<PAGE> 1
As filed with the Securities and Exchange Commission on August 31, 1998
Registration No. 33-72602
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------
AVIALL, INC.
(Exact name of registrant as specified in its charter)
2075 DIPLOMAT DRIVE
DALLAS, TEXAS 75234-8999
(972) 406-2000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
DELAWARE 65-0433083
(State of incorporation) (I.R.S. Employer Identification Number)
AVIALL, INC. 1998 DIRECTORS STOCK PLAN
(Full title of the plan)
JEFFREY J. MURPHY, ESQ.
SENIOR VICE PRESIDENT, LAW AND HUMAN RESOURCES,
SECRETARY AND GENERAL COUNSEL
AVIALL, INC.
2075 DIPLOMAT DRIVE
DALLAS, TEXAS 75234-8999
(972) 406-2000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
WITH A COPY TO:
JAMES E. O'BANNON, ESQ.
JONES, DAY, REAVIS & POGUE
2300 TRAMMELL CROW CENTER
2001 ROSS AVENUE
DALLAS, TEXAS 75201
(214) 220-3939
-----------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================================
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to to be Price per Offering Registration
be Registered Registered(2) Share(3) Price(3) Fee(3)
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.01 per share(1). . . . 135,000 shares $ 13.15625 $ 1,776,094 $ 524
===================================================================================================================================
</TABLE>
(1) This Registration Statement also relates to rights to purchase Series A
Junior Participating Preferred Stock, par value $.01 per share, of Aviall,
Inc. ("Rights"). One Right will be issued together with and will attach to
each share of Common Stock, par value $.01 per share, of Aviall, Inc.
issued pursuant to the Aviall, Inc. 1998 Directors Stock Plan.
(2) Plus such indeterminate number of shares as may be issued to prevent
dilution resulting from stock splits, stock dividends or similar
transactions in accordance with Rule 416 under the Securities Act of 1933,
as amended.
(3) Computed in accordance with Rule 457(h)(1).
================================================================================
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
EXPLANATORY NOTE
The information called for by Part I of this Post-Effective Amendment
No. 1 to Registration Statement on Form S-8 (the "Registration Statement") is
included in the description of the Aviall, Inc. 1998 Directors Stock Plan (the
"Plan") to be delivered to persons eligible to participate in the Plan. Pursuant
to the Note to Part I of Form S-8, this information is not being filed with or
included in this Registration Statement.
I-1
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents (or, as applicable, the portions thereof
specified below) filed by Aviall, Inc. (the "Company") with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), are incorporated by reference, as of
their respective dates, in this Registration Statement: (i) the Company's Annual
Report on Form 10-K for the year ended December 31, 1997 (Commission File No.
1-12380); (ii) the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998; (iii) the Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1998; and (iv) the description of the Common Stock
contained in the Company's Registration Statement on Form 10, as amended, filed
with the Commission pursuant to Section 12(b) of the Exchange Act on December
22, 1993.
In addition, all documents hereafter filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all such securities then remaining unsold shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents.
Any statement contained herein or in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any subsequently filed document which also is
or is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable (securities to be offered are registered under Section
12 of the Exchange Act).
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("Delaware Law")
permits indemnification of the directors and officers of the Company involved in
a civil or criminal action, suit or proceeding, including, under certain
circumstances, suits by or in the right of the Company, for any expenses,
including attorney's fees, and (except in the case of suits by or in the right
of the Company), any liabilities which they may have incurred in consequences of
such action, suit or proceeding under conditions stated in said Section.
Article XI ("Article XI") of the Company's Restated Certificate of
Incorporation (the "Certificate") limits the personal liability of the Company's
directors to the Company or its stockholders for monetary damages for breach of
fiduciary duty. In addition, Article VI ("Article VI") of the Company's By-Laws
(the "By-Laws") defines and clarifies the rights of certain individuals,
including the Company's directors and officers, to indemnification by the
Company against personal liability or expenses incurred by them as a result of
certain litigation against them.
Set forth below is a description of Article XI and Article VI. Such
descriptions are intended as summaries only and are qualified in their entirety
by reference to the Company's Certificate and the Company's By-Laws, copies of
which have been filed as exhibits to this Registration Statement.
II-1
<PAGE> 4
Article XI protects the directors against personal liability for
breaches of the duty of care. Such Article absolves directors of liability for
negligence in the performance of their duties, including gross negligence.
