<PAGE> 1
As filed with the Securities and Exchange Commission on June 4, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------
KELLSTROM INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3753725
(State or other juris- (I.R.S. Employer
diction of incorporation Identification
or organization) Number)
1100 INTERNATIONAL PARKWAY
SUNRISE, FLORIDA 33323
(954) 845-0427
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
KELLSTROM INDUSTRIES, INC. 1998 STOCK OPTION PLAN
STOCK OPTION AGREEMENTS
(full title of the plan)
--------------
ZIVI R. NEDIVI
PRESIDENT AND CHIEF EXECUTIVE OFFICER
KELLSTROM INDUSTRIES, INC.
1100 INTERNATIONAL PARKWAY
SUNRISE, FLORIDA 33323
(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.
450 EAST LAS OLAS BOULEVARD, SUITE 950
FORT LAUDERDALE, FLORIDA 33301
(954) 463-2700
---------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=====================================================================================================================
Proposed maximum Proposed maximum
Title of Securities Amount to be offering price per aggregate offering Amount of
to be registered registered share price registration fee
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 175,000 shares(1) $17.88(2) $ 3,129,000 $ 869.86
par value per share
- ---------------------------------------------------------------------------------------------------------------------
Common Stock, $.001 542,000 shares(3) $16.00(4) $ 8,672,000 $2,410.82
par value per share
- ---------------------------------------------------------------------------------------------------------------------
TOTAL: 717,000 shares $11,801,000 $3,280.68
=====================================================================================================================
</TABLE>
<PAGE> 2
(1) For the sole purpose of calculating the registration fee, the number of
shares to be registered under this Registration Statement has been
broken down into two subtotals. This subtotal represents the number of
shares authorized to be issued under the Kellstrom Industries, Inc.
1998 Stock Option Plan.
(2) 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"), based on the average (calculated to
the nearest cent) of the high and low prices of the Common Stock as
reported on the NASDAQ National Market on May 28, 1999.
(3) The subtotal represents the number of shares issuable upon exercise of
presently outstanding options (options that have been granted as of the
date of this Registration Statement) issued pursuant to Stock Option
Agreements between the Company and certain optionholders.
(4) Estimated solely for the purpose of calculating the registration fee
which was computed in accordance with Rule 457(h) of the Act, based on
the average exercise price (rounded to the nearest cent) at which the
options outstanding whose exercise will result in the issuance of
shares being registered may be exercised.
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") with the Securities and Exchange Commission (the "Commission") are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998, filed on March 31, 1999.
(b) The Company's Definitive Proxy Statement on Schedule 14A,
filed on April 30, 1999.
(c) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1998, filed on May 14, 1999.
(d) The Company's Current Report on Form 8-K filed on January 14,
1999.
(e) The Company's Current Report on Form 8-K/A filed on March 16,
1999.
(f) 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.
2
<PAGE> 3
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 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 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 Commission such
indemnification is against public policy as expressed in the Act and is
therefore unenforceable.
3
<PAGE> 4
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
4.1 Kellstrom Industries, Inc. 1998 Stock Option Plan
(incorporated by reference to Annex A of the Definitive Proxy
Statement on Schedule 14A relating to the 1999 Annual Meeting
of Stockholders filed on April 30, 1999).
4.2 Form of Stock Option Agreement.
5 Opinion of Akerman, Senterfitt & Eidson, P.A.
23.1 Consent of KPMG LLP.
23.2 Consent of Akerman, Senterfitt & Eidson, P.A. (included in
Exhibit 5).
24 Power of Attorney (see signature page).
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 percent 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) do 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
4
<PAGE> 5
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 Act 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.
5
<PAGE> 6
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 this 4th day of
June, 1999.
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.
Signature Title Date
/s/ Zivi R. Nedivi President, Chief Executive June 4, 1999
- ------------------- Officer and Director
Zivi R. Nedivi (Principal Executive
Officer)
/s/ Yoav Stern Chairman of the Board of June 4, 1999
- ------------------- Directors
Yoav Stern
/s/ Michael Wallace Chief Financial Officer June 4, 1999
- ------------------- (Principal Financial and
Michael Wallace Accounting Officer)
/s/ Niv Harizman Director June 4, 1999
- -------------------
Niv Harizman
Director June __, 1999
- -------------------
David Jan Mitchell
Director June __, 1999
- -------------------
General William Lyon
/s/ Admiral William J. Director June 4, 1999
Crowe, Jr.
