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As filed with the Securities and Exchange Commission on August 26, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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KELLSTROM INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3753725
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
14000 N.W. 4TH STREET
SUNRISE, FLORIDA 33325
(954) 845-0427
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
KELLSTROM INDUSTRIES, INC.
1997 STOCK OPTION PLAN
(full title of the plan)
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ZIVI R. NEDIVI
PRESIDENT AND CHIEF EXECUTIVE OFFICER
KELLSTROM INDUSTRIES, INC.
14000 N.W. 4TH STREET
SUNRISE, FLORIDA 33325
(954) 845-0427
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies of all communications, including all communications sent to the
agent for service, should be sent to:
BRUCE I. MARCH
AKERMAN, SENTERFITT & EIDSON, P.A.
ONE S.E. THIRD AVENUE, SUITE 2800
MIAMI, FLORIDA 33131
(305) 374-5600
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================================
Proposed maximum Proposed maximum
Title of Securities Amount to be offering price per aggregate offering Amount of
to be registered registered share (1) price (1) registration fee
========================================================================================================================
<S> <C> <C> <C> <C>
Common Stock $.001
par value per share 1,000,000 shares $18.00 - $25.75 $21,475,000 $6,335
========================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee which
was computed in accordance with Rule 457(h) of the Securities Act of 1933,
as amended (the "Act"), on the basis of (i) the exercise price of $18.00
for an aggregate of 600,000 options granted on October 27, 1997, and (ii)
the exercise price of $25.75 for an aggregate of 400,000 options granted
on June 19, 1998.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Kellstrom Industries, Inc. (the
"Company") are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997, filed on March 23, 1998.
(b) The Company's Definitive Proxy Statement on Schedule 14A, filed on
April 29, 1998.
(c) The Company's Quarterly Reports on Form 10-Q for the fiscal quarter
ended March 31, 1998, filed on May 15, 1998.
(d) The Company's Current Report on Form 8-K filed on June 30, 1998.
(e) The Company's Current Report on Form 8-K filed on April 14, 1998.
(f) The Company's Current Report on Form 8-K filed on May 18, 1998.
(g) The Company's Current Report on Form 8-K/A filed on May 18, 1998.
(h) The Company's Prospectus filed pursuant to Rule 424(b) under the
Act on June 12, 1998.
(i) The description of the Company's Common Stock included in the
Company's Registration Statement on Form S-3, as amended (File No. 333-52913).
In addition to the foregoing, all documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended, prior to the filing of a post-effective
amendment indicating that all of the securities offered hereunder have been sold
or deregistering all 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 in a document
incorporated by reference in this Registration Statement 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 that is
also incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145(a) of the Delaware General Corporation Law (the "GCL")
provides that a Delaware corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against expenses, judgments, fines and amounts paid in settlement actually
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and reasonably incurred by such person in connection with such action, suit or
proceeding if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no cause to believe his
or her conduct was unlawful.
Section 145(b) of the GCL provides that a Delaware corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, or suit by or in the right of
the corporation to procure a judgment in its favor by reason of the fact that
such person acted in any of the capacities set forth above, against expenses
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if he or she acted under similar standards,
except that no indemnification may be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable for
negligence or misconduct in the performance of his or her duty to the
corporation unless and only to the extent that the court in which such action or
suit was brought shall determine that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to be indemnified for such expenses which the court shall
deem proper.
Section 145 of GCL further provides that to the extent a director or
officer of a corporation has been successful in the defense of any action, suit
or proceeding referred to in subsection (a) and (b) or in the defense of any
claim, issue or matter therein, such officer or director shall be indemnified
against expenses actually and reasonably incurred by him or her in connection
therewith; that indemnification provided for by Section 145 shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled;
and that the corporation may purchase and maintain insurance on behalf of a
director or officer of the corporation against any liability asserted against
such officer or director and incurred by him or her in any such capacity or
arising out of his or her status as such, whether or not the corporation would
have the power to indemnify him or her against such liabilities under Section
145.
