<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 17, 1999.
REGISTRATION NO. 333-_____________.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
AMERICAN AIRCARRIERS SUPPORT, INCORPORATED
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 52-2081515
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER IDENTIFICATION NO.)
OF INCORPORATION OR ORGANIZATION)
587 GREENWAY INDUSTRIAL DRIVE
LAKEMONT BUSINESS PARK
FORT MILL, SOUTH CAROLINA 29715
TELEPHONE: (803) 548-2160
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
AMERICAN AIRCARRIERS SUPPORT, INCORPORATED
1998 OMNIBUS STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
KARL F. BROWN
587 GREENWAY INDUSTRIAL DRIVE
LAKEMONT BUSINESS PARK
FORT MILL, SOUTH CAROLINA 29715
TELEPHONE: (803) 548-2160
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPY TO:
ROBERT W. WALTER, ESQ.
BERLINER ZISSER WALTER & GALLEGOS, P.C.
1700 LINCOLN STREET, SUITE 4700
DENVER, COLORADO 80203
TELEPHONE: (303) 830-1700
------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================================
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE
==============================================================================================================================
<S> <C> <C> <C> <C>
COMMON STOCK(2).................. 273,250 $6.00 $1,639,500 $456.00
- ------------------------------------------------------------------------------------------------------------------------------
COMMON STOCK(2).................. 120,000 6.60 792,000 220.00
- ------------------------------------------------------------------------------------------------------------------------------
COMMON STOCK(2).................. 200,000 9.625 1,925,000 535.00
- ------------------------------------------------------------------------------------------------------------------------------
COMMON STOCK(2).................. 306,750 8.875 2,722,407 757.00
- ------------------------------------------------------------------------------------------------------------------------------
TOTAL(2)......................... 900,000 $7,078,907 $1,968.00
==============================================================================================================================
</TABLE>
(1) ESTIMATED SOLELY FOR THE PURPOSE OF CALCULATING THE REGISTRATION FEE
PURSUANT TO RULE 457(h). REPRESENTS THE AVERAGE OF THE HIGH AND LOW PRICES
FOR THE COMMON STOCK AS QUOTED ON THE NASDAQ NATIONAL MARKET ON SEPTEMBER
10, 1999.
(2) PURSUANT TO RULE 416, INCLUDES SUCH INDETERMINATE NUMBER OF ADDITIONAL
SHARES OF COMMON STOCK AS MAY BE REQUIRED TO BE ISSUED PURSUANT TO THE
ANTI-DILUTION PROVISIONS OF THE STOCK OPTION PLAN IN THE EVENT OF A STOCK
SPLIT, STOCK DIVIDEND OR SIMILAR EVENT.
================================================================================
<PAGE> 2
PART I
INFORMATION NOT REQUIRED IN THE REGISTRATION STATEMENT
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed with the Securities and
Exchange Commission are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-KSB filed pursuant to
Section 13(a) or 15(d) under the Securities Exchange Act of
1934, as amended, on March 16, 1999 and amended on June 3, 1999,
which Annual Report contains audited financial statements for
the Company's fiscal year ended December 31, 1998.
(b) All other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since the end of the fiscal year covered by the
Company's Annual Report referred to in (a) above; and
(c) The description of Common Stock contained in the Company's
Registration Statement on Form 8-A filed May 18, 1998 under the
Exchange Act, which Form 8-A incorporated by reference the
description of the Company's capital stock contained in the
Company's Registration Statement on Form SB-2 (S.E.C. File No.
333-48497), as filed with the Commission under the Securities
Act of 1933, as amended, and declared effective May 28, 1998.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 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 herein by reference and to be part hereof from the date of
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the securities offered will be passed upon for the
Company by Berliner Zisser Walter & Gallegos, P.C., Denver, Colorado. A partner
of such firm holds options to acquire 20,000 shares of Common Stock of the
Company and owns 17,000 shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Pursuant to the provisions of the Delaware General Corporation Law,
the Company has adopted provisions in its Certificate of Incorporation which
provide that directors of the Company shall not be personally liable for
monetary damages to the Company or its stockholders for a breach of fiduciary
duty as a director, except for liability as a result of (i) a breach of the
director's duty of loyalty to the Company or its stockholders; (ii) acts or
omissions not in good faith or which involve intentional misconduct or
<PAGE> 3
knowing violation of law; (iii) an act related to the unlawful stock repurchase
or payment of a dividend under Section 174 of Delaware General Corporation Law;
or (iv) transactions from which the director derived an improper personal
benefit. Such limitation of liability does not affect the availability of
equitable remedies such as injunctive relief or rescission.
