AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 3, 1999
REGISTRATION NO. 333-__________
===========================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------------
GULFSTREAM AEROSPACE CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 13-3554834
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
P.O. BOX 2206
500 GULFSTREAM ROAD
SAVANNAH, GEORGIA 31402-2206
(Address of registrant's
principal executive
offices)
CERTAIN SHARES TO BE ISSUED UNDER THE
GULFSTREAM AEROSPACE CORPORATION
AMENDED AND RESTATED 1990 STOCK OPTION PLAN
CERTAIN SHARES TO BE ISSUED TO JAMES T. JOHNSON
PURSUANT TO STOCK OPTION AGREEMENTS
DATED AUGUST 4, 1997 AND NOVEMBER 24, 1997
(Full title of the plan)
IRA P. BERMAN, ESQ.
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
500 GULFSTREAM ROAD
P.O. BOX 2206
SAVANNAH, GEORGIA 31402
(912) 965-3000
(Name, address, and telephone number of agent for service)
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
- ---------------------------------------- ------------------ ------------------- ------------------ ----------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share 280,645 shares(1) $54.40625(2) $15,268,842.03(2) $4,244.74(2)
- ---------------------------------------- ------------------ ------------------- ------------------ ----------------------
Common Stock, par value $.01 per share 1,600,000 shares(1) $50.0625(3) $80,100,000.00(3) $22,267.80(3)
- ---------------------------------------- ------------------ ------------------- ------------------ ----------------------
Common Stock, par value $.01 per share 32,500(1) $55.00(3) 1,787,500(3) $496.93(3)
- ---------------------------------------- ------------------ ------------------- ------------------ ----------------------
Common Stock, par value $.01 per share 40,000(1) $54.5625(3) $2,182,500(3) $606.74(3)
- ---------------------------------------- ------------------ ------------------- ------------------ ----------------------
Common Stock, par value $.01 per share 263,675 shares(1) $26.9375(3) $7,102,745.31(3) $1,974.56(3)
- ---------------------------------------- ------------------ ------------------- ------------------ ----------------------
Total Registration Fee $29,590.77
======================================== ================== =================== ================== ======================
<FN>
(1) Includes an indeterminate number of shares of Common Stock that may be
issuable by reason of stock splits, stock dividends or similar
transactions in accordance with Rule 416 under the Securities Act of
1933.
(2) Pursuant to Rule 457(c) and (h) under the Securities Act of 1933, the
amounts are calculated based upon the average of the high and low sale
prices for the Common Stock as reported on the New York Stock Exchange
on January 27, 1999, and are used solely for the purpose of
calculating the registration fee.
(3) Pursuant to Rule 457(h) under the Securities Act of 1933, the amounts
are calculated based upon the maximum price at which stock options
covering the registered shares of Common Stock may be exercised.
</FN>
</TABLE>
<PAGE>
EXPLANATORY NOTE
This Registration Statement relates to (i) 1,953,145 shares of common
stock of the Company, par value $.01 per share (the "Common Stock"), which
may be issued upon the exercise of non-qualified stock options granted
under the Amended and Restated 1990 Stock Option Plan (the "Plan") of
Gulfstream Aerospace Corporation (the "Company") and (ii) 263,675 shares of
Common Stock which may be issued to James T. Johnson upon the exercise of
non-qualified stock options granted to him outside of the Plan. The Plan
provides for the granting of options to purchase shares of Common Stock to
eligible employees and directors of, and consultants and advisors to, the
Company and its subsidiaries and affiliates. On December 9, 1998, the
Company granted (and authorized certain future grants of) options under the
Plan to certain eligible individuals. This Registration Statement covers
shares of Common Stock which may be issued upon the exercise of these
options, as well as upon the exercise of options which may be granted under
the Plan following the date hereof. In addition, this Registration
Statement covers 263,675 shares of Common Stock which may be issued upon
the exercise of options granted to James T. Johnson outside of the Plan on
August 4, 1997 and November 24, 1997.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, which have been filed by the Company with the
Securities and Exchange Commission (the "Commission"), are incorporated by
reference in this Registration Statement.
