or includes certain violations of criminal law, a transaction from
which the directors derived an improper personal benefit, certain unlawful
distributions or certain other reckless, wanton or willful acts or misconduct.
At present, there is no pending litigation or proceeding involving a
director or officer of the registrant as to which indemnification is being
sought, nor is the registrant aware of any threatened litigation that may result
in claims for indemnification by any officer or director.
II-1
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The following is a complete list of exhibits filed as a part of this
Registration Statement and which are incorporated herein.
EXHIBIT NO. EXHIBIT
- ----------- -------
4.1 AVTEAM, Inc. 1996 Stock Option Plan
5.1 Opinion of Baker & McKenzie, regarding legality of the
securities covered by this Registration Statement.
23.1 Consent of Baker & McKenzie, counsel for the registrant, to
the use of its opinion with respect to the legality of the
securities covered by this Registration Statement and to the
references to such counsel in this Registration Statement
(contained in Exhibit 5.1 to this Registration Statement).
23.2 Consent of Ernst & Young, LLP, independent Certified Public
Accountants.
ITEM 9. 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 (the "Act");
(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. 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 low or
high 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 20 percent
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement.
(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 the
registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 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 Act, 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.
II-2
<PAGE>
(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 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.
(c) Insofar as indemnification for liabilities arising under the 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 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 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 Act and will be governed by the final adjudication of
such issue.
II-3
<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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Miramar, State of Florida, on February 16, 1999.
AVTEAM, INC.
By: /s/ DONALD A. GRAW
-------------------------------------
Donald A. Graw
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
<S> <C> <C>
/s/ DONALD A. GRAW Chairman of the Board of Directors, February 16 , 1999
- --------------------------- President, Chief Executive
Donald A. Graw Officer, (Principal Executive
Officer)
/s/ MARK S. KOONDEL Chief Financial Officer, Treasurer February 16, 1999
- --------------------------- (Principal Financial and
Mark S. Koondel Accounting Officer)
/s/ JAIME J. LEVY Executive Vice President, Director February 16, 1999
- ---------------------------
Jaime J. Levy
/s/ RICHARD PRESTON Secretary, Director February 16, 1999
- ---------------------------
Richard Preston
/s/ EUGENE P. LYNCH Director February 16, 1999
- ---------------------------
Eugene P. Lynch
/s/ JAMES McLELLAN Director February 16, 1999
- ---------------------------
James McLellan
/s/ SANFORD MILLER Director February 16, 1999
- ---------------------------
Sanford Miller
/s/ ROBERT MUNSON Director February 16, 1999
- ---------------------------
Robert Munson
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, the Plan
Administrator has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Miramar,
State of Florida, on February 16, 1999.
AVTEAM, INC.
By: /s/ DONALD A. GRAW
-------------------------------------
Donald A. Graw
President and Chief Executive Officer
II-4
<PAGE>
EXHIBIT INDEX
The following is a complete list of exhibits filed as a part of this
Registration Statement and which are incorporated herein.
EXHIBIT NO. EXHIBIT PAGE
- ----------- ------- ----
4.1 AVTEAM, Inc. 1996 Stock Option Plan
5.1 Opinion of Baker & McKenzie regarding legality of the
securities covered by this Registration statement
23.1 Consent of Baker & McKenzie, legal counsel for the
Company, to the use of its opinion with respect to the
legality of the securities covered by this Registration
Statement and to the references to such counsel in this
Registration Statement (contained in Exhibit 5.1 to
this Registration Statement)
23.2 Consent of Ernst & Young, LLP, independent Certified
Public Accountants
EXHIBIT 4.1
AVTEAM, INC.
1996 STOCK OPTION PLAN
1. PURPOSE.
The AVTEAM, Inc. 1996 Stock Option Plan (the "Plan") is
intended to provide to officers, directors, key employees and consultants of the
Corporation an opportunity to acquire a proprietary interest in the Corporation,
to encourage such key individuals to remain in the employ of or to contract with
the Corporation, and to attract and retain new employees, consultants, and
directors with outstanding qualifications. Pursuant to the Plan, the Corporation
may grant to officers, directors, consultants, and key employees of the
Corporation options to purchase shares of common stock of the Corporation upon
such terms and conditions as provided herein.
2. DEFINITIONS.
(a) "AFFILIATE" shall mean any corporation (other than the
Corporation) in an unbroken chain of corporations that includes the Corporation
if each of such corporations, other than the last corporation in the chain, owns
at least 50% of the total voting power of one of the other corporations.
(b) "BOARD" shall mean the Board of Directors of the
Corporation.
(c) "CODE" shall mean the Internal Revenue Code of 1986, as
amended.
(d) "COMMITTEE" shall mean the committee appointed by the
Board to administer the Plan, or if no such committee is appointed, the Board.
(e) "COMMON STOCK" shall mean the Class A Common Stock, par
value $.01 per share of the Corporation.
(f) "CONSULTANT" shall mean any person who, or any employee of
any firm which, is engaged by the Company or any Affiliate to render consulting
services and is compensated for such consulting services, and any non-employee
director of the Company whether compensated for such services or not.
(g) "CORPORATION" shall mean AVTEAM, Inc., a Florida
corporation.
<PAGE>
(h) "EFFECTIVE DATE" shall mean April 15, 1996.