The Company's Certificate of Incorporation states that the Company's
officers, directors, incorporator, employees and agents are entitled to be
indemnified by the Company to the full extent permitted under Delaware law. The
Company intends to enter into separate indemnification agreements with its
directors and officers which may, in some cases, be broader than the specific
indemnification provisions contained in the Delaware General Corporation Law.
The indemnification agreements may require the Company, among other things, to
indemnify such officers and directors against certain liabilities that may arise
by reason of their status or service as directors or officers (other than
liabilities arising from willful misconduct of a culpable nature), to advance
their expenses incurred as a result of any proceeding against them as to which
they could be indemnified, and to obtain directors' and officers' insurance if
available on reasonable terms.
At present, there is no pending litigation or proceeding involving a
director, officer, employee or agent of the Company where indemnification will
be required or permitted. The Company is not aware of any threatened litigation
or proceeding which may result in a claim for such indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
<TABLE>
<S> <C>
* 4.1. Form of specimen certificate for Common Stock of the Company.
* 4.1.2 Form of Representative's Warrant Agreement to Cruttenden Roth Incorporated.
* 4.2. Registration Rights Agreement between the Company and M. Mike Evans.
* 4.3. Registration Rights Agreement between the Company and Condor Flight Spares, Inc.
* 4.4. Registration Rights Agreement between the Company and American Jet Engines Services, Inc.
** 5. Opinion of Berliner Zisser Walter & Gallegos, P.C., regarding legality of the securities
covered by this Registration Statement.
** 10.3.2 American Aircarriers Support, Incorporated 1998 Omnibus Stock Option Plan, as amended.
15. Not applicable.
** 23.1. The consent of Berliner Zisser Walter & Gallegos, P.C., to the use of its opinion with
respect to the legality of the securities covered by this Registration Statement is
included in Exhibit 5.
** 23.2. Consent of Cherry, Bekaert & Holland, L.L.P., independent certified public accountants.
24. Not applicable.
</TABLE>
- -----------------------------
* Incorporated by reference from the Company's Registration Statement on
Form SB-2 (S.E.C. File No. 333-48497).
** Filed herewith.
<PAGE> 4
ITEM 9. UNDERTAKINGS.
(a) Rule 415.
The undersigned small business issuer hereby undertakes that it will:
(1) File, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to:
(iii) Include any additional or changed material information
on the plan of distribution.
(2) For determining liability under the Securities Act of 1933
(the "Securities Act"), treat each post-effective amendment as a new
registration statement of securities offered, and the offering of the
securities at that time to be the initial bona fide offering.
(3) File a post-effective amendment to remove from registration
any of the securities that remain unsold at the end of the offering.
(b) Warrants and rights offerings.
Not applicable.
(h) Indemnification.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the small
business issuer pursuant to the foregoing provisions, or otherwise, the small
business issuer 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 small
business issuer of expenses incurred or paid by a director, officer or
controlling person of the small business issuer 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 small business
issuer 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.
<PAGE> 5
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 Fort Mill, State of South Carolina, on September 16,
1999.
AMERICAN AIRCARRIERS SUPPORT, INCORPORATED
By: /s/ Karl F. Brown
----------------------------------------
Karl F. Brown, Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Karl F. Brown Chairman of the Board and September 16, 1999
- ------------------------------- Chief Executive Officer
Karl F. Brown (Principal Executive Officer)
/s/ Joseph E. Civiletto President, Chief Operating September 16, 1999
- ------------------------------- Officer and Director
Joseph E. Civiletto
/s/ Elaine T. Rudisill Chief Financial Officer (Principal September 16, 1999
- ------------------------------- Financial and Accounting Officer)
Elaine T. Rudisill
/s/ David M. Furr Director September 16, 1999
- -------------------------------
David M. Furr
/s/ Pamela K. Clement Director September 16, 1999
- -------------------------------
Pamela K. Clement
/s/ Director
- -------------------------------
James T. Comer, III
/s/ Anton K. Khoury Director September 16, 1999
- -------------------------------
Anton K. Khoury
/s/ Michael F. Evans Director September 16, 1999
- -------------------------------
Michael F. Evans
</TABLE>
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<S> <C>
* 4.1. Form of specimen certificate for Common Stock of the Company.
* 4.1.2 Form of Representative's Warrant Agreement to Cruttenden Roth Incorporated.
* 4.2. Registration Rights Agreement between the Company and M. Mike Evans.
* 4.3. Registration Rights Agreement between the Company and Condor Flight Spares, Inc.
* 4.4. Registration Rights Agreement between the Company and American Jet Engines Services, Inc.