Directors remain liable for breaches of the duty of loyalty to the Company and
its stockholders as well as for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law and transactions
from which a director derived improper personal benefit. In addition, Article XI
does not absolve directors of liability for unlawful dividends or stock
repurchases or redemptions to which a negligence standard presently applies
under Delaware Law. Also, there may be certain liabilities, such as those under
the federal securities laws or other state or federal laws, which a court may
hold are unaffected by Article XI.
Although Article XI provides the directors with protections against
personal liability for monetary damages for breaches of the duty of care, it
does not eliminate the directors' duty of care. Accordingly, Article XI would
have no effect on the availability of equitable remedies such as an injunction
to prevent a proposed action or rescission of a contract based upon a director's
breach of the duty of care. Although both directors and officers of the Company
are covered by indemnification provisions under Article VI (see below), Article
XI limits liability only with respect to a person acting in the capacity of a
director.
Article VI provides that each person who was or is made a party to, or
is involved in any action, suit or proceeding by reason of the fact that he or
she is or was a director, officer or employee of the Company (or was serving at
the request of the Company as a director, officer or employee of another entity,
including service with respect to employee benefit plans maintained or sponsored
by the Company) will be indemnified and held harmless by the Company, to the
fullest extent authorized by Delaware Law, as currently in effect (or, to the
extent indemnification in broadened, as it may be amended) against all expense,
liability or loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts to be paid in settlement) reasonably incurred by
such person in connection therewith. Article VI provides that the rights
conferred therein are contract rights and include the right to be paid by the
Company for the expenses incurred in defending the proceedings specified above,
in advance of their final disposition, except that, if Delaware Law so requires,
such payment will only be made upon delivery to the Company by the indemnified
party of an undertaking to repay all amounts so advanced if it is ultimately
determined that the person receiving such payments is not entitled to be
indemnified under the By-Laws or otherwise. Article VI provides that the Company
may, by action of its Board of Directors, provide indemnification to its agents
with the same scope and effect as the foregoing indemnification of directors,
officers and employees.
Article VI provides that persons indemnified thereunder may bring suit
against the Company to recover unpaid amounts claimed thereunder, and that if
such suit is successful, the expense of bringing such a suit will be reimbursed
by the Company. Article VI further provides that while it is a defense to such a
suit that the person claiming indemnification has not met the applicable
standards of conduct making indemnification permissible under Delaware Law, the
burden of proving the defense will be on the Company and neither the failure of
the Company's Board to have made a determination that indemnification is proper,
nor an actual determination by the Company's Board that the claimant has not met
the applicable standard of conduct, will be a defense to the action or create a
presumption that the claimant has not met the applicable standard of conduct.
Article VI provides that the rights to indemnification and the payment
of expenses incurred in defending a proceeding in advance of its final
disposition conferred therein will not be exclusive of any other right which any
person may have or acquire under any statute, provision of the Company's
Certificate of Incorporation or the Company's By-Laws, or otherwise. Article VI
also provides that the Company may maintain insurance, at its expense, to
protect itself and any of its directors, officers, employees or agents against
any expense, liability or loss, whether or not the Company would have the power
to indemnify such person against such expense, liability or loss under Delaware
Law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
II-2
<PAGE> 5
ITEM 8. EXHIBITS.
4.1 -- Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1993 (the "1993 Form 10-K"))
4.2 -- By-Laws of the Company (incorporated by reference to
Exhibit 3.2 to the 1993 Form 10-K)
4.3 -- Amendment to the By-Laws of the Company
4.4 -- Aviall, Inc. Preferred Stock Purchase Rights Plan
between the Company and The First National Bank of Boston
dated as of December 7, 1993 (incorporated by reference
to Exhibit 10.7 to the 1993 Form 10-K)
5.1 -- Opinion of Jones, Day, Reavis & Pogue
23.1 -- Consent of PricewaterhouseCoopers LLP
23.2 -- Consent of Jones, Day, Reavis & Pogue (included in
Exhibit 5.1)
24.1 -- Power of Attorney
99.1 -- Aviall, Inc. 1998 Directors Stock Plan (incorporated
by reference to Exhibit 10.1 to the Company's quarterly
report on Form 10-Q for the quarter ended June 30, 1998)
ITEM 9. UNDERTAKINGS.