(i) "EMPLOYEE" shall mean any individual who is employed,
within the meaning of Section 3401 of the Code and the regulations thereunder,
by the Corporation or by any Affiliate. For purposes of the Plan and only for
purposes of the Plan, and in regard to Nonstatutory Stock Options but not for
Incentive Stock Options, a Consultant or director of the Corporation or any
Affiliate shall be deemed to be an Employee, and service as a Consultant or
director with the Corporation or any Affiliate shall be deemed to be employment,
but no Incentive Stock Option shall be granted to a Consultant or director who
is not an employee of the Corporation or any Affiliate within the meaning of
Section 3401 of the Code and the regulations thereunder. In the case of a
non-employee director or Consultant, the provisions governing when a termination
of employment has occurred for purposes of the Plan shall be set forth in the
written stock option agreement between the Optionee and the Corporation, or, if
not so set forth, the Committee shall have the discretion to determine when a
termination of "employment" has occurred for purposes of the Plan.
(j) "EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, as amended.
(k) "EXERCISE PRICE" shall mean the price per Share at which
an Option may be exercised, as determined by the Committee and as specified in
the Optionee's stock option agreement.
(l) "FAIR MARKET VALUE" shall mean the value of each Share as
determined by the Board.
(m) "INCENTIVE STOCK OPTION" shall mean an Option of the type
described in Section 422(b) of the Code.
(n) "NONSTATUTORY STOCK OPTION" shall mean an Option of the
type not described in Section 422(b) or 423(b) of the Code.
(o) "OPTION" shall mean an option to purchase Common Stock
granted pursuant to the Plan.
(p) "OPTIONEE" shall mean any person who holds an Option
pursuant to the Plan.
(q) "PLAN" shall mean this stock option plan as it may be
amended from time to time.
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<PAGE>
(r) "PURCHASE PRICE" shall mean at any particular time the
Exercise Price times the number of Shares for which an Option is being
exercised.
(s) "SHARE" shall mean one share of authorized Common Stock.
3. ADMINISTRATION.
(a) THE COMMITTEE.
(i) The Board may administer the Plan or appoint a
Committee to administer the Plan. The Committee shall consist of not less than
two members who may also be members of the Board. Members of the Board or the
Committee who are either eligible for Options or have been granted Options may
vote on any matters affecting the administration of the Plan or the grant of any
Options pursuant to the Plan, except that no such member shall act upon the
granting of an Option to himself or herself, but any such member may be counted
in determining the existence of a quorum at any meeting of the Committee and
shall be excluded in determining unanimity of an act in writing, for any action
which is taken with respect to the granting of an Option to such member.
(ii) If the Corporation registers any class of any
equity security pursuant to Section 12 of the Exchange Act, from the effective
date of such registration until six months after the termination of such
registration, the Plan shall be administered by a Committee of directors which
shall consist of not less than two members, who during the one year prior to
service as an administrator of the Plan, shall not have been granted or awarded
equity securities pursuant to the Plan or any other plan of the Corporation or
any of its Affiliates except as permitted under Rule 16b-3 under the Exchange
Act which provides that participation in a formula plan meeting the conditions
of Rule 16(b)(3)(c)(2)(ii) or in an ongoing securities acquisition plan meeting
the conditions in Rule 16(b)(3)(d)(2)(i) shall not disqualify a member of the
Committee from serving as an administrator of the Plan. In addition, an election
to receive an annual retainer fee in either cash or an equivalent amount of
securities, or partly in cash and partly in securities, shall not disqualify a
member of the Committee from serving as an administrator of the Plan.
The Board may from time to time designate individuals as
ineligible to participate in the Plan for a specified period in order to become
eligible to be a member of the Committee.
(b) POWERS OF THE COMMITTEE.
Subject to the provisions of the Plan, the Committee shall
have the authority, in its discretion and on behalf of the Corporation:
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<PAGE>
(i) to grant Options;
(ii) to determine the Exercise Price per Share of
Options to be granted;
(iii) to determine the Employees to whom, and the
time or times at which, Options shall be granted and the number of Shares for
which an Option will be exercisable;
(iv) to interpret the Plan;
(v) to prescribe, amend, and rescind rules and
regulations relating to the Plan;
(vi) to determine the terms and provisions of each
Option granted and, with the consent of the holder thereof, modify or amend each
Option;
(vii) to accelerate or defer, with the consent of the
Optionee, the exercise date of any Option;
(viii) to authorize any person to execute on behalf
of the Corporation any instrument required to effectuate the grant of an Option
previously granted by the Committee;
(ix) with the consent of the Optionee, to reprice,
cancel and regrant, or otherwise adjust the Exercise Price of an Option
previously granted by the Committee; and
(x) to make all other determinations deemed necessary
or advisable for the administration of the Plan.
(c) BOARD'S DETERMINATION OF FAIR MARKET VALUE.
The Board shall have the authority to determine, upon
review of relevant information, the Fair Market Value of the Common Stock,
subject to the provisions of the Plan and irrespective of whether the Board has
appointed a Committee to administer the Plan. The Board may delegate this
authority to the Committee.
(d) COMMITTEE'S INTERPRETATION OF THE PLAN.
The interpretation and construction by the Committee
of any provision of the Plan or of any Option granted hereunder shall be final
and binding on all parties claiming an interest in an Option granted under the
Plan. No member of the Committee shall be liable for any action or determination
made in good faith with respect to the Plan or any Option.
4
<PAGE>
(e) ALL COMMITTEE ACTIONS TO BE IN WRITING.
Any and all actions of the Committee taken in
exercise of the powers granted to it in this Section 3 shall be in writing.
4. PARTICIPATION.
(a) ELIGIBILITY.
The Optionees shall be such persons as the Committee
may select from among the Employees, provided that Consultants are not eligible
to receive Incentive Stock Options.
(b) TEN PERCENT SHAREHOLDERS.
Any Employee who owns Stock possessing more than 10%
of the total combined voting power of all classes of outstanding stock of the
Corporation or any Affiliate shall not be eligible to receive an Option unless:
(i) the Exercise Price of the Shares subject to such
Option when granted is at least 110% of the Fair Market Value of such Shares,
and
(ii) such Option by its terms is not exercisable
after the expiration of five years from the date of grant.