** 5. Opinion of Berliner Zisser Walter & Gallegos, P.C., regarding legality of the securities
covered by this Registration Statement.
** 10.3.2 American Aircarriers Support, Incorporated 1998 Omnibus Stock Option Plan, as amended.
15. Not applicable.
** 23.1. The consent of Berliner Zisser Walter & Gallegos, P.C., to the use of its opinion with
respect to the legality of the securities covered by this Registration Statement is
included in Exhibit 5.
** 23.2. Consent of Cherry, Bekaert & Holland, L.L.P., independent certified public accountants.
24. Not applicable.
</TABLE>
- -----------------------------
* Incorporated by reference from the Company's Registration Statement on
Form SB-2 (S.E.C. File No. 333-48497).
** Filed herewith.
<PAGE> 1
EXHIBIT 5
[BERLINER ZISSER WALTER & GALLEGOS, P.C. LETTERHEAD]
September 17, 1999
American Aircarriers Support, Incorporated
587 Greenway Industrial Drive
Lakemont Business Park
Fort Mill, South Carolina 29715
Re: Registration Statement on Form S-8 Covering 900,000
Shares of Common Stock Reserved for Issuance Under
the American Aircarriers Support, Incorporated 1998 Omnibus Stock
Option Plan
Gentlemen:
We have acted as counsel to American Aircarriers Support, Incorporated,
a Delaware corporation (the "Company"), in connection with the proposed offering
by the Company of 900,000 shares of Common Stock (the "Shares") reserved for
issuance under the Company's 1998 Omnibus Stock Option Plan (the "Plan") in
accordance with the registration provisions of the Securities Act of 1933, as
amended.
In such capacity, we have examined, among other documents, the
Registration Statement on Form S-8 expected to be filed by the Company with the
Securities and Exchange Commission on or about September 17, 1999 (as the same
may be amended from time to time, the "Registration Statement"), covering the
offering of the Shares.
Based on the foregoing and on such further examination as we have
deemed relevant and necessary, we are of the opinion that:
1. The Company is a corporation duly organized and validly existing
under the laws of the State of Delaware.
2. The Shares have been legally and validly authorized under the
Certificate of Incorporation of the Company, as amended, and on receipt of the
consideration required by, and when issued in accordance with the terms and
conditions of the Plan, the Shares will constitute duly and validly issued,
outstanding, and fully paid and nonassessable securities of the Company.
We hereby consent to the use of our name and to the references to our
firm in the Prospectus forming a part of the Registration Statement, and to the
filing of a copy of this opinion as Exhibit No. 5 thereto.
Very truly yours,
BERLINER ZISSER WALTER & GALLEGOS, P.C.
<PAGE> 1
EXHIBIT 10.3.2
AMERICAN AIRCARRIERS SUPPORT, INCORPORATED
1998 OMNIBUS STOCK OPTION PLAN
1. PURPOSE
The purpose of this Plan is to promote the interest of the Corporation
and its stockholders and the Corporation's success by providing a method whereby
a variety of equity-based incentive and other Awards may be granted to Employees
and Directors of the Corporation and its Subsidiaries and to selected
Consultants. 2. DEFINITIONS
A. "AWARD" means any form of stock option, restricted stock,
Performance Unit, Performance Share, stock appreciation right, dividend
equivalent or other incentive award granted under the Plan.
B. "AWARD NOTICE" means any written notice from the Corporation to a
Participant or agreement between the Corporation and a Participant that
establishes the terms applicable to an Award.
C. "BOARD OF DIRECTORS" means the Board of Directors of the
Corporation.
D. "CODE" means the Internal Revenue Code of 1986, as amended. Any
reference to the Code includes the regulations promulgated pursuant to the Code.
E. "COMMITTEE" means the Compensation Committee of the Board of
Directors, or such other committee designated by the Board of Directors, which
is authorized to administer the Plan under Section 3 hereof. The number of
persons who shall serve on the Committee shall be specified from time to time by
the Board of Directors; however, in no event shall there be fewer than two
members of the Committee.
F. "COMMON STOCK" means Common Stock of the Corporation, $.001 par
value per share.
<PAGE> 2
G. "CONSULTANT" means any individual who renders services directly to
the Corporation or a Subsidiary or to the Corporation's customers as defined and
designated from time to time by the Committee.
H. "CORPORATION" means American Aircarriers Support, Incorporated, a
Delaware corporation.
I. "DIRECTOR" means a member of the Board of Directors or a member of
the Board of Directors of a Subsidiary.
J. "EMPLOYEE" means any employee of the Corporation or a Subsidiary and
also includes non-employees to whom an offer of employment has been extended.
