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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 6, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
AVIATION DISTRIBUTORS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 33-0715685
(State of incorporation) (I.R.S. employer identification no.)
1 WRIGLEY DRIVE
IRVINE, CALIFORNIA 92619
(Address of principal executive offices) (Zip code)
---------------------------
AVIATION DISTRIBUTORS, INC.
1996 STOCK OPTION AND INCENTIVE PLAN
(Full title of the plan)
OSAMAH S. BAKHIT
CHIEF EXECUTIVE OFFICER
AVIATION DISTRIBUTORS, INC.
1 WRIGLEY DRIVE
IRVINE, CALIFORNIA 92618
(714)586-7558
(Name, address and telephone number, including area code,
of agent for service)
Copy to:
BRIAN J. MCCARTHY, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
300 South Grand Avenue, 34th floor
Los Angeles, California 90071
<TABLE>
<CAPTION>
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Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered Per Share (1)(2) Price (2) Fee (3)
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<S> <C> <C> <C> <C>
Common Stock,
par value 264,500 (4)(5) $5.00 $1,322,500 $401
$.01 per share
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</TABLE>
(1) Estimated pursuant to Rules 457 (h) under the Securities Act of 1933, as
amended (the "Securities Act"), on the basis of the initial public offering
price per price per share of common stock of Aviation Distributors, Inc.
("Common Stock").
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(2) Estimated solely for the purpose of calculating the registration fee.
(3) The registration fee has been calculated pursuant to Section 6(b) of the
Securities Act as follows: one-thirty-third (1/33) of one percent of the
Proposed Maximum Aggregate Offering Price of the shares of Common Stock
registered hereby.
(4) Plus such additional number of shares of Common Stock as may be issuable
pursuant to the antidilution provisions of the above referenced plan.
(5) The number of shares being registered represents the number of shares that
may be sold pursuant to the above-referenced plan during the remainder of
1997 and subsequent years until a new Registration Statement becomes
effective.
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REGISTRATION STATEMENT
ON
FORM S-8
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Incorporated by reference in this Registration Statement are the following
documents filed with the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Prospectus filed with the Commission under Rule
424(b) under the Securities Act of 1933, as amended, on March 4, 1997;
and
(b) The description of the Registrant's common stock, par value $.01 per
share, set forth in the section entitled "Description of Capital
Stock" in the Registrant's Registration Statement on Form SB-2, filed
with the Commission on July 12, 1996 (File No. 333-8061), including
any amendment or report filed for the purpose of updating such
information.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference herein 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 by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant is incorporated in Delaware. Under Section 145 of the
General Corporation Law of the State of Delaware (the "DGCL"), a Delaware
corporation generally has the power to indemnify its present and former
directors, officers, employees and agents against expenses and liabilities
incurred by them in connection with any action, suit or proceeding to which they
are, or are threatened to be made, a party by reason of their serving they are,
or are threatened to be made, a party by reason of their serving in those
positions so long as they acted in good faith and in a manner they reasonably
believed to be in, or not opposed to, the best interests of the company, and
with respect to any criminal action or proceeding, so long as they had no
reasonable cause to believe their conduct was unlawful. The statute expressly
provides that the power to indemnify authorized thereby is not exclusive of any
rights granted under any bylaw, agreement, vote of stockholders or disinterested
directors, or otherwise. The Amended and Restated Certificate of Incorporation
of the Registrant and Bylaws of the Registrant provide for indemnification of
present and former directors and officers of the Registrant and persons serving
as
3
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directors, officers, employees or agents of other corporations or entities at
the request of the Registrant, each to the fullest extent permitted by the DGCL.
Section 102(b)(7) of the DGCL provides that a certificate of incorporation
may contain a provision eliminating or limiting the personal liability of a
director to the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, provided that such provision shall not
eliminate or limit the liability of a director (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 (relating to liability for
unauthorized acquisitions or redemptions of, or dividends on, capital stock) of
the DGCL, or (iv) for any transactions from which the directors derived an
improper personal benefit. The Certificate of Incorporation of the Registrant
contains such a provision.
The Registrant intends to obtain insurance for the protection of its
directors and officers against claims asserted against them in their official
capacities. The Registrant also intends to enter into indemnification
agreements with certain of its directors and officers providing for the
foregoing.
The preceding discussion of the Amended and Restated Certificate of
Incorporation of the Registrant the Bylaws of the Registrant and the DGCL is not
intended to be exhaustive and is qualified in its entirety by reference to the
complete texts of the Amended and Restated Certificate of Incorporation of the
Registrant and they Bylaws of the Registrant and to the DGCL.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION
4.1 Amended and Restated Certificate of Incorporation of the
Registration (incorporated by reference to Exhibit 3.1 to the
Registrant's Registration Statement on Form SB-2 (File No.
333-8061)).
4.2 Amendment to Amended and Restated Certificate of Incorporation of
the Registrant (incorporated by reference to Exhibit 3.3 to the
Registrant's Registration Statement on Form SB-2 (File No.
333-8061)).
4.3 Bylaws of the Registrant (incorporated by reference to Exhibit
3.2 to the Registrant's Registration Statement on Form SB-2 (File
No. 333-8061)).
4.4 Specimen of common stock certificate of the Registrant
(incorporated by reference to Exhibit 4.1 to the Registrant's
Registration Statement on Form SB-2 (File No. 333-8061)).
5. Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in
their opinion filed as Exhibit 5).
4
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24.1 Power of Attorney (included on the signature page of this
Registration Statement).