(c) STOCK OWNERSHIP.
For purposes of Section 4(b), in determining stock
ownership, an Employee shall be considered as owning the stock owned, directly
or indirectly, by or for his or her brothers and sisters, spouse, ancestors, and
lineal descendants. Stock owned, directly or indirectly, by or for a
corporation, partnership, estate, or trust shall be considered as being owned
proportionately by or for its shareholders, partners, or beneficiaries,
respectively. Stock with respect to which such Employee or any other person
holds an Option shall be disregarded.
(d) OUTSTANDING STOCK.
For purposes of Section 4(b), the term "outstanding
stock" shall include all stock actually issued and outstanding immediately after
the grant of the Option to the Optionee but shall not include any share for
which an Option is exercisable by any person.
5
<PAGE>
5. SHARES.
(a) SHARES SUBJECT TO THIS PLAN.
The aggregate number of Shares which may be issued
upon exercise of Options under the Plan shall not exceed 600,000 shares of
Common Stock, subject to adjustment pursuant to Section 9 hereof.
(b) OPTIONS NOT TO EXCEED SHARES AVAILABLE.
The number of Shares for which an Option is
exercisable at any time shall not exceed the number of Shares remaining
available for issuance under the Plan. If any Option expires or is terminated,
the number of Shares for which such Option was exercisable may be made
exercisable pursuant to other Options under the Plan. The limitations
established by this Section 5(b) shall be subject to adjustment in the manner
provided in Section 9 hereof upon the occurrence of an event specified therein.
6. TERMS AND CONDITIONS OF OPTIONS.
(a) STOCK OPTION AGREEMENTS.
Options shall be evidenced by written stock option
agreements between the Optionee and the Corporation in such form as the
Committee shall from time to time determine. No Option or purported Option shall
be a valid and binding obligation of the Corporation unless so evidenced in
writing.
(b) NUMBER OF SHARES.
Each stock option agreement shall state the number of
Shares for which the Option is exercisable and shall provide for the adjustment
thereof in accordance with Section 9 hereof. In no event shall the number of
shares subject to an Option or Options granted to any single Optionee exceed, in
the aggregate, in any one calendar year 200,000 shares.
(c) VESTING.
An Optionee may not exercise his or her Option for
any Shares until the Option, in regard to such Shares, has vested. Each stock
option agreement shall include a vesting schedule which shall show when the
Option becomes exercisable provided, each Option shall vest at a rate of at
least twenty percent (20%) per year over a period of five (5) years with the
first 20% becoming exercisable on the first anniversary of the date the Options
were granted. The vesting schedule shall not impose upon the Corporation or any
Affiliate any obligation to retain the Optionee in its employ or under contract
for any period or otherwise change the employment-at-will status of an Optionee
who is an employee of the Corporation or any Affiliate.
6
<PAGE>
(d) LAPSE OF OPTIONS.
Each stock option agreement shall state the time or
times when the Option covered thereby lapses and becomes unexercisable in part
or in full. An Option shall lapse on the earliest of the following events
(unless otherwise determined by the Committee and reflected in an option
agreement):
(i) The tenth anniversary of the date of granting the
Option;
(ii) The first anniversary of the Optionee's death;
(iii) The first anniversary of the date the Optionee
ceases to be an Employee due to total and permanent disability;
(iv) On the date provided in Section 6(h)(i), unless
with respect to a Nonstatutory Stock Option, the Committee otherwise extends
such period before the applicable expiration date;
(v) On the date provided in Section 9 for a
transaction described in such Section;
(vi) The date the Optionee files or has filed against
him or her a petition in bankruptcy; or
(vii) The expiration date specified in an Optionee's
stock option agreement.
(e) EXERCISE PRICE.
Each stock option agreement shall state the Exercise
Price for the Shares for which the Option is exercisable. Subject to Section
4(b), the Exercise Price of an Incentive Stock Option and a Nonstatutory Stock
Option shall, when granted, be not less than 100% and 85% of the Fair Market
Value of the Shares for which the Option is exercisable, respectively, and not
less than the par value of the Shares.
(f) MEDIUM AND TIME OF PAYMENT.
The Purchase Price shall be payable in full in cash
upon the exercise of an Option but the Committee may allow the Optionee to pay
the Purchase Price:
(i) by surrendering Shares in good form for transfer,
owned by the Optionee and having a Fair Market Value on the date of exercise
equal to the Purchase Price; or
7
<PAGE>
(ii) in any combination of such consideration or such
other consideration and method of payment for the issuance of Shares to the
extent permitted under applicable law as long as the sum of the cash so paid,
the Fair Market Value of the Shares so surrendered, and the amount of any Note
equals the Purchase Price.
The Committee or a stock option agreement may
prescribe requirements with respect to the exercise of Options, including the
submission by the Optionee of such forms and documents as the Committee may
require and, the delivery by the Optionee of cash sufficient to satisfy
applicable withholding requirements. The Committee may vary the exercise
requirements and procedures from time to time to facilitate, for example, the
broker-assisted exercise of Options.
(g) NONTRANSFERABILITY OF OPTIONS.
During the lifetime of the Optionee, the Option shall
be exercisable only by the Optionee or the Optionee's conservator or legal
representative and shall not be assignable or transferable except pursuant to a
qualified domestic relations order as defined by the Code. In the event of the
Optionee's death, the Option shall not be transferable by the Optionee other
than by will or the laws of descent and distribution.
(h) TERMINATION OF EMPLOYMENT OTHER THAN BY DEATH OR
DISABILITY.