K. "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
L. "FAIR MARKET VALUE" means, "on any given date (i) if the Common
Stock is traded in the over-the-counter market and not in The Nasdaq Stock
Market or on any national securities exchange, the per share closing bid prices
of the Common Stock as reported by Nasdaq or an equivalent generally accepted
reporting service, (ii) if the Common Stock is traded in The Nasdaq Stock Market
or on a national securities exchange, the per share closing price of the Common
Stock on which it is so listed, as the case may be, (iii) if trading in the
Common Stock is not reported by Nasdaq, the lowest per share bid price of the
Common Stock as reported in the "pink sheets" published by National Quotation
Bureau, Incorporated, (iv) if no such reported price is reported for such date
pursuant to (i), (ii) or (iii) above, then the bid, closing sale or bid price,
respectively, on the first preceding day on which so reported, or (v) if the
Common Stock is not so traded and/or reported for a 30-day period immediately
preceding the date for determining Fair Market Value, the Committee shall, in
good faith and in conformity with the requirements of Section 422 of the Code,
establish a method for determining the Fair Market Value."
M. "PARTICIPANT" means any individual to whom an Award is granted under
the Plan.
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<PAGE> 3
N. "PERFORMANCE SHARE" means a Unit expressed in terms of, or valued by
reference to, a share of Common Stock.
O. "PERFORMANCE UNIT" means a Unit valued by reference to designated
criteria established by the Committee, other than Common Stock.
P. "PLAN" means this Plan, which shall be known as American Aircarriers
Support, Incorporated 1998 Omnibus Stock Option Plan.
Q. "RULE 16b-3" means Rule 16b-3 promulgated under the Exchange Act, or
any successor rule.
R. "SUBSIDIARY" means a corporation or other business entity (i) of
which the Corporation directly or indirectly has an ownership interest of 50% or
more, or (ii) of which it has a right to elect or appoint 50% or more of the
board of directors or other governing body. A Subsidiary shall include both
currently owned Subsidiaries as well as any Subsidiary hereafter acquired.
S. "UNIT" means a bookkeeping entry used by the Corporation to record
the grant of an Award until such time as the Award is paid, cancelled, forfeited
or terminated.
3. ADMINISTRATION
A. The Plan shall be administered by the Committee. The Committee shall
have the authority to:
(i) construe and interpret the Plan;
(ii) promulgate, amend and rescind rules relating to the
implementation of the Plan;
(iii) make all determinations necessary or advisable for the
administration of the Plan, including the selection of
Employees, Consultants and affiliated individuals who
shall be granted Awards, the number of shares of Common
Stock or Units to be subject to each Award, the Award
price, if any, the vesting or duration of Awards, and
the designation of stock options as incentive stock
options or non-qualified stock options;
(iv) determine the disposition of Awards in the event of a
Participant's divorce or dissolution of marriage;
-3-
<PAGE> 4
(v) determine whether Awards will be granted alone or in
combination or in tandem with other Awards;
(vi) determine whether cash will be paid or Awards will be
granted in replacement of, or as alternatives to, other
grants under the Plan or any other incentive or
compensation plan of the Corporation, a Subsidiary or an
acquired business unit.
B. Subject to the requirements of applicable law, the Committee may
correct any defect, supply any omission, or reconcile any inconsistency in the
Plan, any Award, or any Award Notice; take any and all other actions it deems
necessary or advisable for the proper administration of the Plan; designate
persons other than members of the Committee to carry out its responsibilities;
and prescribe such conditions and limitations as it may deem appropriate; except
that the Committee may not delegate its authority with regard to the selection
for participation of, or the granting of Awards to, persons under Section 16 of
the Exchange Act. Any determination, decision, or action of the Committee in
connection with the construction, interpretation, administration, or application
of the Plan shall be final, conclusive and binding upon all persons validly
claiming under or through persons participating in the Plan.
C. The Committee may at any time, and from time to time amend or cancel
any outstanding Award, but only with the consent of the person to whom the Award
was granted. Any Award granted may be converted, modified, forfeited or
canceled, prospectively or retroactively, in whole or in part, by the Committee
in its sole discretion. However, no such action may impair the rights of any
person to whom the Award was granted without his or her consent. The Committee
may, in its sole discretion, in whole or in part, waive any restrictions or
conditions applicable to, or accelerate the vesting of, any Award.
4. ELIGIBILITY
A. Any Employee is eligible to become a Participant in the Plan.
-4-
<PAGE> 5
B. Directors who are not Employees of the Corporation or a Subsidiary
shall receive Awards in accordance with Section 7.