- -------------------
Admiral William J. Crowe,
Jr.
7
<PAGE> 7
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
No. Description
- ------- -----------
<S> <C>
4.1 Kellstrom Industries, Inc. 1998 Stock Option Plan
(incorporated by reference to Annex A of the Definitive Proxy
Statement on Schedule 14A relating to the 1999 Annual Meeting
of Stockholders filed on April 30, 1999).
4.2 Form of Stock Option Agreement
5 Opinion of Akerman, Senterfitt & Eidson, P.A.
23.1 Consent of KPMG LLP.
23.2 Consent of Akerman, Senterfitt & Eidson, P.A. (included in
Exhibit 5).
24 Power of Attorney (see signature page).
</TABLE>
7
<PAGE> 1
EXHIBIT 4.2
KELLSTROM INDUSTRIES, INC.
STOCK OPTION AGREEMENT
This Stock Option Agreement ("Agreement") is entered into as
of____________, 199__, between Kellstrom Industries, Inc., a Delaware
corporation (the "Company"), and ____________________ (the "Optionee").
RECITALS
The Company desires to grant, and the Optionee desires to accept, an
option to purchase shares of the Company's common stock, $.001 par value per
share (the "Common Stock"), upon the terms and conditions set forth in this
Agreement.
TERMS OF AGREEMENT
The parties hereto agree as follows:
1. Grant. The Company hereby grants to the Optionee an option
(the "Option") to purchase _________ shares of Common Stock, at a purchase price
per share of $_________. This Option is intended to be treated as an option
which does not qualify as an incentive stock option within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code").
2. Restrictions on Exercisability. Except as specifically
provided otherwise herein, the Option will become exercisable in accordance with
the following schedule based upon the period of the Optionee's continuous
employment with the Company or a subsidiary thereof following the date hereof:
<TABLE>
<CAPTION>
Incremental Cumulative
Period of Percentage Percentage of
Continuous of Option Option
Employment Exercisable Exercisable
---------- ----------- -----------
<S> <C> <C>
Less than 1
year _____% _____%
1 year _____% _____%
2 years _____% _____%
3 years _____% _____%
</TABLE>
No shares of Common Stock may be purchased pursuant to the Option hereunder
unless the Optionee shall have remained in the continuous employ of the Company
or a subsidiary thereof for at least one year from the date hereof. Unless
sooner terminated, the Option will expire if and to the extent it is not
exercised, ten years from the date hereof.
3. Exercise. The Option may be exercised in whole or in part in
accordance with the schedule set forth in Section 2 above by delivering to the
Secretary of the Company (a) a copy of a completed Option Exercise Form (in the
form attached hereto) and (b) payment in full of the exercise price, together
with the amount, if any, deemed necessary by the Company to enable it to satisfy
any income tax withholding obligations with respect to the exercise (unless
other arrangements acceptable to the Company are made for the satisfaction of
such withholding obligations). The exercise price shall be payable (i) in cash
or by check payable to the order of the Company in an amount equal to the
exercise price of the Option, (ii) by delivery of shares of Common Stock owned
by the Optionee having a fair market value equal in amount to the exercise price
of the Option or (iii) any combination of (i) and (ii); provided, however, that
payment of the exercise price by delivery of shares of Common Stock owned by the
Optionee may be made only upon the condition that such payment does not result
in a charge to earnings for
<PAGE> 2
financial accounting purposes as determined by the Board of Directors of the
Company (the "Board"), unless such condition is waived by the Board.
4. Rights as Stockholder. No shares of Common Stock shall be sold
or delivered pursuant to the Option until full payment for such shares has been
made. The Optionee shall not be deemed for any purpose to be a stockholder of
the Company with respect to the Option except to the extent that the Option
shall have been exercised with respect thereto and, in addition, a stock
certificate shall have been issued theretofore and delivered to the Optionee.
Except as otherwise provided in Section 8 of this Agreement, no adjustment shall
be made for dividends or distributions or other rights for which the record date
is prior to the date such stock certificate is issued.