The Company's Restated Certificate of Incorporation, as amended (the
"Certificate of Incorporation"), includes a provision eliminating such personal
liability. The Certificate of Incorporation, as well as the By-Laws of the
Company, provide for the indemnification of the officers and directors of the
Company to the fullest extent permitted under the GCL. In addition, the Company
has executed agreements with the officers and directors of the Company that
require the Company to indemnify such individuals for liabilities incurred by
them because of an act, omission, neglect or breach of duty committed while
acting in the capacity of an officer or director. Insofar as indemnification for
liabilities arising under the Securities Act of 1933, as amended (the
"Securities Act") may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, the Company has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
4 Kellstrom Industries, Inc. 1997 Stock Option Plan (incorporated by
reference to Appendix B of the Definitive Proxy Statement on
Schedule 14A relating to the 1998 Annual Meeting of Stockholders
filed on April 29, 1998).
5 Opinion of Akerman, Senterfitt & Eidson, P.A.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Akerman, Senterfitt & Eidson, P.A. (included in Exhibit 5).
24 Power of Attorney (see signature page).
2
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ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Securities Act of 1933
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and is, therefore, unenforceable. In the event a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer, or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer, or
controlling person of the registrant in connection with the securities
being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication
of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Sunrise, State of Florida on August 26, 1998.
KELLSTROM INDUSTRIES, INC.
By: /s/ Zivi R. Nedivi
-------------------------------------
Zivi R. Nedivi
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below and on the following page constitutes and appoints Zivi
R. Nedivi and Michael Wallace as his true and lawful attorneys-in-fact and
agents, each acting alone, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments to this Registration Statement, including post-effective
amendments, 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, and each of them, full power and
authority of 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
might or could do in person, and hereby ratifies and confirms all that said
attorneys-in-fact and agents, each acting alone, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Zivi R. Nedivi President, Chief Executive August 26, 1998
- ------------------------------- Officer and Director
Zivi R. Nedivi (Principal Executive
Officer
/s/ Yoav Stern Chairman of the Board August 26, 1998
- -------------------------------
Yoav Stern
/s/ Michael Wallace Chief Financial Officer August 26, 1998
- ------------------------------- (Principal Financial and
Michael Wallace Accounting Officer
/s/ John S. Gleason Executive Vice President August 26, 1998
- ------------------------------- and Director
John S. Gleason
/s/ Niv Harizman Director August 26, 1998
- -------------------------------
Niv Harizman
/s/ David Jan Mitchell Director August 26, 1998
- -------------------------------
David Jan Mitchell
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description Page No.
- ----------- ----------- --------
<S> <C> <C>
4 Kellstrom Industries, Inc. 1997 Stock Option Plan -
(incorporated by reference to Appendix B of the Definitive
Proxy Statement on Schedule 14A relating to the 1998 Annual
Meeting of Stockholders filed on April 29, 1998).
5 Opinion of Akerman, Senterfitt & Eidson, P.A. 5
23.1 Consent of KPMG Peat Marwick LLP. 7
23.2 Consent of Akerman, Senterfitt & Eidson, P.A. (included in
Exhibit 5). 5
24 Power of Attorney (see signature page). 4
</TABLE>
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EXHIBIT 5.1
OPINION OF AKERMAN, SENTERFITT & EIDSON, P.A.
August 26, 1998
Kellstrom Industries, Inc.
14000 N.W. 4th Street
Sunrise, Florida 33325
RE: Registration Statement on Form S-8 for Kellstrom Industries, Inc.