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1997;
(b) The Company's Quarterly Reports on Form 10-Q for the
quarterly periods ended September 30, 1998, June 30, 1998 and March
31, 1998;
(c) The Company's Current Reports on Form 8-K dated August 19,
1998 and February 10, 1998; and
(d) The description of the Common Stock of the Company, which is
registered under Section 12 of the Securities Exchange Act of 1934
(the "Exchange Act"), contained in the Registration Statement on Form
S-1 filed with the Commission on October 9, 1996 (No. 333-09897) (the
"Form S-1").
All documents filed subsequent to the date hereof by the Company
pursuant to Sections 13(a), 13(c), 14, and 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
securities then remaining unsold, shall be deemed to be incorporated herein
by reference and to be a part hereof from the date of the filing (such
documents and the documents enumerated above, being hereinafter referred to
as "Incorporated Documents"). Any statement contained herein or in an
Incorporated Document deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes hereof to the extent
that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such
statement as so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part hereof.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the securities offered pursuant to this Registration
Statement has been passed upon for the Company by Ira P. Berman, Esq.,
Senior Vice President and General Counsel of the Company. Mr. Berman holds
options to purchase shares of Common Stock of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Restated Certificate of Incorporation and the By-Laws of the
Company provide for indemnification, to the fullest extent permitted by the
DGCL, of any person who is or was involved in any manner in any pending,
threatened or completed investigation, claim or other proceeding by reason
of the fact that such person is or was a director or officer of the Company
or, at the request of the Company, is or was serving as a director or
officer of another entity, against all expenses, liabilities, losses and
claims actually incurred or suffered by such person in connection with the
investigation, claim or other proceeding. The By-Laws also provide that the
Company shall advance expenses to a director or officer upon receipt of an
undertaking by or on behalf of such director or officer to repay such
amount if it is ultimately determined that the director or officer is not
entitled to be indemnified by the Company.
Article SIXTH of the Restated Certificate of Incorporation provides
that directors of the Company shall not, to the fullest extent permitted by
the DGCL, be liable to the Company or any of its stockholders for monetary
damages for any breach of fiduciary duty as a director. The Restated
Certificate of Incorporation also provides that if the DGCL is amended to
permit further elimination or limitation of the personal liability of
directors, then the liability of the directors of the Company shall be
eliminated or limited to the fullest extent permitted by the DGCL as so
amended.
The Company and Gulfstream Delaware Corporation have entered into
agreements to provide indemnification for the Company's directors and
certain officers in addition to the indemnification provided for in the
Restated Certificate of Incorporation and the By-Laws. These agreements,
among other things, will indemnify the Company's directors and certain
officers to the fullest extent permitted by Delaware law for certain
expenses (including attorneys' fees) and all losses, claims, liabilities,
judgments, fines and settlement amounts incurred by such person arising out
of or in connection with such person's service as a director or officer of
the Company or another entity for which such person was serving as an
officer or director at the request of the Company.
Policies of insurance are maintained by the Company under which its
directors and officers are insured, within the limits and subject to the
limitations of the policies, against certain expenses in connection with
the defense of, and certain liabilities which might be imposed as a result
of, actions, suits or proceedings to which they are parties by reason of
being or having been such directors or officers.
ITEM 8. EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- ----------- ----------------------
4.1 -- Form of Restated Certificate of Incorporation (Filed as
Exhibit 3.1 to the Form S-1 and incorporated herein by
reference)
4.2 -- Form of Restated By-Laws (Filed as Exhibit 3.2 to the Form
S-1 and incorporated herein by reference)
4.3 -- Specimen Form of Common Stock Certificate (Filed as Exhibit
4.1 to the Form S-1 and incorporated herein by reference)
4.4 -- Amended and Restated Gulfstream Aerospace Corporation 1990
Stock Option Plan, as further amended through December 2,
1998 *
5.1 -- Opinion of Ira P. Berman, Esq. as to the legality of the
shares of Common Stock covered by the Registration Statement*
23.1 -- Consent of Deloitte & Touche LLP *
23.2 -- Consent of Ira P. Berman, Esq. (included in Exhibit 5.1)
24.1 -- Powers of Attorney (included on the signature pages)
* Filed herewith.