(i) If an Optionee ceases to be an Employee for any
reason other than his or her death or disability, the Optionee shall have the
right, subject to the provisions of this Section 6, to exercise any Option held
by the Optionee at any time within thirty (30) days after his or her termination
of employment, but not beyond the otherwise applicable term of the Option and
only to the extent that on such date of termination of employment the Optionee's
right to exercise such Option had vested.
(ii) For purposes of this Section 6(h), the
employment relationship shall be treated as continuing intact while the Optionee
is an active employee of the Corporation or any Affiliate, or is on military
leave, sick leave, or other bona fide leave of absence to be determined in the
sole discretion of the Committee. The preceding sentence notwithstanding, in the
case of an Incentive Stock Option, employment shall be deemed to terminate on
the date the Optionee ceases active employment with the Corporation or any
Affiliate, unless the Optionee's reemployment rights are guaranteed by statute
or contract.
(i) DEATH OF OPTIONEE.
If an Optionee dies while an Employee, or after
ceasing to be an Employee but during the period while he or she could have
exercised an Option under Section 6(h), any Option granted to the Optionee may
be exercised, to the extent it had vested at the time of death and subject to
the Plan, at any time within 12 months after the Optionee's death, by the
executors or administrators of his or her estate or by any person or persons who
acquire the Option by will
8
<PAGE>
or the laws of descent and distribution, but not beyond the otherwise applicable
term of the Option.
(j) DISABILITY OF OPTIONEE.
If an Optionee ceases to be an Employee due to
becoming totally and permanently disabled within the meaning of Section 22(e)(3)
of the Code, any Option granted to the Optionee may be exercised to the extent
it had vested at the time of cessation and, subject to the Plan, at any time
within 12 months after the Optionee's termination of employment, but not beyond
the otherwise applicable term of the Option.
(k) RIGHTS AS A SHAREHOLDER.
An Optionee, or a transferee of an Optionee, shall
have no rights as a shareholder of the Corporation with respect to any Shares
for which his or her Option is exercisable until the date of the issuance of a
stock certificate for such Shares. No adjustment shall be made for dividends,
ordinary or extraordinary or whether in currency, securities, or other property,
distributions, or other rights for which the record date is prior to the date
such stock certificate is issued, except as provided in Section 9 hereof.
(l) MODIFICATION, EXTENSION, AND RENEWAL OF OPTIONS.
Within the limitations of the Plan, the Committee may
modify, extend or renew outstanding Options or accept the cancellation of
outstanding Options for the granting of new Options in substitution therefor.
Notwithstanding the preceding sentence, no modification of an Option shall,
without the consent of the Optionee, alter or impair any rights or obligations
under any Option previously granted.
(m) OTHER PROVISIONS.
The stock option agreements authorized under the Plan
may contain such other provisions which are not inconsistent with the terms of
the Plan, including, without limitation, restrictions upon the exercise of the
Option, as the Committee shall deem advisable.
Without limiting the generality of the foregoing, a
stock option agreement under the Plan may provide for accelerated vesting upon
specified corporate events (e.g., events specified in Section 9 hereof) or for
waiver of the option termination provision of Section 9(c) hereof, but in no
event may an option term be extended beyond the date indicated in Section 8.
7. $100,000 PER YEAR LIMITATION ON VESTING OF ISOS.
In accordance with section 422(d) of the Code, to the extent
that the Fair Market Value of Shares (determined for each Share as of the date
of grant of the Option covering such Share) subject to Options granted under
this Plan (or any other plan of the Corporation or any Affiliate) which are
designated as Incentive Stock Options and which become exercisable by an
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Optionee for the first time during a single calendar year exceeds $100,000, the
Option(s) (or portion thereof) covering such Shares shall be recharacterized (to
the extent of such excess over $100,000) as a Nonstatutory Stock Option(s). In
determining which Option(s) shall be treated as Nonstatutory Stock Options under
the preceding sentence, the Options shall be taken into account in the order
granted, with the result that a later granted Option shall be recharacterized as
a Nonstatutory Stock Option prior to such recharacterization of a previously
granted Option.
8. TERM OF PLAN.
Options may be granted pursuant to the Plan until ten years
following the Effective Date, and all Options which are outstanding on such date
shall remain in effect until they are exercised or expire by their terms. The
Plan shall expire for all purposes on March 1, 2006.
9. RECAPITALIZATION, TAKEOVERS, AND LIQUIDATIONS.
(a) REORGANIZATIONS.
The number of Shares covered by the Plan, as provided
in Section 5 hereof, and the number of Shares for which each Option is
exercisable shall be proportionately adjusted for any increase or decrease in
the number of issued Shares resulting from the payment of a Common Stock
dividend, a stock split, a reverse stock split, a stock dividend,
recapitalization, combination or reclassification of the Corporation's stock or
any other event which results in an increase or decrease in the number of issued
Shares effected without receipt of consideration by the Corporation, and the
Exercise Price shall be proportionately increased in the event the number of
Shares subject to such Option are decreased and shall be proportionately
decreased in the event the number of Shares subject to such Option are
increased. For the purposes of this paragraph, conversion of any convertible
securities of the Corporation shall not be deemed to have been "effected without
receipt of consideration." Adjustments shall be made by the Board, whose
determination in that respect shall be final, binding and conclusive. Except as
expressly provided herein, no issuance by the Corporation of shares of stock of
any class, or securities convertible into shares of stock of any class, shall
affect, and no adjustment by reason thereof shall be made with respect to, the
number or price of shares subject to an Option.
(b) LIQUIDATION.
In the event of the dissolution or liquidation of the
Corporation, each Option shall terminate immediately prior to the consummation
of such action. The Committee shall notify the Optionee not less than fifteen
(15) days prior to the proposed consummation of a pending dissolution or
liquidation, and the Option shall be exercisable as to all Shares which are
vested prior to expiration until immediately prior to the consummation of such
action.
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(c) MERGER.