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;
(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;
(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 information in the
registration statement; PROVIDED, HOWEVER, that paragraphs (a)(1)(i)
and (a)(1)(ii) do not apply if the registration statement is on Form
S-3 or Form S-8 and 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 the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial BONA FIDE offering thereof.
(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 of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial BONA FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the 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 is 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Irvine, State of California, on this 6th day of
March, 1997 .
AVIATION DISTRIBUTORS, INC.,
By: /s OSAMAH S. BAKHIT
-------------------------------
Osamah S. Bakhit
CHIEF EXECUTIVE OFFICER
POWER OF ATTORNEY
KNOWN TO ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Osamah S. Bakhit as such
person's true and lawful attorney-in-fact and agent, with the power of
substitution and resubstitution, for such person in any and all capacities
(including such person's capacity as a director and/or officer of Aviation
Distributors, Inc.), to sign any and all amendments to this Registration
Statement (including post-effective amendments), and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto such said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that such said attorney-in-fact and agent, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
NAME TITLE DATE
---- ----- ----
/s/ OSAMAH S. BAKHIT
- ------------------------ Chief Executive Officer, Pres- March 6, 1997
Osamah S. Bakhit ident and Director (Principal
Executive Officer)
/s/ MARK W. ASHTON
- ------------------------ Chief Financial Officer, Vice March 6, 1997
Mark W. Ashton President, Finance and Director
(Principal Financial Officer)
/s/ LAURA M. BIRGBAUER
- ------------------------ Treasurer (Principal March 6, 1997
Laura M. Birgbauer Accounting Officer)
/s/ BRUCE H. HAGLUND
- ------------------------ Secretary and Director March 6, 1997
Bruce H. Haglund
/s/ DANIEL C. LEWIS
- ------------------------ Director March 6, 1997
Daniel C. Lewis
/s/ WILLIAM T. WALKER, JR.
- ------------------------ Director March 6, 1997
William T. Walker, Jr.
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION OF EXHIBIT PAGE NO.
4.1 Amended and Restated Certificate of Incorporation
of the Registrant (incorporated by reference to
Exhibit 3.1 to the Registrant's Registration
Statement on Form SB-2 (File No. 333-8061)).
4.2 Amendment to Amended and Restated Certificate of
Incorporation of the Registrant (incorporated by
reference to Exhibit 3.3 to the Registrant's
Registration Statement on Form SB-2
(File No. 333-8061)).
4.3 Bylaws of the Registrant (incorporated by reference
to Exhibit 3.2 to the Registrant's Registration
Statement on Form SB-2 (File No. 333-8061)).
4.4 Specimen of common stock certificate of the Registrant
(incorporated by reference to Exhibit 4.1 to the
Registrant's Registration Statement on Form SB-2
(File No. 333-8061)).
5. Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in their opinion filed as Exhibit 5).
24.1 Power of Attorney (included on the signature page of
this Registration Statement).
99.1 1996 Stock Option and Incentive Plan
99.2 Form of stock option agreement relating to options
granted under the 1996 Stock Option and Incentive Plan.
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Exhibit 5
[Letterhead of Skadden, Arps, Slate, Meagher & Flom LLP]
March 6, 1997
Aviation Distributors, Inc.
1 Wrigley Drive
Irvine, California 92618
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form S-8
(the "Registration Statement") that you intend to file with the Securities and
Exchange Commission (the "Commission") in connection with the registration under
the Securities Act of 1933, as amended (the "Securities Act"), of 264,500 shares
(the "Shares") of common stock, par value $.01 per share ("Common Stock"), of
Aviation Distributors, Inc. (the "Company") to be issued by the Company under
the Aviation Distributors, Inc. 1996 Stock Option and Incentive Plan (the
"Plan").
In connection with this opinion, we have examined and are familiar with
originals or copies, certified or otherwise identified to our satisfaction, of
(i) the Plan, (ii) the Amended and Restated Certificate of Incorporation of the
Company, as presently in effect, and the By-laws of the Company, as presently in
effect (iii) copies of certain resolutions of the Board of Directors of the
Company relating to, among other things, the Plan, the Shares and the
Registration Statement, (iv) the form of specimen certificate representing the
Common Stock and (v) such other documents, certificates and records as we have
considered necessary or appropriate for purposes of this opinion. In our
examination, we have assumed the legal capacity of all natural persons, the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies and the authenticity of the originals of
such latter documents. As to any facts material to the opinion expressed
herein, we have relied upon oral or written statements and representations of
officers and other representatives of the Company and others.
We express no opinion as to the laws of any jurisdiction other than the
General Corporation Law of the State of Delaware.
Based upon and subject to the foregoing, we are of the opinion that, when
(i) the options are validly issued pursuant to the Plan and (ii) the
certificates representing the Shares in the form of the specimen thereof
examined by us have been manually signed by an authorized officer of the
transfer agent and register for the Common Stock and registered by such transfer
agent and registrar, the Shares, when issued upon exercise of options in
accordance with the terms of the Plan, will be validly issued, fully paid and
nonassessable.
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Aviation Distributors, Inc.
March 6, 1997
Page 2
We hereby consent to the filing of this opinion with the Commission as
Exhibit 5 to the Registration Statement. In giving this consent, we do not
thereby admit that we are in the category of persons whose consent is required
under Section 7 of the Securities Act or the rules and regulations of the
Commission.
Very truly yours,
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
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Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated February 12,
1997 (except with respect to the matter discussed in Note 17, as to which the
date is February 28, 1997) included in Aviation Distributors, Inc.'s
Registration Statement on Form SB-2 for the year ended December 31, 1996 and
to all references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Orange County, California
March 6, 1997
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