C. Consultants who are not Directors of the Corporation shall be
eligible to receive Awards in accordance with Section 8.
5. SHARES AVAILABLE
Subject to Section 16 of the Plan, the maximum number of shares of
Common Stock issuable on exercise of options (or other Awards) granted under the
Plan (including incentive stock options) shall be 900,000. Notwithstanding the
foregoing sentence, the maximum number of shares of Common Stock that may be
awarded under this Plan in the form of restricted stock awards pursuant to
Section 10 may be limited by the Committee. If an option or SAR expires or is
terminated, surrendered or canceled without have been fully exercised, if
restricted stock or Performance Shares are forfeited, or if any other grant
results in any shares not being issued, the unused shares covered by any such
Award shall again be available for grant under the Plan to any Participant who
is not subject to Section 16 of the Exchange Act.
6. TERM
The Plan shall become effective on February 9, 1998. No Award shall be
granted pursuant to the Plan on or after the tenth anniversary date of such
date, but Awards granted prior to such tenth anniversary may extend beyond that
date to the date(s) specified in the agreement(s) covering such Awards.
7. AWARDS TO NON-EMPLOYEE DIRECTORS
Options granted to Directors who are not Employees of the Corporation
or a Subsidiary shall be subject to the following terms:
(i) The exercise price shall be not less than 85% of the
Fair Market Value of the underlying Shares of Common
Stock on the date of the grant, payable in accordance
with the alternatives stated in Section 9.B.(ii) of the
Plan;
-5-
<PAGE> 6
(ii) The term of the options shall be not more than ten (10)
years;
(iii) The options shall be subject to Section 14 of the Plan.
8. AWARDS TO CONSULTANTS
Consultants shall receive Awards in accordance with the following
terms:
A. No Awards of incentive stock options shall be made to Consultants.
B. Awards of non-qualified stock options to such Consultants shall be
subject to the following terms:
(i) The exercise price shall be not less than 85% of the
Fair Market Value of the underlying shares of Common
Stock on the date of the grant, payable in accordance
with the alternatives stated in Sections 9.B(ii) and
(iii) of the Plan;
(ii) The term of the options shall be not more than ten (10)
years;
(iii) The options shall be subject to Section 14 of the Plan.
9. STOCK OPTIONS
A. Awards may be granted in the form of stock options. Stock options
may be incentive stock options within the meaning of Section 422 of the Code or
non-qualified stock options (i.e., stock options which are not incentive stock
options).
B. Subject to Section 9.C. relating to incentive stock options, options
shall be in such form and contain such terms as the Committee deems appropriate.
While the terms of options need not be identical, each option shall be subject
to the following terms:
(i) The exercise price shall be the price set by the
Committee but may not be less than 85% of the Fair
Market Value of the underlying shares of Common Stock on
the date of the grant.
(ii) The exercise price shall be paid in cash (including
check, bank draft, or money order), or at the discretion
of the Committee, all or part of the purchase price may
be paid by delivery of the optionee's full recourse
promissory note, delivery of Common Stock already owned
by the Participant for at least six (6) months and
valued at its Fair Market Value, by the surrender of all
or part of an Award (including the Award being
exercised), in other property, rights and credits,
deemed acceptable by the Committee, or any combination
of the
-6-
<PAGE> 7
foregoing methods of payment. In the case of incentive
stock options, the terms of payment shall be determined
at the time of grant.
(iii) Promissory notes given as payment of the exercise price,
if permitted by the Committee, shall contain such terms
as set by the Committee which are not inconsistent with
the following: the unpaid principal shall bear interest
at a rate set from time to time by the Committee;
payments of principal and interest shall be made no less
frequently than annually; no part of the note shall be
payable later than ten (10) years from the date of
purchase of the underlying shares of Common Stock; and
the optionee shall give such security as the Committee
deems necessary to ensure full payment.
(iv) The term of an option may not be greater than ten (10)
years from the date of the grant.
(v) Neither a person to whom an option is granted nor such
person's legal representative, heir, legatee or
distributee shall be deemed to be the holder of, or to
have any of the rights of a holder or owner with respect
to, any shares of Common Stock subject to such option
unless and until such person has exercised the option.
C. The following special terms shall apply to grants of incentive stock
options:
(i) Subject to Section 9.C.(ii) of the Plan, the exercise
price of each incentive stock option shall not be less
than 100% of the Fair Market Value of the underlying
shares of Common Stock on the date of the grant.