Except as otherwise expressly provided in an
Optionee's stock option agreement, in the event of (i) a proposed merger of the
Corporation with or into another corporation, as a result of which the
Corporation is not the surviving corporation and (ii) the Option is not assumed
or an equivalent option substituted by the successor corporation or a parent or
subsidiary of the successor corporation, then in such case each Option shall
terminate immediately prior to the consummation of such transaction. The
Committee shall notify the Optionee not less than fifteen (15) days prior to the
proposed consummation of such transaction, and the Option shall be exercisable
as to all Shares which are vested prior to expiration and until immediately
prior to the consummation of such transaction.
(d) DETERMINATION BY COMMITTEE.
All adjustments described in this Section 9 shall be
made by the Committee, whose determination shall be conclusive and binding on
all persons.
(e) LIMITATION ON RIGHTS OF OPTIONEE.
Except as expressly provided in this Section 9, no
Optionee shall have any rights by reason of any payment of any stock dividend,
stock split or reverse stock split or any other increase or decrease in the
number of shares of stock of any class, or by reason of any reorganization,
consolidation, dissolution, liquidation, merger, exchange, split-up or reverse
split-up, or spin-off of assets or stock of another corporation. Any issuance by
the Corporation of Shares, Options or securities convertible into Shares or
Options shall not affect, and no adjustment by reason thereof shall be made with
respect to, the number or Exercise Price of the Shares for which an Option is
exercisable. Notwithstanding the foregoing, if the Corporation shall enter into
a transaction affecting the Corporation's capital stock or distributions to the
holders of its capital stock for which a revision in the terms of each Option is
not required pursuant to this Section 9, the Committee shall have the right, but
not the obligation, to revise the terms of each Option in a manner the
Committee, in its sole discretion, deems fair and reasonable given the
transaction involved. If necessary or appropriate in connection with such
transaction, the Committee may declare that any Option shall terminate as of a
date fixed by the Committee and give each Optionee the right to exercise his
Option in whole or in part, including exercise as to Shares to which the Option
would not otherwise be exercisable.
(f) NO RESTRICTION ON RIGHTS OF CORPORATION.
The grant of an Option shall not affect or restrict
in any way the right or power of the Corporation to make adjustments,
reclassifications, reorganizations, or changes of its capital or business
structure, or to merge or consolidate, or to dissolve, liquidate, sell, or
transfer all or any part of its business or assets.
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<PAGE>
10. SECURITIES LAW REQUIREMENTS.
(a) LEGALITY OF ISSUANCE.
No Share shall be issued upon the exercise of any
Option unless and until the Corporation has determined that:
(i) The Corporation and the Optionee have taken all
actions required to exempt the issuance of the Shares from the registration
requirements under the Securities Act of 1933, as amended (the "Act"), or the
Corporation and the Optionee shall determine that the registration requirements
of the Act do not apply to such exercise;
(ii) Any applicable listing requirement of any stock
exchange on which the Common Stock is listed has been satisfied; and
(iii) Any other applicable provision of state or
Federal law has been satisfied.
(b) RESTRICTIONS ON TRANSFER; REPRESENTATIONS OF
OPTIONEE; LEGENDS.
Regardless of whether the offering and sale of Shares
has been registered under the Act or has been registered or qualified under the
securities laws of any state, the Corporation may impose restrictions upon the
sale, pledge, or other transfer of such Shares, including the placement of
appropriate legends on stock certificates, if, in the judgment of the
Corporation and its counsel, such restrictions are necessary or desirable in
order to achieve compliance with the provisions of the Act, the securities laws
of any state, or any other law. If the sale of Shares is not registered under
the Act and the Corporation shall determine that the registration requirements
of the Act apply to such sale, but an exemption is available which requires an
investment representation or other representation, the Optionee shall be
required, as a condition to purchasing Shares by exercise of his or her Option,
to represent that such Shares are being acquired for investment, and not with a
view to the sale or distribution thereof, except in compliance with the Act, and
to make such other representations as are deemed necessary or appropriate by the
Corporation and its counsel. Stock certificates evidencing Shares acquired
pursuant to an unregistered transaction to which the Act applies shall bear a
restrictive legend substantially in the following form and such other
restrictive legends as are required or deemed advisable under the Plan or the
provisions of any applicable law:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR QUALIFIED UNDER THE SECURITIES LAWS OF ANY STATE.
THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A
VIEW TO OR FOR SALE IN CONNECTION WITH ANY DISTRIBUTION
THEREOF, AND MAY NOT BE
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SOLD, MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION UNDER THE ACT
AND/OR QUALIFICATION UNDER ANY APPLICABLE STATE SECURITIES
LAWS, OR WITHOUT AN OPINION OF COUNSEL ACCEPTABLE TO THE
CORPORATION AND ITS COUNSEL THAT SUCH REGISTRATION OR
QUALIFICATION IS NOT REQUIRED."
Any determination by the Corporation and its counsel in connection with any of
the matters set forth in this Section 10 shall be conclusive and binding on all
persons.
(c) REGISTRATION OR QUALIFICATION OF SECURITIES.
The Corporation may, but shall not be obligated to,
register or qualify the sale of Shares under the Act or any other applicable
law. In connection with any such registration or qualification, the Corporation
shall provide each Optionee with such information required pursuant to all
applicable laws and regulations.
(d) EXCHANGE OF CERTIFICATES.
If, in the opinion of the Corporation and its
counsel, any legend placed on a stock certificate representing Shares sold
hereunder is no longer required, the Optionee or the holder of such certificate
shall be entitled to exchange such certificate for a certificate representing
the same number of Shares but lacking such legend.