A. The Company hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement: (i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended (the
"Securities Act"), unless the information required to be
included in such post-effective amendment is contained in
periodic reports filed by the Company pursuant to Section 13
or Section 15(d) of the Exchange Act and incorporated herein
by reference; (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, unless the information required to be
included in such post-effective amendment is contained in
periodic reports filed by the Company pursuant to Section 13
or Section 15(d) of the Exchange Act and incorporated herein
by reference; and (iii) to include any material information
with respect to the plan of distribution not previously
disclosed in this Registration Statement or any material
change to such information in this Registration Statement;
provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by
the Company pursuant to Section 13 or 15(d) of the Exchange
Act that are incorporated by reference in this Registration
Statement;
(2) That, for the purpose of determining any liability under
the Securities 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; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
II-3
<PAGE> 6
B. The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company'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
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer, or controlling person of the Company in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer, or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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<PAGE> 7
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
Post-Effective Amendment No. 1 to Registration Statement on Form S-8 to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Dallas, State of Texas on this 31st day of August, 1998.
AVIALL, INC.
By: /s/ JEFFREY J. MURPHY
-----------------------------------
Jeffrey J. Murphy
Senior Vice President, Law and Human
Resources, Secretary and General Counsel
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 to Registration Statement on Form S-8 has been
signed below by the following persons in the capacities indicated on this 31st
day of August, 1998.
SIGNATURE TITLE
/s/ ERIC E. ANDERSON Chairman, President and Chief
- ------------------------------------ Executive Officer
Eric E. Anderson (Principal Executive Officer)
/s/ JACQUELINE K. COLLIER Vice President and Controller)
- ------------------------------------ (Principal Accounting Officer)
Jacqueline K. Collier
/s/ CORNELIUS VAN DEN HANDEL Vice President and Treasurer
- ------------------------------------ (Principal Financial Officer)
Cornelius Van Den Handel
ROBERT G. LAMBERT* Director
- ------------------------------------
Robert G. Lambert
HENRY A. MCKINNELL* Director
- ------------------------------------
Henry A. McKinnell
DONALD R. MUZYKA* Director
- ------------------------------------
Donald R. Muzyka
RICHARD J. SCHNIEDERS* Director
- ------------------------------------
Richard J. Schnieders
BRUCE N. WHITMAN* Director
- ------------------------------------
Bruce N. Whitman
* The undersigned, by signing his name hereto, does sign and execute this
Post-Effective Amendment No. 1 to Registration Statement on Form S-8
pursuant to Power of Attorney executed by the above-named directors and
officers of the Registrant and contemporaneously filed herewith with the
Securities and Exchange Commission.
/s/ JEFFREY J. MURPHY
----------------------------------------
Jeffrey J. Murphy,
Attorney-in-Fact
<PAGE> 8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
No. Exhibit
- ------- -------
<S> <C>
4.1 -- Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the Company's
Annual Report on Form 10-K for the fiscal year ended December
31, 1993 (the "1993 Form 10-K"))
4.2 -- By-Laws of the Company (incorporated by reference to Exhibit
3.2 to the 1993 Form 10-K)
4.3 -- Amendment to the By-Laws of the Company
4.4 -- Aviall, Inc. Preferred Stock Purchase Rights Plan between
the Company and The First National Bank of Boston dated as of
December 7, 1993 (incorporated by reference to Exhibit 10.7 to
the 1993 Form 10-K)
5.1 -- Opinion of Jones, Day, Reavis & Pogue
23.1 -- Consent of PricewaterhouseCoopers LLP
23.2 -- Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5.1)
24.1 -- Power of Attorney
99.1 -- Aviall, Inc. 1998 Directors Stock Plan (incorporated by
reference to Exhibit 10.1 to the Company's quarterly report on
Form 10-Q for the quarter ended June 30, 1998)
</TABLE>
<PAGE> 1
EXHIBIT 4.3
AVIALL, INC.
BOARD OF DIRECTORS
DECEMBER 9, 1996
AVIALL, INC.
APPROVAL OF AMENDMENT OF BYLAWS
RESOLVED, That, effective December 9, 1996 the current Article IV,
Sections 4.3 and Sections 4.4 of the Bylaws are deleted in their entirety and
the following Article IV, Sections 4.3 and 4.4 are inserted in their place:
"SECTION 4.3 Chairman of the board. The Chairman of the
Board shall preside at all meetings of the stockholders
and of the Board of Directors. He shall make reports to
the Board of Directors and the stockholders, and shall
perform all such other duties as are properly required
of him by the Board of Directors. He shall see that all
orders and resolutions of the Board of Directors and of
any committee thereof are carried into effect.