ITEM 9. UNDERTAKINGS
The Company hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to the Registration Statement to
include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each post-effective amendment to 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) 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.
(d) That, for the purpose 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.
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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company 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 Savannah, Georgia, on February 3, 1999.
GULFSTREAM AEROSPACE CORPORATION
By: /s/ Chris A. Davis
------------------------------
Chris A. Davis
Executive Vice President and
Chief Financial and
Administrative Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Chris A. Davis and Ira P.
Berman, and each of them, as his or her true and lawful attorneys-in-fact
and agents, each acting alone, with full powers of substitution and
resubstitution, for him in his or her name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement
and any additional registration statements pursuant to Instruction E to
Form S-8 and any and all documents in connection therewith, and to file the
same, with all exhibits thereto, and all documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents 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, as fully to all intents and purposes as he or she might
or could do in person, and hereby ratifies, approves and confirms all that
his or her said attorneys-in-fact and agents, each acting alone, or his or
her substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
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:
SIGNATURE TITLE DATE
--------- ----- ----
/s/Theodore J. Forstmann Chairman of the Board, Dec. 9, 1998
- ----------------------------- Chief Executive Officer and
Theodore J. Forstmann Director
/s/ W. W. Boisture, Jr. President, Chief Operating Dec. 9, 1998
- ----------------------------- Officer and Director
W.W. Boisture, Jr.
/s/ Chris A. Davis Executive Vice President, Dec. 9, 1998
- ----------------------------- Chief Financial and
Chris A. Davis Administrative Officer,
Secretary and Director
(Principal Financial Officer
and Principal Accounting
Officer)
/s/ Bryan T. Moss Vice Chairman of the Board Dec. 9, 1998
- ----------------------------- and Director
Bryan T. Moss
/s/ Robert Anderson Director Dec. 9, 1998
- -----------------------------
Robert Anderson
/s/ Charlotte L. Beers Director Dec. 9, 1998
- -----------------------------
Charlotte L. Beers
- ----------------------------- Director Dec. __, 1998
Thomas D. Bell, Jr.
/s/ Lynn Forester Director Dec. 9, 1998
- -----------------------------
Lynn Forester
/s/ Nicholas C. Forstmann Director Dec. 9, 1998
- -----------------------------
Nicholas C. Forstmann
/s/ Sandra J. Horbach Director Dec. 9, 1998
- -----------------------------
Sandra J. Horbach
/s/ James T. Johnson Director Dec. 9, 1998
- -----------------------------
James T. Johnson
/s/ Henry A. Kissinger Director Dec. 9, 1998
- -----------------------------
Henry A. Kissinger
/s/ Drew Lewis Director Dec. 9, 1998
- -----------------------------
Drew Lewis
/s/ Mark H. McCormack Director Dec. 9, 1998
- -----------------------------
Mark H. McCormack
- ----------------------------- Director Dec. __, 1998
Michael S. Ovitz
- ----------------------------- Director Dec. __, 1998
Allen E. Paulson
/s/ Roger S. Penske Director Dec. 9, 1998
- -----------------------------
Roger S. Penske
/s/ Colin L. Powell Director Dec. 9, 1998
- -----------------------------
Colin L. Powell
/s/ Gerard Roche Director Dec. 9, 1998
- -----------------------------
Gerard Roche
/s/ Donald H. Rumsfeld Director Dec. 9, 1998
- -----------------------------
Donald H. Rumsfeld
/s/ George P. Shultz Director Dec. 9, 1998
- -----------------------------
George P. Shultz
/s/ Robert S. Strauss Director Dec. 9, 1998
- -----------------------------
Robert S. Strauss
<PAGE>
INDEX TO EXHIBITS
-----------------
EXHIBIT NO. DESCRIPTION OF EXHIBIT PAGE NO.