5. Nontransferability. The Option is not assignable or
transferable other than by will or the laws of descent, and the Option shall be
exercisable during the lifetime of the Optionee only by the Optionee. The Option
hereby granted shall be null and void and without effect upon the bankruptcy of
the Optionee, or upon any attempted assignment or transfer except as herein
provided, including without limitation any purported assignment, whether
voluntary or by operation of law, pledge, hypothecation or other disposition,
attachment, trustee process or similar process, whether legal or equitable, upon
the Option.
6. Termination of Service, Disability or Death. If the Optionee
ceases to perform services for the Company or one of its subsidiaries, except as
set forth below, the Option will be terminated three months after the date the
Optionee ceases to perform services for the Company or one of its subsidiaries,
or on the date on which the Option expires by its terms, whichever occurs first.
If the Optionee ceases to perform services for the Company or one of its
subsidiaries because of dismissal for cause or because the Optionee is in breach
of any employment agreement, or because of the termination of employment by the
Optionee, the Option will terminate on the date the Optionee ceases to perform
services for the Company or one of its subsidiaries. If the Optionee ceases to
perform services for the Company or one of its subsidiaries because the Optionee
has become permanently disabled (within the meaning of Section 22(e)(3) of the
Code), the Option shall terminate twelve months after the date the Optionee
ceases to perform services for the Company or one of its subsidiaries, or on the
date on which the Option expires by its terms, whichever occurs first. In the
event of the death of the Optionee, the Option shall terminate twelve months
after the date of death, or on the date on which the Option expires by its
terms, whichever occurs first. Any unexercised portion of the Option shall
automatically terminate without notice and become null and void subsequent to
ten (10) years from the date of grant hereunder. In the event that the Optionee
ceases to perform services for the Company for any reason set forth above, the
Option shall be exercisable (if at all) only to the extent that the Option has
vested and is in effect on the date the Optionee so ceases to perform services.
7. Securities Registration Required.
a. Unless the shares to be issued upon exercise of the
Option have been effectively registered under the Securities Act of 1933, as
amended (the "1933 Act"), the Company shall be under no obligation to issue any
shares covered by any Option unless the Optionee shall give a written
representation and undertaking to the Company which is satisfactory in form and
scope to counsel for the Company and upon which, in the opinion of such counsel,
the Company may reasonably rely, that the Optionee is acquiring the shares
issued pursuant to such exercise of the Option for his or her own account as an
investment and not with a view to, or for sale in connection with, the
distribution of any such shares, and that he or she will make no transfer of the
same except in compliance with any rules and regulations in force at the time of
such transfer under the 1933 Act, or any other applicable law, and that if
shares are issued without such registration, a legend to this effect may be
endorsed upon the securities so issued. The Option shall in no event be
exercisable and shares shall not be issued hereunder if, in the opinion of
counsel to the Company, such exercise and/or issuance would result in a
violation of federal or state securities laws.
b. Notwithstanding anything to the contrary contained
herein, the Company shall be under no obligation to register or qualify any
shares covered by the Option under federal or state securities laws unless
otherwise agreed to by the Company in writing.
2
<PAGE> 3
In the event that the Company shall, nevertheless, deem it necessary or
desirable to register under the 1933 Act or other applicable statutes any shares
with respect to which the Option shall have been exercised, or to qualify any
such shares for exemption from the 1933 Act or other applicable statutes, then
the Company may take such action and may require from each grantee such
information in writing for use in any registration statement, supplementary
registration statement, prospectus, preliminary prospectus or offering circular
as is reasonably necessary for such purpose and may require reasonable indemnity
to the Company and its officers and directors from such holder against all
losses, claims, damages and liabilities arising from such use of the information
so furnished and caused by any untrue statement of any material fact therein or
caused by the omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made.
8. Change in Control; Capital Changes.
a. In the event that the then-outstanding shares of
Common Stock are changed into or exchanged for a different number or kind of
shares or other securities of the Company or of another corporation by reason of
any reorganization, merger, consolidation, recapitalization, reclassification,
stock split-up, combination of shares, or dividends payable in capital stock,
appropriate adjustment shall be made in accordance with Section 424(a) of the
Code in the number and kind of shares as to which the Option or portion thereof
then unexercised shall be exercisable, to the end that the proportionate
interest of the Optionee shall be maintained as before the occurrence of such
event; such adjustment, in the case of options, shall be made without change in
the total price applicable to the unexercised portion of the Option and with a
corresponding adjustment in the exercise price per share.