(ii) No incentive stock option shall be granted to any
Employee who directly or indirectly owns stock
possessing more than 10% of the total combined voting
power of all classes of stock of the Corporation, unless
at the time of such grant the exercise price of the
option is at least 110% of the Fair Market Value of the
underlying shares of Common Stock subject to the option
and such option is not exercisable after the expiration
of five (5) years from the date of the grant.
(iii) No incentive stock option shall be granted to a person
in his capacity as a Employee of a Subsidiary if the
Corporation has less than a 50% ownership interest in
such Subsidiary.
(iv) Options shall contain such other terms as may be
necessary to qualify the options granted therein as
incentive stock options pursuant to Section 422 of the
Code, or any successor statute, including that such
incentive stock options shall be granted only to
Employees, that such incentive stock options are
nontransferrable, and which shall conform to all other
requirements of the Code.
10. RESTRICTED STOCK
A. Awards may be granted in the form of restricted stock.
-7-
<PAGE> 8
B. Grants of restricted stock shall be awarded in exchange for
consideration in an amount determined by the Committee. The price, if any, of
such restricted stock shall be paid in cash, or at the discretion of the
Committee, all or part of the purchase price may be paid by delivery of the
Participant's full recourse promissory note, delivery of Common Stock already
owned by the Participant for at least six (6) months and valued at its Fair
Market Value, or any combination of the foregoing methods of payment, provided
no less than the par value of the stock is paid in cash, and the Participant has
rendered no less than three (3) months prior service to the Corporation.
C. Restricted stock awards shall be subject to such restrictions as the
Committee may impose and may include, if the Committee shall so determine,
restrictions on transferability and restrictions relating to continued
employment.
D. The Committee shall have the discretion to grant to a Participant
receiving restricted shares all or any of the rights of a stockholder while such
shares continue to be subject to restrictions.
11. PERFORMANCE UNITS AND PERFORMANCE SHARES
A. Awards may be granted in the form of Performance Units or
Performance Shares. Awards of Performance Units and Performance Shares shall
refer to a commitment by the Corporation to make a distribution to the
Participant or to his beneficiary depending on (i) the attainment of the
performance objective(s) and other conditions established by the Committee and
(ii) the base value of the Performance Unit or Performance Shares, respectively,
as established by the Committee.
B. Settlement of Performance Units and Performance Shares may be in
cash, in shares of Common Stock, or a combination thereof. The Committee may
designate a method of converting Performance Units into Common Stock, including,
but not limited to, a method based on the Fair Market Value of Common Stock over
a series of consecutive trading days.
-8-
<PAGE> 9
C. Participants shall not be entitled to exercise any voting rights
with respect to Performance Units or Performance Shares, but the Committee in
its sole discretion may attach dividend equivalents to such Awards.
12. STOCK APPRECIATION RIGHTS
A. Awards may be granted in the form of stock appreciation rights.
Stock appreciation rights may be awarded in tandem with a stock option, in
addition to a stock option, or may be free-standing and unrelated to a stock
option.
B. A stock appreciation right entitles the Participant to receive from
the Corporation an amount equal to the positive difference between (i) the Fair
Market Value of Common Stock on the date of exercise of the stock appreciation
right and (ii) the grant price or some other amount as the Committee may
determine at the time of grant (but not less than the Fair Market Value of
Common Stock on the date of grant).
C. With respect to persons subject to Section 16 of the Exchange Act, a
stock appreciation right may only be exercised during a period which (i) begins
on the third business day following a date when the Corporation's quarterly
summary statement of sales and earnings is released to the public and (ii) ends
on the 12th business day following such date. This Section 12.C shall not apply
if the exercise occurs automatically on the date when a related stock option
expires.
D. Settlement of stock appreciation rights may be in cash, in shares of
Common Stock, or a combination thereof, as determined by the Committee.
13. DEFERRAL OF AWARDS
At the discretion of the Committee, payment of an Award, dividend
equivalent, or any portion thereof may be deferred until a time established by
the Committee. Deferrals shall be made in accordance with guidelines established
by the Committee to ensure that such deferrals comply with applicable
requirements of the Code and its regulations. Deferrals shall be initiated by
the delivery of
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a written, irrevocable election by the participant to the Committee or its
nominee. Such election shall be made prior to the date specified by the
Committee. The Committee may also (A) credit interest equivalents on cash
payments that are deferred and set the rates of such interest equivalents and
(B) credit dividends equivalents on deferred payments denominated in the form of
shares of Common Stock.
14. EXERCISE OF STOCK OPTIONS OR AWARDS UPON TERMINATION OF EMPLOYMENT
OR SERVICES.