- ----------- ---------------------- --------
4.1 Form of Restated Certificate of
Incorporation (Filed as Exhibit 3.1 to the
Registration Statement on Form S-1 filed
with the Commission on October 9, 1996 (No.
333-09897) (the "Form S-1") and incorporated
herein by reference)
4.2 Form of Restated By-Laws (Filed as Exhibit
3.2 to the Form S-1 and incorporated herein
by reference)
4.3 Specimen Form of Common Stock Certificate
(Filed as Exhibit 4.1 to the Form S-1 and
incorporated herein by reference)
4.4 Amended and Restated Gulfstream Aerospace
Corporation 1990 Stock Option Plan, as
further amended through December 2, 1998 *
5.1 Opinion of Ira P. Berman, Esq. as to the
legality of the shares of Common Stock
covered by the Registration Statement *
23.1 Consent of Deloitte & Touche LLP *
23.2 Consent of Ira P. Berman, Esq. (included in
Exhibit 5.1)
24.1 Powers of Attorney (included on the
signature pages)
* Filed herewith.
EXHIBIT 4.4
AMENDED AND RESTATED
GULFSTREAM AEROSPACE CORPORATION
1990 STOCK OPTION PLAN,
AS FURTHER AMENDED THROUGH DECEMBER 2, 1998
1. Purpose. The purpose of the Gulfstream Aerospace Corporation Stock
Option Plan is to provide financial incentives to key employees of the
Corporation and its Subsidiaries and such consultants, advisors and members
of the Board of Directors of the Corporation and its Subsidiaries whose
entrepreneurial and management talents and commitments are essential for
the continued growth and expansion of the Corporation's business.
The Options granted under the Plan are not intended to qualify as
Incentive Stock Options within the meaning of Section 422 of the Code.
2. Definitions. For purposes of this Plan:
(a) "Affiliate" means any person directly or indirectly
controlling, controlled by, or under common control with the person of
which it is an Affiliate.
(b) "Board" means the Board of Directors of the Corporation.
(c) "Common Stock" means the Common Stock, par value $.0l per
share, of the Corporation and any other stock or securities into which such
shares are changed or for which such shares are exchanged as described in
Section 7 hereof.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Committee" means a committee, as described in Section 3,
appointed by the Board from time to time to administer the Plan and to
perform the functions set forth herein.
(f) "Corporation" means Gulfstream Aerospace Corporation, a
Delaware corporation, and any successor to Gulfstream Aerospace Corporation
by merger, consolidation, acquisition of substantially all the assets
thereof or otherwise.
(g) "Eligible Person" means any individual employee or director
of, or consultant or advisor to, the Corporation or its Subsidiaries whom
the Committee designates as eligible to receive Options.
(h) "FL & Co. Companies" means individually and collectively
Gulfstream Partners, Gulfstream Partners II, L.P. and Forstmann Little &
Co. Subordinated Debt and Equity Management Buyout Partnership - IV, each a
New York limited partnership.
(i) "Nonemployee Director" means a director of the Corporation
who is a "nonemployee director" within the meaning of Rule 16b-3
promulgated under the Securities Exchange Act of 1934, as amended.
(j) "Option" means an option granted under the Plan.
(k) "Optionee" means a person to whom an Option has been granted.
(l) "Option Price" means the price at which a share of Common
Stock can be purchased pursuant to an Option.
(m) "Original Shareholders" means individually and collectively
the FL & Co. Companies and Allen E. Paulson.
(n) "Outside Director" means a director of the Corporation who is
an "outside director" within the meaning of Section 162(m) of the Code and
the regulations promulgated thereunder.