b. Notwithstanding Section 8(a) above, unless otherwise
determined by the Board in its sole discretion, in the case of any Change in
Control (as hereinafter defined) of the Company, the purchaser(s) of the
Company's assets or stock may, in his, her or its discretion, deliver to the
Optionee the same kind of consideration that is delivered to the stockholders of
the Company as a result of such Change in Control, or the Board may cancel the
Option in exchange for consideration in cash or in kind, which consideration in
both cases shall be equal in value to the value of those shares of stock or
other securities the Optionee would have received had the Option been exercised
and no disposition of the shares acquired upon such exercise been made prior to
such Change in Control, less the exercise price therefor. Upon receipt of such
consideration, the Option shall immediately terminate and be of no further force
and effect. The value of the stock or other securities the Optionee would have
received if the Option had been exercised shall be determined in good faith by
the Board. The foregoing provisions of this Section 8(b) shall be inapplicable
to the Option if it was granted within six (6) months before the occurrence of a
Change in Control and if the Optionee is subject to the reporting requirements
of Section 16(a) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and no exemption from liability under Section 16(b) of the
Exchange Act is otherwise available to the Optionee.
c. In the event of a Change in Control under subsection
(e)(i), (e)(ii) or (e)(iii) below, the Option shall immediately become
exercisable. In the event of a Change in Control under subsection (e)(iv) below,
the Board may, in its sole discretion, elect to accelerate the exercisability of
the Option.
d. Notwithstanding any provisions hereof to the
contrary, if the Option is accelerated under subsection (c) above, the portion
of the Option that may be exercised to acquire shares that the Optionee would
not be entitled to acquire but for such acceleration (the "Acceleration
Shares"), shall be limited to that number of Acceleration Shares which may be
acquired without causing the Optionee to be deemed to have received an "excess
parachute payment, " as defined in Section 280G of the Code, determined by
taking into account all other "parachute payments" to the Optionee within the
meaning of Section 280G of the Code. The Optionee shall have no further right to
acquire the balance of the Acceleration Shares which may not be acquired by
reason of the limitation set forth in this Section 8(d).
e. A "Change in Control" shall mean:
3
<PAGE> 4
(i) (x) a reorganization, merger, consolidation or
other form of corporate transaction or series of transactions, in each
case, with respect to which persons who were the stockholders of the
Company immediately prior to such reorganization, merger or
consolidation or other transaction do not, immediately thereafter, own
more than fifty percent (50%) of the combined voting power entitled to
vote generally in the election of directors of the reorganized, merged
or consolidated company's then outstanding voting securities, or (y) a
liquidation or dissolution of the Company or (z) the sale, lease,
exchange or other disposition of all or substantially all of the assets
of the Company; or
(ii) the acquisition by any person, or any two or
more persons acting as a group, and all affiliates of such person or
persons, who prior to such time owned less than fifty percent (50%) of
the combined voting power entitled to vote generally in the election of
directors, of additional voting power in one or more transactions, or
series of transactions, such that following such transaction or
transactions, such person or group and affiliates beneficially own
fifty percent (50%) or more of the combined voting power entitled to
vote generally in the election of directors; or
(iii) individuals who, as of the date hereof,
constitute the Company's Board (as of the date hereof the "Incumbent
Board") cease for any reason to constitute at least a majority of the
Board, provided that any person becoming a director subsequent to the
date hereof whose election, or nomination for election by the Company's
stockholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board (other than an election
or nomination of an individual whose initial assumption of office is in
connection with an actual or threatened election contest relating to
the election of the Directors of the Company, as such terms are used in
Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) shall
be, for purposes of this Agreement, considered as though such person
were a member of the Incumbent Board; or
(iv) the acquisition (other than from the Company or
its subsidiaries) by any person, entity or "group," within the meaning
of Section 13(d)(3) or 14(d)(2) of the Exchange Act (excluding, for
this purpose, the Company or its subsidiaries, or any employee benefit
plan of the Company or its subsidiaries), of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of 19% or more of either the then outstanding shares of the Company's
Common Stock or the combined voting power of the Company's then
outstanding voting securities entitled to vote generally in the
election of directors.
f. No fraction of a share shall be purchasable or
deliverable upon the exercise of the Option, but in the event any adjustment
hereunder in the number of shares covered by the Option shall cause such number
to include a fraction of a share, such fraction shall be adjusted to the nearest
smaller whole number of shares.