A. Upon cessation of service as a Non-Employee Director or Consultant,
for whatever reason, any and all stock options issuable to such persons for
services rendered, but which have not been granted as of the date of cessation
of service, for services rendered by the Non-Employee Director or Consultant
since the grant date immediately preceding the date of cessation of service,
shall be promptly granted and shall remain exercisable until the expiration of
the term of the option. In addition, all stock options granted under Sections 7
and 8 and held by the Non-Employee Director or Consultant as of the date of
cessation of service may be exercised by the Non-Employee Director, or
Consultant or his/her heirs or legal representatives until the expiration of the
option term. Subject to Section 22, stock options granted to other Participants
under Section 9 may permit the exercise of options upon the Participant's
termination of employment within the following periods, or such shorter periods
as determined by the Committee at the time of grant:
(i) If on account of death, within twelve (12) months of
such event by the person or persons to whom the
Participant's rights pass by will or the laws of descent
or distribution.
(ii) If on account of retirement (as defined from time to
time by Corporation policy), stock options may be
exercised within three (3) months of such termination.
(iii) If on account of resignation, options may be exercised
within one (1) month of such termination.
(iv) If for cause (as defined from time to time by
Corporation policy), no unexercised option shall be
exercisable to any extent after termination.
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(v) If on account of the taking of a leave of absence for
the purpose of serving the government or the country in
which the principal place of employment of the
Participant is located, either in a military or a
civilian capacity, or for such other purpose or reason
as the Committee may approve, a Participant shall not be
deemed during the period of any such absence alone, to
have terminated his service, except as the Committee may
otherwise expressly provide.
(vi) If on account of disability, within one year following
the disability of the Participant.
(vii) If for any reason other than death, retirement,
resignation, cause, or disability, options may be
exercised within three (3) months of such termination.
B. An unexercised option shall be exercisable only to the extent that
such option was exercisable on the date the Participant's employment or service
terminated. Notwithstanding the foregoing, and except as provided in Section
14.A. above, terms relating to the exercisability of options may be amended by
the Committee before or after such termination, except in respect to options
granted under Section 7.
C. In no case may an unexercised option be exercised to any extent by
anyone after expiration of its term.
D. To the extent any Award other than stock options is exercisable by a
Participant, such Award shall be exercisable only until termination (in the case
of Employees only) or within the time periods specified in A(i) to A(vii) above.
In the case of a non-Employee Participant, such Award will be exercisable in
accordance with the terms thereof unless the Committee has required continued
service to the Corporation or a Subsidiary as a condition to the exercise of an
Award, in which event the exercise of an Award following termination of services
by a non-Employee Participant shall be as provided for by the Committee.
15. ASSIGNABILITY
The rights of a Participant under the Plan shall be assignable by such
Participant, by operation of law or otherwise. No Participant may create a lien
on any funds, securities, rights or other property
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to which such Participant may have an interest under the Plan, or which is held
by the Corporation for the account of the Participant under the Plan.
16. ADJUSTMENT OF SHARES AVAILABLE
The Committee shall make appropriate and equitable adjustments in the
shares of Common Stock available for future Awards and the number of shares of
Common Stock covered by unexercised, unvested or unpaid Awards upon the
subdivision of the outstanding shares of Common Stock; the declaration of a
dividend payable in Common Stock; the declaration of a dividend payable in a
form other than Common Stock in an amount that has a material effect on the
price of the shares of Common Stock; the combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise) into a
lesser number of shares of Common Stock; a recapitalization; or a similar event.
17. PAYMENT OF WITHHOLDING TAXES
As a condition to receiving or exercising an Award, as the case may be,
the Participant shall pay to the Corporation or the employer Subsidiary the
amount of all applicable Federal, state, local and foreign taxes required by law
to be paid or withheld relating to receipt or exercise of the Award.
Alternatively, the Corporation may withhold shares of Common Stock with an
aggregate Fair Market Value equal to such withholding taxes, from any Award in
shares of Common Stock, to the extent the withholding is required by law. The
Corporation may also accept delivery of Common Stock already owned by the
Participant for at least six (6) months and valued at its Fair Market Value. The
Corporation also may deduct such withholding taxes from any Award paid in cash.
18. AMENDMENTS
The Board of Directors may amend the Plan at any time and from time to
time, subject to the receipt of stockholder approval where required by Rule
16b-3, by the Code, by the Nasdaq National Market or other exchange regulations
or by state corporation law. Rights and obligations under any
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Award granted before amendment of the Plan shall not be materially altered or
impaired adversely by such amendment, except with consent of the person to whom
the Award was granted.