(o) "Parent" means a parent corporation within the meaning of
Section 424(e) of the Code.
(p) "Plan" means the Gulfstream Aerospace Corporation Stock
Option Plan as set forth in this instrument and as it may be amended from
time to time.
(q) "Stock Option Agreement" means the written agreement between
an Optionee and the Corporation evidencing the grant of an Option and
setting forth the terms and conditions of that Option.
(r) "Stockholder's Agreement" means the Stockholder's Agreement
governing the rights, duties and obligations of present or former
employees, directors, consultants or advisors of the Corporation or its
Subsidiaries with respect to shares of Common Stock granted or sold to such
persons, or issued pursuant to options granted or sold to such persons,
substantially in the form attached hereto, or such other form as is in use
by the Corporation at the time of exercise of any Option or any part
thereof and which the Corporation elects to require the Optionee to execute
in connection with his exercise of the Option. All references herein or in
any Stock Option Agreement to sections of the Stockholder's Agreement refer
to sections of the Stockholder's Agreement attached hereto or to the
corresponding sections of any Stockholder's Agreement in use by the
Corporation at the time of exercise of any Option and which the Corporation
elects to require the Optionee to execute in connection with his exercise
of the Option.
(s) "Subsidiary" means a subsidiary corporation of the
Corporation within the meaning of Section 424(f) of the Code, substituting
"issuing" for "employer" references therein.
(t) "Successor Corporation" means a corporation, or a Parent or
Subsidiary of such corporation, which issues or assumes a stock option in a
transaction to which Section 424(a) of the Code applies.
(u) "Third Party" means any person who is not an Affiliate or a
partner of the Original Shareholders or an Affiliate of such partner.
3. Administration. The Plan shall be administered by the Committee,
which shall hold meetings at least annually, and shall keep minutes of its
meetings. The Committee shall have all of the powers necessary to enable it
to carry out its duties under the Plan properly, including the power and
duty to construe and interpret the Plan and to determine all questions
arising under it. The Committee's interpretations and determinations shall
be conclusive and binding upon all persons. The Committee may also
establish, from time to time, such regulations, provisions, procedures and
conditions regarding the Options and granting of Options which in its
opinion may be advisable in administering the Plan. A quorum shall consist
of not fewer than two members of the Committee and a majority of a quorum
may authorize any action. Any decision or determination reduced to writing
and signed by a majority of all of the members of the Committee shall be as
fully effective as if made by a majority vote at a meeting duly called and
held. The Committee shall consist of at least two (2) directors of the
Corporation and may consist of the entire Board; provided, however, that
(A) if the Committee consists of less than the entire Board, each member
shall be a Nonemployee Director and (B) to the extent necessary for any
Option intended to qualify as performance-based compensation under Section
162(m) of the Code to so qualify, each member of the Committee, whether or
not it consists of the entire Board, shall be an Outside Director.
4. Shares Available for Option.
---------------------------
(a) The Corporation shall reserve for the purposes of the Plan,
out of its authorized but unissued Common Stock or out of shares of Common
Stock held in the Corporation's treasury, or partly out of each, as shall
be determined by the Board, a total of 10,188,550 shares of Common Stock
(or the number and kind of shares of stock or other securities into which
those 10,188,550 shares are changed or for which those 10,188,550 shares
are exchanged in accordance with Section 7 hereof).
(b) In any calendar year, no Eligible Person may be granted
Options in the aggregate in respect of more than 500,000 Shares.
(c) In the event that an Option granted under the Plan to any
Eligible Person expires, or is for any other reason terminated and
unexercised as to any shares of Common Stock covered by the Option, those
shares of Common Stock shall thereafter be available for the granting of
future Options under the Plan.
