<PAGE> 1
As filed with the Securities and Exchange Commission on September 1, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------
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 STOCK INCENTIVE 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)....... 940,000 shares $13.15625 $12,366,875 $3,649
==============================================================================================================================
</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 Stock Incentive 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 Registration Statement on
Form S-8 (the "Registration Statement") is included in the description of the
Aviall, Inc. 1998 Stock Incentive 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 (incorporated by
reference to Exhibit 4.3 to the Company's Post-Effective
Amendment No. 1 to the Registration Statement on Form S-8
(Commission File No. 33-72602))
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 Stock Incentive Plan (incorporated by
reference to Exhibit 10.2 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.
II-4
<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 Registration
Statement 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
Registration Statement has been signed below by the following persons in the
capacities indicated on this 31st day of August, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ ERIC E. ANDERSON Chairman, President and Chief Executive Officer
- ------------------------------------ (Principal Executive Officer)
Eric E. Anderson
/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
</TABLE>
* The undersigned, by signing his name hereto, does sign and execute this
Registration Statement pursuant to the 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 (incorporated by reference to
Exhibit 4.3 to the Company's Post-Effective Amendment No. 1 to the Registration
Statement on Form S-8 (Commission File No. 33-72602))
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 Stock Incentive Plan (incorporated by reference to Exhibit 10.2 to
the Company's quarterly report on Form 10-Q for the quarter ended June 30, 1998)
</TABLE>
<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 Stock Incentive 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 940,000 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
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
Stock Incentive Plan (the "Plan") against payment of the consideration therefor
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 to 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 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. 1998
Stock Incentive 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 March 17, 1998.
<TABLE>
<S> <C> <C>
/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
</TABLE>