9. No Employment Rights. Nothing in this Agreement shall confer
upon the Optionee any right with respect to the continuation of his or her
employment by the Company or any subsidiary or interfere in any way with the
right of the Company or any subsidiary, subject to the terms of any separate
employment agreement to the contrary, at any time to terminate such employment
or to increase or decrease the compensation of the Optionee from the rate in
existence at the time of the grant of the Option.
10. Miscellaneous.
a. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
permitted assigns.
b. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware. This Agreement constitutes
the entire agreement between the parties with respect to the subject matter
hereof, and controls and supersedes any prior understandings, agreements or
representations by or between the parties, written
4
<PAGE> 5
or oral between the parties with respect to its subject matter and may not be
modified except by written instrument executed by the parties.
c. Any notice under this Agreement shall be in writing
and shall be deemed to have been duly given when delivered personally or when
deposited in the United States mail, registered, postage prepaid, and addressed,
in the case of the Company, to the Company's Secretary at 1100 International
Parkway, Sunrise, Florida 33323, or if the Company should move its principal
office, to such principal office, and, in the case of the Optionee, to the
Optionee's last permanent address as shown on the Company's records, subject to
the right of either party to designate some other address at any time hereafter
in a notice satisfying the requirements of this Section 10(c).
IN WITNESS WHEREOF, this Agreement has been executed as of the date
first above written.
KELLSTROM INDUSTRIES, INC.
By:
---------------------------------------
Zivi R. Nedivi
President and Chief Executive Officer
-------------------------------------------
Optionee:
----------------------------------
5
<PAGE> 6
KELLSTROM INDUSTRIES, INC.
OPTION EXERCISE FORM
I hereby exercise the right to purchase _______________ shares of
common stock, $.001 par value per share, of Kellstrom Industries, Inc. pursuant
to the option granted to me as of _______________, 1999. Enclosed herewith is
$_____________, an amount equal to the total exercise price for the shares of
common stock being purchased pursuant to this Option Exercise Form.
Date:
----------------------- -----------------------------
Optionee
Please send a completed copy of this Option Exercise Form to:
Anthony Motisi, Secretary
Kellstrom Industries, Inc.
1100 International Parkway
Sunrise, Florida 33323
<PAGE> 1
EXHIBIT 5
OPINION OF AKERMAN, SENTERFITT & EIDSON, P.A.
June 4, 1999
Kellstrom Industries, Inc.
1100 International Parkway
Sunrise, Florida 33323
RE: Registration Statement on Form S-8 for Kellstrom Industries,
Inc.
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 (i) up
to 175,000 shares of the Company's common stock, par value $.001 per share (the
"Common Stock"), pursuant to stock options to purchase 175,000 shares of Common
Stock (the "1998 Plan Options") granted or to be granted under the Company's
1998 Stock Option Plan (the "1998 Plan"), and (ii) 542,000 shares of Common
Stock pursuant to stock options to purchase 542,000 shares of Common Stock
(together with the 1998 Plan Options, the "Options") granted pursuant to stock
option agreements with certain employees or consultants of the Company (the
"Option Agreements"). 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 Option Agreements 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 1998 Plan and the Option Agreements and the
consideration for shares of Common Stock issued pursuant to such Options is
actually received by the Company as provided in the 1998 Plan and the Option
Agreements, the shares of Common Stock issued pursuant to the exercise of
Options granted under and in accordance with the terms of the 1998 Plan and the
Option Agreements 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.
<PAGE> 2
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.
-----------------------------------------
<PAGE> 1
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 17, 1999, except
as to note 18 thereto, which is dated as of March 30, 1999, relating to the
consolidated balance sheets of Kellstrom Industries, Inc. and subsidiaries as of
December 31, 1998 and 1997, and the related consolidated statements of earnings,
stockholders' equity and comprehensive income, and cash flows for each of the
years in the three-year period ended December 31, 1998, which report appears in
the December 31, 1998 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 March 15, 1999 relating to
the consolidated balance sheet of Solair, Inc. and subsidiary as of March 31,
1998, and the related consolidated statements of operations, stockholders'
deficit, and cash flows for the year then ended, which report appears in the
Form 8-K/A of Kellstrom Industries, Inc. dated March 12, 1999.
/s/KPMG LLP
KPMG LLP
Fort Lauderdale, Florida
June 4, 1999
