-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, SxsXNUMZARVdm9GARDJMjvSRYyVPB0iVhMgKOKOawUk44aFLLHRcUguulCaklWvQ DABet+Fo6PpWxi7Eqhx2sg== 0000950144-99-007064.txt : 19990607 0000950144-99-007064.hdr.sgml : 19990607 ACCESSION NUMBER: 0000950144-99-007064 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19990604 EFFECTIVENESS DATE: 19990604 FILER: COMPANY DATA: COMPANY CONFORMED NAME: KELLSTROM INDUSTRIES INC CENTRAL INDEX KEY: 0000918275 STANDARD INDUSTRIAL CLASSIFICATION: AIRCRAFT ENGINES & ENGINE PARTS [3724] IRS NUMBER: 133753725 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-80015 FILM NUMBER: 99640773 BUSINESS ADDRESS: STREET 1: 1100 INTERNATIONAL PARKWAY CITY: SUNRISE STATE: FL ZIP: 33325 BUSINESS PHONE: 9548450427 MAIL ADDRESS: STREET 1: 1100 INTERNATIONAL PARKWAY CITY: SUNRISE STATE: FL ZIP: 33325 FORMER COMPANY: FORMER CONFORMED NAME: ISRAEL TECH ACQUISITION CORP DATE OF NAME CHANGE: 19940301 S-8 1 KELLSTROM INDUSTRIES, INC. FORM S-8 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 ---------
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 - --------------------------------------------------------------------------------------------------------------------- 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 =====================================================================================================================
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 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 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 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 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 7 INDEX TO EXHIBITS
Exhibit No. Description - ------- ----------- 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).
7 EX-4.2 2 FORM OF STOCK OPTION AGREEMENT 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:
Incremental Cumulative Period of Percentage Percentage of Continuous of Option Option Employment Exercisable Exercisable ---------- ----------- ----------- Less than 1 year _____% _____% 1 year _____% _____% 2 years _____% _____% 3 years _____% _____%
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 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 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 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 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 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 EX-5 3 OPINION OF AKERMAN, SENTERFITT & EDISON, P.A. 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. 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. ----------------------------------------- EX-23.1 4 CONSENT OF KPMG LLP 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 -----END PRIVACY-ENHANCED MESSAGE-----