11. EXERCISE OF UNVESTED OPTIONS.
The Committee may grant any Optionee the right to exercise
any Option prior to the complete vesting of such Option. Without limiting the
generality of the foregoing, the Committee may provide that if an Option is
exercised prior to having completely vested, the Shares issued upon such
exercise shall remain subject to vesting at the same rate as under the Option so
exercised and shall be subject to a right, but not an obligation, of repurchase
by the Corporation with respect to all unvested Shares if the Optionee ceases to
be an Employee for any reason. For the purposes of facilitating the enforcement
of any such right of repurchase, at the request of the Committee, the Optionee
shall enter into the Joint Escrow Instructions with the Corporation and deliver
every certificate for his or her unvested Shares with a stock power executed in
blank by the Optionee and by the Optionee's spouse, if required for transfer.
12. AMENDMENT OF THE PLAN.
The Board or the Committee may, from time to time,
terminate, suspend or discontinue the Plan, in whole or in part, or revise or
amend it in any respect whatsoever including, but not limited to, the adoption
of any amendment(s) deemed necessary or advisable to
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<PAGE>
qualify the Options under rules and regulations promulgated by the Securities
and Exchange Commission with respect to Employees who are subject to the
provisions of Section 16 of the Securities Exchange Act of 1934, as amended, or
to correct any defect or supply any omission or reconcile any inconsistency in
the Plan or in any Option granted thereunder, without approval of the
shareholders of the Corporation, but without the approval of the Corporation's
shareholders, no such revision or amendment shall:
(i) Increase the number of Shares subject to the
Plan, other than any increase pursuant to Section 9;
(ii) Materially modify the requirements as to
eligibility for participation in the Plan;
(iii) Materially increase the benefits accruing to
Optionees under the Plan;
(iv) Extend the term of the Plan; or
(v) Amend this Section 12 to defeat its purpose.
No amendment, termination or modification of the Plan shall affect any Option
theretofore granted in any material adverse way without the consent of the
Optionee.
13. APPLICATION OF FUNDS.
The proceeds received by the Corporation from the sale of
Common Stock pursuant to the exercise of an Option shall be used for general
corporate purposes.
14. APPROVAL OF SHAREHOLDERS.
The Plan shall be subject to approval by the affirmative
vote of the holders of a majority of all classes of the outstanding shares
present and entitled to vote at the first meeting of shareholders of the
Corporation following the adoption of the Plan or by written consent, and in no
event later than one (1) year following the Effective Date. Prior to such
approval, Options may be granted but shall not be exercisable. Any amendment
described in Section 12 (i) to (iv) shall also be subject to approval by the
Corporation's shareholders.
15. WITHHOLDING OF TAXES.
In the event the Corporation or an Affiliate determines that
it is required to withhold Federal, state, or local taxes in connection with the
exercise of an Option or the disposition of Shares issued pursuant to the
exercise of an Option, the Optionee or any person succeeding to the rights of
the Optionee, as a condition to such exercise or disposition, may be required to
make arrangements satisfactory to the Corporation or the Affiliate to enable it
to
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<PAGE>
satisfy such withholding requirements. Alternatively, the Corporation may issue
or transfer Shares net of the number of Shares sufficient to satisfy withholding
tax requirements. For withholding tax purposes, the Shares will be valued on the
date the withholding obligation is incurred.
16. RIGHTS AS AN EMPLOYEE.
Neither the Plan nor any Option granted pursuant thereto
shall be construed to give any person the right to remain in the employ of the
Corporation or any Affiliate, or to affect the right of the Corporation or any
Affiliate to terminate such individual's employment at any time with or without
cause. The grant of an Option shall not entitle the Optionee to, or disqualify
the Optionee from, participation in the grant of any other Option under the Plan
or participation in any other benefit plan maintained by the Corporation or any
Affiliate.
17. DISAVOWAL OF REPRESENTATIONS, UNDERTAKINGS OR CREATION OF
IMPLIED RIGHTS.
In adopting and maintaining this Plan and granting options
hereunder, neither the Corporation nor any Affiliate makes any representations
or undertakings with respect to the initial qualification or treatment of
Options under federal or state tax or securities laws. The Corporation and each
Affiliate expressly disavows the creation of any rights in Employees, Optionees,
or beneficiaries of any obligations on the part of the Corporation, any
Affiliate or the Committee, except as expressly provided herein.
18. INSPECTION OF RECORDS.
Copies of the Plan, records reflecting each Optionee's
Option, and any other documents and records which an Optionee is entitled by law
to inspect shall be open to inspection by the Optionee and his or her duly
authorized representative at the office of the Committee at any reasonable
business hour.
19. INFORMATION TO OPTIONEES.
Each Optionee shall be provided with such information
regarding the Corporation as the Committee from time to time deems necessary or
appropriate; provided however, that each Optionee shall at all times be provided
with such information as is required to be provided from time to time pursuant
to applicable regulatory requirements, including, but not limited to, any
applicable requirements of the Securities and Exchange Commission and other
state securities agencies.
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EXHIBIT A
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER
SUCH ACT OR AN OPINION OF COUNSEL, SATISFACTORY TO THE CORPORATION AND
ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.
NONSTATUTORY STOCK OPTION AGREEMENT
This Stock Option Agreement is made and entered into this day of
_________, 199_, pursuant to the AVTEAM, Inc. 1996 Stock Option Plan (the
"Plan"). The Committee administering the Plan has selected __________________
("the Optionee") to receive the following grant of a nonstatutory stock option
("Stock Option") to purchase shares of the Class A Common Stock of AVTEAM, Inc.