5. Granting Options.
----------------
(a) Subject to the provisions of the Plan, the Committee shall
have full and final authority to select those Eligible Persons who will
receive Options. The Committee may also grant more than one Option to a
given Eligible Person during the term of the Plan, either in addition to,
or in substitution for, one or more Options previously granted that
Eligible Person. Options shall be issued pursuant to a Stock Option
Agreement executed by the Corporation and the Optionee.
(b) The Committee, in its sole discretion, shall establish the
per share Option Price at the time an Option is granted.
(c) The terms of each Option granted under the Plan may differ
from those of other Options granted under the Plan at the same time, or at
some other time; provided that in no event shall the term of any Option
granted under the Plan exceed ten years and one day.
(d) Subject to the provisions of the Plan and the Stock Option
Agreement, an Option granted under this Plan shall be exercisable
immediately or in accordance with a schedule determined by the Committee in
its sole discretion, and the Committee may accelerate the exercisability of
any Option at any time.
(e) Unless set forth in the Stock Option Agreement evidencing the
Option at the time of grant or at any time thereafter, an Option granted
hereunder shall not be transferable by the Optionee to whom granted except
by will or the laws of descent and distribution of the state of the
Optionee's domicile at the time of his death, and an Option may be
exercised during the lifetime of such Optionee only by the Optionee or his
or her guardian or legal representative. The terms of such Option shall be
final, binding and conclusive upon the beneficiaries, executors,
administrators, heirs and successors of the Optionee.
(f) Subject to the terms and conditions and within the
limitations of the Plan, the Committee may modify, extend, replace or renew
outstanding Options granted under the Plan, or accept the surrender of
outstanding Options (to the extent they have not yet been exercised) and
grant new Options in substitution for them. Notwithstanding the foregoing,
however, no modification of an Option shall adversely alter or impair any
rights or obligations under any Option granted under the Plan without the
affected Optionee's consent.
6. Exercise Of Options.
-------------------
(a) To exercise an Option, in whole or in part, the Optionee
shall deliver to the Committee a written notice of exercise specifying the
number of shares of Common Stock in respect of which the Option is being
exercised. The Option Price shall be paid in full in cash for those shares
of Common Stock with respect to which the Option is being exercised. The
Stock Option Agreement shall set forth the minimum number of shares of
Common Stock, if any, which may be purchased at any one time upon the
exercise of an Option. Each share of Common Stock purchased upon exercise
of an Option shall be issued and delivered at the principal office of the
Corporation to the person entitled to receive it. An Optionee shall not be
deemed the holder of any shares of Common Stock subject to the Option or
have any rights of a stockholder with respect thereto until such shares of
Common Stock have been issued and delivered to such Optionee. The Stock
Option Agreement may contain such other conditions to the exercise of an
Option as the Committee from time to time shall determine and may also
contain provisions relating to the ownership of the shares of Common Stock
issued upon the exercise of the Option or may require the Optionee, as a
condition of exercise of the Option, to execute a Stockholder's Agreement.
(b) Except as provided in the Stock Option Agreement, any Options
held by an Optionee shall not be exercisable after the termination of the
Optionee's employment with the Corporation or its Subsidiaries or his
membership on the Board, as the case may be. During an Optionee's lifetime,
Options granted under the Plan shall be exercisable only by the Optionee.
In the event of an Optionee's death, any Options held by the Optionee shall
be exercisable, to the extent provided in the Plan or under the Stock
Option Agreement, by the legatee or legatees under his will or by his
personal representatives or distributees.
(c) All certificates representing shares of Common Stock issued
pursuant to the exercise of an Option shall bear the following legend:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or any
securities regulatory authority of any state, and may not be
sold, transferred, assigned, exchanged, pledged, encumbered or
otherwise disposed of except in accordance with the provisions of
a Stockholder's Agreement with the Corporation, a copy of which
is available for inspection at the offices of the Corporation."
or such other legend to the same effect as approved by the Committee.