SECTION 4.4 President. The President shall be
responsible for the general management of the affairs of
the Corporation and shall perform all duties incident to
his office which may be required by law and all such
other duties as are properly required of him by the
Board of Directors. The President shall, in the absence
of or because of the inability to act of the Chairman of
the Board, perform all duties of the Chairman of the
Board and preside at all meetings of stockholders and of
the Board of Directors. The President may sign, alone or
with the Secretary, or an Assistant Secretary, or any
other proper officer of the corporation authorized by
the Board of Directors, certificates, contracts, and
other instruments of the Corporation as authorized by
the Board of Directors."
and be it further
RESOLVED, That the officers of the Company be, and each hereby is,
authorized to take such action and to take such documents as such officers
believe to be necessary or proper to carry out and implement the prior
resolution.
Secretary
December 9, 1996
<PAGE> 1
EXHIBIT 5.1
[Letterhead of Jones, Day, Reavis & Pogue]
August 31, 1998
Aviall, Inc.
2075 Diplomat Drive
Dallas, Texas 75234-8999
Re: Aviall, Inc. 1998 Directors Stock Plan
Ladies and Gentlemen:
We are acting as counsel to Aviall, Inc., a Delaware corporation
(the "Company"), in connection with the registration of up to 135,000 shares
(the "Shares") of Common Stock, par value $.01 per share, of the Company (the
"Common Stock") under the Securities Act of 1933, as amended, pursuant to the
Company's Post-Effective Amendment No. 1 to Registration Statement on Form S-8
(the "Registration Statement").
We have examined such documents, records and matters of law as we
have deemed necessary for purposes of this opinion. Based upon such examination
and the assumptions set forth below, we are of the opinion that the Shares, when
issued and delivered in accordance with the provisions of the Aviall, Inc. 1998
Directors Stock Plan (the "Plan") against payment of the consideration therefore
as provided in the Plan and having a value not less than the par value thereof,
will be duly authorized, validly issued, fully paid and nonassessable.
In rendering the foregoing opinion, we have relied as to certain
factual matters upon certificates of officers of the Company and public
officials, and we have not independently checked or verified the accuracy of the
statements contained therein. In addition, our examination of matters of law has
been limited to the federal laws of the United States of America and the General
Corporation Law of the State of Delaware, in each case as in effect on the date
hereof.
We hereby consent to the filing of this opinion as Exhibit 5.1 to
the Registration Statement.
Very truly yours,
/s/ Jones, Day, Reavis & Pogue
---------------------------------------
Jones, Day, Reavis & Pogue
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Post-Effective Amendment
No. 1 to Registration Statement on Form S-8 of our report dated January 28, 1998
appearing on page F-2 of Aviall, Inc.'s Annual Report on Form 10-K for the year
ended December 31, 1997.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Dallas, Texas
August 31, 1998
<PAGE> 1
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THE PRESENTS, that the undersigned, on behalf of Aviall, Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints Jeffrey J.
Murphy, Jacqueline K. Collier, James E. O'Bannon and Heather J. Haase and each
of them, the true and lawful attorney or attorneys-in-fact, with full power of
substitution and resubstitution, for the Company, to sign on behalf of the
Company and on behalf of the undersigned in his or her capacity as an officer
and/or a director of the Company, the Company's S-8 for the Aviall, Inc.
Directors Stock Plan, and to sign any or all amendments thereto, and to file the
same, with all exhibits thereto, and other documents in connection therewith, to
or with the Securities and Exchange Commission pursuant to the Securities Act of
1933, as amended, and the regulations promulgated thereunder, granting unto said
attorney or attorneys-in-fact, and each of them with or without the others, full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises in order to effectuate the same
as fully to all intents and purposes as the undersigned might or could in
person, hereby ratifying and confirming all that said attorney or
attorneys-in-fact, or any of them or their substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
effective as of July 10, 1998.
/s/ ROBERT G. LAMBERT /s/ HENRY A. MCKINNELL /s/ DONALD R. MUZYKA
- -------------------------- ---------------------- --------------------
Robert G. Lambert Henry A. McKinnell Donald R. Muzyka
/s/ RICHARD J. SCHNIEDERS /s/ BRUCE N. WHITMAN
- -------------------------- --------------------
Richard J. Schnieders Bruce N. Whitman