(the "Corporation"), on the terms and conditions set forth below to which
Optionee accepts and agrees:
1. Stock Options Granted:
Number of Shares Subject to Option _________
Date of Grant _________
Vesting Commencement Date _________
Exercise Price Per Share _________
Expiration Date _________
2. The Stock Option is granted pursuant to the Plan to purchase
the number of shares of authorized but unissued common stock of the Corporation
specified in Section 1 hereof (the "Shares"). The Stock Option shall expire, and
all rights to exercise it shall terminate on the Expiration Date, except that
the Stock Option may expire earlier as provided in the Plan. The number of
Shares subject to the Stock Option granted hereunder shall be adjusted as
provided in the Plan. This Stock Option is intended by the Corporation and the
Optionee to be a Nonstatutory Stock Option and does not qualify for any special
tax benefits to the Optionee and is not subject to Section 7 of the Plan.
3. The Stock Option shall be exercisable in all respects in
accordance with the terms of the Plan which are incorporated herein by this
reference. Optionee acknowledges having received and read a copy of the Plan.
<PAGE>
4. Optionee shall have the right to exercise the Stock Option in
accordance with the following schedule:
(a) The Stock Option may not be exercised in whole or in
part at any time prior to the end of the first full calendar year following the
Vesting Commencement Date.
(b) Optionee may exercise the Stock Option as to 20% of
the Shares at the end of the first full calendar year following the Vesting
Commencement Date.
(c) Optionee may exercise the Stock Option as to an
additional 20% of the Shares at the end of each full calendar year thereafter
following the Vesting Commencement Date.
(d) The right to exercise the Stock Option shall be
cumulative. Optionee may buy all, or from time to time any part, of the maximum
number of Shares which are exercisable under the Stock Option, but in no case
may Optionee exercise the Stock Option with regard to a fraction of a Share, or
for any share for which the Stock Option is not exercisable.
5. The Optionee agrees to comply with all laws, rules, and
regulations applicable to the grant and exercise of the Stock Option and the
sale or other disposition of the common stock of the Corporation received
pursuant to the exercise of such Stock Option.
6. The Stock Option is conditioned upon the Optionee's
representation, which Optionee hereby confirms as of the date of this Agreement
and which Optionee must confirm as of the date of any exercise of all or any
part of the Stock Option, that:
(a) Optionee understands that both this Stock Option and
any shares purchased upon its exercise are securities, the issuance of which
require compliance with state and Federal securities laws;
(b) Optionee understands that neither the Options nor the
Shares have been registered under the Securities Act of 1933 (the "Act") in
reliance upon a specific exemption contained in the Act which depends upon
Optionee's bona fide investment intention in acquiring these securities; that
Optionee's intention is to hold these securities for Optionee's own benefit for
an indefinite period; that Optionee has no present intention of selling or
transferring any part thereof (recognizing that the Stock Option is not
transferable) and that certain restrictions may exist on transfer of the Shares
issued upon exercise of the Stock Option;
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<PAGE>
(c) Optionee understands that the Shares issued upon
exercise of this Stock Option, in addition to other restrictions on transfer,
must be held indefinitely unless subsequently registered under the Act, or
unless an exemption from registration is available; that Rule 701 and Rule 144,
two exemptions from registration which may be available, are only available
after the satisfaction of certain conditions and require the presence of a U.S.
public market for such Shares; that no certainty exists that a U.S. public
market for the Shares will exist, and that otherwise Optionee may have to sell
the Shares pursuant to another exemption from registration which exemption may
be difficult to satisfy; and
(d) The Corporation shall not be under any obligation to
issue any Shares upon the exercise of this Stock Option unless and until the
Corporation has determined that:
(i) it and Optionee have taken all actions required
to register such Shares under the Securities Act, or to perfect an exemption
from the registration requirements thereof;
(ii) any applicable listing requirement of any stock
exchange on which such Shares are listed has been satisfied; and
(iii) all other applicable provisions of state and
Federal law have been satisfied.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Stock Option Agreement, in the case of the Corporation by its duly authorized
officer, as of the date and year written above.
OPTIONEE AVTEAM, INC.
By: _____________________________ By: ______________________________
(signature) (signature)
Its: ____________________________ Its: _____________________________
(Type or Print Name) (Type or Print Name)
Address: ________________________
________________________
________________________
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<PAGE>
EXHIBIT B
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER
SUCH ACT OR AN OPINION OF COUNSEL, SATISFACTORY TO THE CORPORATION AND
ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.
INCENTIVE STOCK OPTION AGREEMENT
This Stock Option Agreement is made and entered into this day of
_________, 199_, pursuant to the AVTEAM, Inc. 1996 Stock Option Plan (the
"Plan"). The Committee administering the Plan has selected __________________
("the Optionee") to receive the following grant of an incentive stock option
("Stock Option") to purchase shares of the Class A Common Stock of AVTEAM, Inc.
(the "Corporation"), on the terms and conditions set forth below to which
Optionee accepts and agrees:
1. Stock Options Granted:
Number of Shares Subject to Option _________
Date of Grant _________
Vesting Commencement Date _________
Exercise Price Per Share _________
Expiration Date _________
2. The Stock Option is granted pursuant to the Plan to purchase
the number of shares of authorized but unissued common stock of the Corporation
specified in Section 1 hereof (the "Shares"). The Stock Option shall expire, and
all rights to exercise it shall terminate on the Expiration Date, except that
the Stock Option may expire earlier as provided in the Plan. The number of
shares subject to the Stock Option granted hereunder shall be adjusted as
provided in the Plan.
3. The Stock Option shall be exercisable in all respects in
accordance with the terms of the Plan which are incorporated herein by this
reference. Optionee acknowledges having received and read a copy of the Plan.
4. Optionee shall have the right to exercise the Stock Option in
accordance with the following schedule:
(a) The Stock Option may not be exercised in whole or in
part at any time prior to the end of the first full calendar year following the
Vesting Commencement Date.