(d) To the extent that an Option is not exercised prior to the
expiration of its term or such shorter period of time prescribed by the
Plan and the Stock Option Agreement, the Option shall lapse and all rights
of the Optionee with respect thereto shall terminate.
7. Changes in Common Stock. In the event that the outstanding shares
of Common Stock are changed into or exchanged for a different number or
kind of shares of stock or other securities of the Corporation, whether
through merger, consolidation, reorganization, recapitalization, stock
dividend, stock split-up or other substitution of securities of the
Corporation, the Committee shall make appropriate adjustments to the
maximum number and class of shares of stock as to which Options may be
granted under the Plan and the number and class of shares of stock with
respect to which Options have been granted under the Plan, the Option Price
for such shares and any other economic terms of the Option. In the event
that any shares of Common Stock are issued after the date of the Plan to
any of the FL & Co. Companies for less than fair consideration, as
determined conclusively by the Committee, the Committee shall make
appropriate adjustments to the maximum number of shares of stock as to
which Options may be granted under the Plan and the number of shares of
stock with respect to which Options have been granted under the Plan and
the Option Price for such shares. The Committee's adjustment shall be final
and binding for all purposes of the Plan and each Stock Option Agreement
entered into under the Plan. No adjustment provided for in this Section 7
shall require the Corporation to issue a fractional share, and with respect
to each Stock Option Agreement the total adjustment as to the number of
shares for which Options have been granted shall be effected by rounding
down to the nearest whole number of shares.
8. Amendment or Termination of Plan. The Board shall have the right to
amend, suspend or terminate the Plan at any time, provided that, to the
extent necessary under applicable law, an amendment shall not be effective
unless approved by the stockholders of the Company in accordance with
applicable law. The rights of an Optionee under any Option granted prior to
an amendment, suspension or termination of the Plan shall not be adversely
affected by any such action of the Board except with the consent of the
Optionee.
9. Indemnification of Stock Option Committee. The members of the
Committee shall be indemnified by the corporation against all losses,
claims, damages and liabilities, joint or several (including all legal and
other expenses reasonably incurred in connection with the preparation for,
or defense of, any claim, action or proceeding, whether or not resulting in
any liability), for any acts or omissions which are within the scope of
such member's duties as a member of the Committee to the full extent
permitted under the General Corporation Law of the State of Delaware, as
amended from time to time.
10. Compliance with Law and Other Conditions. All Options and Stock
Option Agreements shall be governed by the laws of the State of New York to
the extent not superseded by the laws of the United States. Notwithstanding
anything herein or in any agreements pursuant to which Options are granted
to the contrary, the Corporation shall not be required to issue shares
pursuant to the exercise of any Option granted under the Plan unless the
Corporation's counsel has advised the Corporation that such exercise and
issuance comply with all applicable laws including, without limitation, all
applicable federal and state securities laws.
11. Miscellaneous. Nothing in the Plan or in any Stock Option
Agreement shall (a) confer on any employee any right to continue in the
employ of the Corporation, any of its Subsidiaries or any Successor
corporation; or (b) affect the right of the Corporation, any of its
Subsidiaries or any Successor Corporation to terminate his employment at
any time.
12. Withholding of Taxes. At such times as an Optionee recognizes
taxable income in connection with the receipt of Shares hereunder (a
"Taxable Event"), the Optionee shall pay to the Corporation an amount equal
to the federal, state and local income taxes and other amounts as may be
required by law to be withheld by the Corporation in connection with the
Taxable Event prior to the issuance of such Shares.
13. Effective Date and Duration of Plan. The effective date of the
Plan shall be the date of its adoption by the Board, subject only to the
approval of the stockholders of the Corporation. No options may be granted
under the Plan after September 12, 2010.