19. REGULATORY APPROVALS AND LISTINGS
Notwithstanding any other provision in the Plan, the Corporation shall
have no obligation to issue or deliver certificates for shares of Common Stock
under the Plan prior to (A) obtaining approval from any governmental agency
which the Corporation determines is necessary or advisable, (B) admission of
such shares to listing on the stock exchange on which the Common Stock may be
listed, and (C) completion of any registration or other qualification of such
shares under any state or Federal law or ruling of any governmental body which
the Corporation determines to be necessary or advisable.
20. NO RIGHT TO CONTINUED EMPLOYMENT OR GRANTS
Participation in the Plan shall not give any Employee any right to
remain in the employ of the Corporation or any Subsidiary. Further, the adoption
of this Plan shall not be deemed to give any Employee or other individual the
right to be selected as a Participant or to be granted an Award.
21. NO RIGHT, TITLE, OR INTEREST IN CORPORATION ASSETS
No Participant shall have any rights as a stockholder of the
Corporation until Participant acquires an unconditional right under an Award to
have shares of Common Stock issued to such Participant. In the case of a
recipient of a stock option, the unconditional right to have shares of Common
Stock issued to such Participant shall be defined as the date upon which the
Participant has exercised the stock option and tendered valid consideration to
the Corporation for the exercise thereof. To the extent any person acquires a
right to receive payments from the Corporation under this Plan, such rights
shall be no greater than the rights of an unsecured creditor of the Corporation.
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22. SPECIAL PROVISION PERTAINING TO PERSONS SUBJECT TO SECTION 16
Notwithstanding any other item of this Plan, the following shall apply
to persons subject to Section 16 of the Exchange Act, except in the case of
death or disability or unless Section 16 shall be amended to provide otherwise
than as described below, in which event this Plan shall be amended to conform to
Section 16, as amended:
A. Restricted stock or other equity securities (within the meaning used
in Rule 16b-3 of the Exchange Act or any successor rule) offered pursuant to
this Plan must be held for at least six (6) months from the date of grant; and
B. At least six (6) months must elapse from the date of acquisition of
any stock option, Performance Unit, Performance Share, stock appreciation right
or other derivative security (within the meaning used in Rule 16b-3 of the
Exchange Act or any successor rule) issued pursuant to the Plan to the date of
disposition of such derivative security (other than upon exercise or conversion)
or its underlying equity security.
23. INDEMNIFICATION
In addition to such other rights of indemnification as they may have as
Directors, the members of the Board of Directors or the Committee administering
the Plan shall be indemnified by the Corporation against reasonable expenses,
including attorneys' fees, actually and necessarily incurred in connection with
the defense of any action, suit or proceeding, or in connection with any appeal
therein, to which they or any of them may be a party by reason of any action
taken or failure to act under or in connection with the Plan or any Award
granted thereunder, and against all amounts paid by them in settlement thereof
(provided such settlement is approved by legal counsel selected by the
Corporation) or paid by them in satisfaction of a judgment in any such action,
suit or proceeding, except in relation to matters as to which it shall be
adjudged in such action, suit or proceeding that such member is liable for
negligence or misconduct in the performance of his duties; provided that
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within 60 days after institution of any such action, suit or proceeding, the
member shall in writing offer the Corporation the opportunity, at its own
expense, to handle and defend the same.
24. MERGER, REORGANIZATION, EXCHANGE OR SALE OF ASSETS
In the event the Company enters into an agreement providing for the
merger of the Company into another corporation, an exchange of shares with
another corporation, the reorganization of the Company or the sale of
substantially all of the Company's assets, any Awards in the form of unvested
stock options shall become immediately vested and exercisable as of the date of
such merger agreement, exchange agreement, reorganization or sale agreement.
Upon consummation of the merger, exchange, reorganization or sale of assets,
each vested stock option, Performance Unit, Performance Share and stock
appreciation right shall either be assumed by the successor corporation or, if
not so assumed, the successor corporation shall substitute a vested stock
option, Performance Unit, Performance Share or stock appreciation right for each
outstanding vested stock option, Performance Unit, Performance Share and stock
appreciation right on substantially identical terms to the terms of outstanding
Awards in this form.
25. GOVERNING LAW
The Plan shall be governed by and construed in accordance with the laws
of the State of Delaware.
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EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of American Aircarriers Support, Incorporated, of our report dated
January 29, 1999 (except for Note 9 as to which the date is March 4, 1999) on
the financial statements for the years ended December 31, 1998 and 1997
appearing in the Annual Report on Form 10-KSB of American Aircarriers Support,
Incorporated filed on March 16, 1999 and amended on June 3, 1999.
/s/ Cherry, Bekaert & Holland, L.L.P.
Charlotte, North Carolina
September 16, 1999