1997 Stock Option Plan
Ladies and Gentlemen:
On the date hereof, Kellstrom Industries, Inc., a Delaware corporation
("the Company"), filed with the Securities and Exchange Commission ("the
Commission"), a Registration Statement on Form S-8 (the "Registration
Statement"), under the Securities Act of 1933, as amended (the "Act"). The
Registration Statement relates to the offering and sale by the Company of up to
1,000,000 shares of the Company's common stock, par value $.001 per share (the
"Common Stock"), pursuant to stock options to purchase 1,000,000 shares of
Common Stock (the "Options") granted or to be granted under the Company's 1997
Stock Option Plan (the "1997 Plan"). We have acted as special counsel to the
Company in connection with the preparation and filing of the Registration
Statement.
In connection therewith, we have examined and relied upon the original
or a copy, certified to our satisfaction, of (i) the Certificate of
Incorporation and Bylaws of the Company, as amended; (ii) records of corporate
proceedings of the Company authorizing the 1997 Plan and the preparation of the
Registration Statement and related matters; (iii) the Registration Statement and
exhibits thereto; and (iv) such other documents and instruments as we have
deemed necessary for the expression of the opinions herein contained. In making
the foregoing examinations, we have assumed the genuineness of all signatures
and the authenticity of all documents submitted to us as originals, and the
conformity to original documents of all documents submitted to us as certified
or photostatic copies. As to various questions of fact material to this opinion,
we have relied, to the extent we deemed reasonably appropriate, upon
representations of officers or directors of the Company and upon documents,
records and instruments furnished to us by the Company, without independently
checking or verifying the accuracy of such documents, records and instruments.
Based upon the foregoing examination, we are of the opinion that,
assuming that the Company maintains an adequate number of authorized and
unissued shares of Common Stock available for issuance to those persons who
exercise Options granted under the 1997 Plan and the consideration for shares of
Common Stock issued pursuant to such Options is actually received by the Company
as provided in the 1997 Plan, the shares of Common Stock issued pursuant to the
exercise of Options granted under and in accordance with the terms of the 1997
Plan will be duly and validly issued, fully paid and nonassessable.
We advise you that the foregoing opinion is limited to the securities
laws of the United States of America and the corporate laws of the State of
Delaware and that we express no opinion herein concerning the applicability or
effect of any laws of any other jurisdiction.
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We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we come
within the category of persons whose consent is required by Section 7 of the Act
or the rules and regulations of the Commission thereunder.
Sincerely,
AKERMAN, SENTERFITT & EIDSON, P.A.
By: /s/ Akerman, Senterfitt & Eidson, P.A.
--------------------------------------
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EXHIBIT 23.1
Consent of Independent Public Accountants
To the Board of Directors:
Kellstrom Industries, Inc.
We consent to incorporation by reference in the Registration Statement on Form
S-8 of Kellstrom Industries, Inc. of our report dated February 27, 1998 relating
to the consolidated balance sheets of Kellstrom Industries, Inc. as of December
31, 1997 and 1996, and the related consolidated statements of earnings,
stockholders' equity and cash flows for each of the years in the three-year
period ended December 31, 1997, which report appears in the December 31, 1997
annual report on Form 10-K of Kellstrom Industries, Inc.
We consent to incorporation by reference in the Registration Statement on Form
S-8 of Kellstrom Industries, Inc. of our report dated May 12, 1998 relating to
the balance sheet of Integrated Technology Corp. as of December 31, 1997, and
the related statements of earnings, stockholders' equity and cash flows for the
year then ended December 31, 1997, which report appears in the Form 8-K/A of
Kellstrom Industries, Inc. dated May 18, 1998.
We consent to incorporation by reference in the Registration Statement on Form
S-8 of Kellstrom Industries, Inc. of our report dated May 13, 1998 relating to
the combined balance sheet of Aerocar Aviation Corp. and Aerocar Parts, Inc. as
of December 31, 1997, and the related combined statements of earnings,
shareholders' equity and cash flows for the year ended December 31, 1997, which
report appears in the Form 8-K of Kellstrom Industries, Inc. dated May 18, 1998.
/s/KPMG Peat Marwick LLP
- -------------------------------
KPMG Peat Marwick LLP
Fort Lauderdale, Florida
August 5, 1998
7