14. Taxes. At such times as an Optionee recognizes taxable income in
connection with the exercise of Options hereunder (a "Taxable Event"), the
Optionee shall pay to the Corporation an amount equal to the federal, state
and local income taxes and other amounts as may be required by law to be
withheld by the Corporation in connection with the Taxable Event (the
"Withholding Taxes") prior to the issuance of Common Stock. In satisfaction
of the obligation to pay Withholding Taxes to the Corporation, the Optionee
may make a written election, which may be accepted or rejected in the
discretion of the Committee, to have withheld a portion of the Common Stock
then issuable to him or her in connection with the exercise of Options
hereunder having an aggregate Fair Market Value equal to the Withholding
Taxes. For purposes of this Section 14, "Fair Market Value" on any date
means the closing sales prices of the shares of Common Stock on such date
on the principal national securities exchange on which such shares of
Common Stock are listed or admitted to trading, or, if the shares of Common
Stock are not so listed or admitted to trading, the average of the per
share of Common Stock closing bid price and per share of Common Stock
closing asked price on such date as quoted on the National Association of
Securities Dealers Automated Quotation System or such other market in which
such prices are regularly quoted, or, if there have been no published bid
or asked quotations with respect to the Common Stock on such date, the Fair
Market Value shall be the value established by the Board in good faith.
EXHIBIT 5.1
[LETTERHEAD OF GULFSTREAM AEROSPACE CORPORATION]
February 1, 1999
Gulfstream Aerospace Corporation
P.O. Box 2206
500 Gulfstream Road
Savannah, Georgia 31402-2206
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
I am Senior Vice President and General Counsel of Gulfstream Aerospace
Corporation, a Delaware corporation (the "Company"). The Company is filing
with the Securities and Exchange Commission a Registration Statement on
Form S-8 (the "Registration Statement") covering the sale of up to
2,216,820 shares (the "Shares") of Common Stock, par value $.01 per share,
of the Company, pursuant to (i) the Company's Amended and Restated 1990
Stock Option Plan (the "Plan"), and (ii) certain nonqualified stock options
granted to James T. Johnson pursuant to agreements dated August 4, 1997 and
November 24, 1997 (the "Agreements").
All assumptions and statements of reliance herein have been made
without any independent investigation or verification on our part except to
the extent otherwise expressly stated, and we express no opinion with
respect to the subject matter or accuracy of such assumptions or items
relied upon.
In connection with this opinion, I have (i) investigated such
questions of law, (ii) examined originals or certified, conformed or
reproduction copies of such agreements, instruments, documents and records
of the Company, such certificates of public officials and such other
documents, and (iii) received such information from officers and
representatives of the Company, as I have deemed necessary or appropriate
for the purposes of this opinion. In all examinations, I have assumed the
legal capacity of all natural persons executing documents, the genuineness
of all signatures, the authenticity of original and certified documents and
the conformity to original or certified copies of all copies submitted to
us as conformed or reproduction copies. As to various questions of fact
relevant to the opinions expressed herein, I have relied upon, and assume
the accuracy of, representations and warranties contained in documents and
certificates and oral or written statements and other information of or
from representatives of the Company and others and assume compliance on the
part of all parties to the documents with their covenants and agreements
contained therein.
Based upon the foregoing and subject to the limitations,
qualifications and assumptions set forth herein, I am of the opinion that
the Shares, when issued or sold, and when delivered and paid for in
accordance with the provisions of the Plan and the applicable option
agreements thereunder or under the "Agreements", as the case may be, will
be duly authorized, validly issued, fully paid and non-assessable.
The opinion expressed herein is limited to the General Corporation Law
of the State of Delaware, as currently in effect.
I hold stock options granted under the Plan.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, I do not hereby admit that
I am in the category of such persons whose consent is required under
Section 7 of the Securities Act of 1933, as marked.
Very truly yours,
/s/ Ira P. Berman
Ira P. Berman
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Gulfstream Aerospace Corporation on Form S-8 of our reports dated
January 30, 1998, appearing in and incorporated by reference in the Annual
Report on Form 10-K of Gulfstream Aerospace Corporation for the year ended
December 31, 1997.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Atlanta, Georgia
February 1, 1999