<PAGE>
(b) Optionee may exercise the Stock Option as to 20% of
the Shares at the end of the first full calendar year following the Vesting
Commencement Date.
(c) Optionee may exercise the Stock Option as to an
additional 20% of the Shares at the end of each full calendar year thereafter
following the Vesting Commencement Date.
(d) The right to exercise the Stock Option shall be
cumulative. Optionee may buy all, or from time to time any part, of the maximum
number of shares which are exercisable under the Stock Option, but in no case
may Optionee exercise the Stock Option with regard to a fraction of a Share, or
for any Share for which the Stock Option is not exercisable.
5. The Optionee agrees to comply with all laws, rules, and
regulations applicable to the grant and exercise of the Stock Option and the
sale or other disposition of the common stock of the Corporation received
pursuant to the exercise of such Stock Option.
6. The Stock Option is conditioned upon the Optionee's
representation, which Optionee hereby confirms as of the date of this Agreement
and which Optionee must confirm as of the date of any exercise of all or any
part of the Stock Option, that:
(a) Optionee understands that both this Stock Option and
any Shares purchased upon its exercise are securities, the issuance of which
require compliance with state and Federal securities laws;
(b) Optionee understands that neither the Options nor the
Shares have been registered under the Securities Act of 1933 (the "Act") in
reliance upon a specific exemption contained in the Act which depends upon
Optionee's bona fide investment intention in acquiring these securities; that
Optionee's intention is to hold these securities for Optionee's own benefit for
an indefinite period; that Optionee has no present intention of selling or
transferring any part thereof (recognizing that the Stock Option is not
transferable) and that certain restrictions may exist on transfer of the Shares
issued upon exercise of the Stock Option;
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<PAGE>
(c) Optionee understands that the Shares issued upon
exercise of this Stock Option, in addition to other restrictions on transfer,
must be held indefinitely unless subsequently registered under the Act, or
unless an exemption from registration is available; that Rule 701 and Rule 144,
two exemptions from registration which may be available, are only available
after the satisfaction of certain conditions and require the presence of a U.S.
public market for such Shares; that no certainty exists that a U.S. public
market for the Shares will exist, and that otherwise Optionee may have to sell
the Shares pursuant to another exemption from registration which exemption may
be difficult to satisfy; and
(d) The Corporation shall not be under any obligation to
issue any shares upon the exercise of this Stock Option unless and until the
Corporation has determined that:
(i) it and Optionee have taken all actions
required to register such Shares under the Securities Act, or to perfect an
exemption from the registration requirements thereof;
(ii) any applicable listing requirement of any
stock exchange on which such Shares are listed has been satisfied; and
(iii) all other applicable provisions of state and
Federal law have been satisfied.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Stock Option Agreement, in the case of the Corporation by its duly authorized
officer, as of the date and year written above.
OPTIONEE AVTEAM, INC.
By: _____________________________ By: ______________________________
(signature) (signature)
Its: ____________________________ Its: _____________________________
(Type or Print Name) (Type or Print Name)
Address: ________________________
________________________
________________________
EXHIBIT 5.1
[Baker & McKenzie Letterhead]
February 16, 1999
AVTEAM, Inc.
3230 Executive Way
Miramar, Florida 33025
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
On the date hereof, AVTEAM, Inc., a Florida corporation (the
"Company"), sent for filing with the Securities and Exchange Commission a
Registration Statement on Form S-8 (the "Registration Statement"), under the
Securities Act of 1933, as amended (the "Act"). The Registration Statement
relates to the offering and sale by the Company of up to 600,000 shares of the
Company's Class A Common Stock, par value $.01 per share (the "Common Stock"),
pursuant to stock options ("Options") granted or to be granted under the
Company's 1996 Stock Option Plan (the "Plan"). We have acted as counsel to the
Company in connection with the preparation and filing of the Registration
Statement.
In connection therewith, we have examined and relied upon the original
or a copy, certified to our satisfaction, of (i) the Articles of Incorporation
and Bylaws of the Company; (ii) records of corporate proceedings of the Company
authorizing the Plan and preparation of the Registration Statement and related
matters; (iii) the Registration Statement and exhibits thereto; and (iv) such
other documents and instruments as we have deemed necessary for the expression
of the opinions herein contained. In making the foregoing examinations, we have
assumed the genuineness of all signatures and the authenticity of all documents
submitted to us as originals, and the conformity to original documents of all
documents submitted to us as certified or photostatic copies. As to various
questions of fact material to this opinion, we have relied, to the extent we
deem reasonably appropriate, upon representations or certificates of officers or
directors of the Company and upon documents, records and instruments furnished
to us by the Company, without independently checking or verifying the accuracy
of such documents, records and instruments.
Based upon the foregoing examination, we are of the opinion that the
Company presently has available at least 600,000 shares of authorized and
unissued Common Stock from which the 600,000 shares of Common Stock proposed to
be sold pursuant to the exercise of Options granted under the Plan may be
issued. In addition, assuming that the Company maintains an adequate number of
authorized but unissued shares of Common Stock available for issuance to those
persons who choose to exercise their Options, and that the consideration for the
underlying shares of Common Stock issued pursuant to the Options is actually
received by the Company as provided in the Plan, we are of the opinion that the
shares of Common Stock issued pursuant to the exercise of Options granted under
and in accordance with the terms of the Plan will be duly and validly issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we come
within the category of persons whose consent is required by Section 7 of the Act
or the rules and regulations of the Commission thereunder.
Sincerely,
/s/ BAKER & McKENZIE
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the AVTEAM, Inc. 1996 Stock Option Plan of our reports dated
February 16, 1998, with respect to the consolidated financial statements and
schedules of AVTEAM, Inc. included in its Annual Report (Form 10-K) for the year
ended December 31, 1997, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Miami, Florida
February 10, 1999
