-----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, WPq/o1/+lPUuf5wTPHN0SoJUeF8BkuRF8dE9lrsltGXRCbcMcpCdowjARB/FgoCA YxqzV5TGeeUJneWws+VsJg== 0000930661-02-003324.txt : 20020919 0000930661-02-003324.hdr.sgml : 20020919 20020919172020 ACCESSION NUMBER: 0000930661-02-003324 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 20020916 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20020919 FILER: COMPANY DATA: COMPANY CONFORMED NAME: KITTY HAWK INC CENTRAL INDEX KEY: 0000932110 STANDARD INDUSTRIAL CLASSIFICATION: AIR TRANSPORTATION, NONSCHEDULED [4522] IRS NUMBER: 752564006 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-25202 FILM NUMBER: 02768043 BUSINESS ADDRESS: STREET 1: P O BOX 612787 STREET 2: 1515 W 20TH ST CITY: DALLAS/FT WORTH INTN STATE: TX ZIP: 75261 BUSINESS PHONE: 9724562200 MAIL ADDRESS: STREET 1: P O BOX 612787 STREET 2: 1515 W 20TH ST CITY: DALLAS/FT WORTH INTN STATE: TX ZIP: 75261 8-K 1 d8k.txt FORM 8-K ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------- FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): September 16, 2002 ------------------- Kitty Hawk, Inc. (Exact name of registrant as specified in its charter) Delaware 0-25202 75-2564006 (State or other jurisdiction of (Commission File Number) (I.R.S. Employer incorporation) Identification No.) 1515 West 20th Street 75261 P.O. Box 612787 (Zip Code) DFW Airport, Texas (Address of principal executive offices) Registrant's telephone number, including area code: (972) 456-2200 Not Applicable (Former name or former address, if changed since last report) ================================================================================ Item 5. Other Events and Regulation FD Disclosure. General As previously reported, on or about May 1, 2000, Kitty Hawk, Inc. (the "Company") and all of its subsidiaries filed voluntary petitions for relief under Chapter 11 of the United States Bankruptcy Code in the United States Bankruptcy Court for the Northern District of Texas, Fort Worth Division (the "Bankruptcy Court"). These proceedings are being jointly administered under case No. 400-42141-BJH-11. On August 5, 2002, the Bankruptcy Court entered an order dated August 5, 2002 confirming the Debtors' Final Joint Plan of Reorganization dated August 2, 2002, with certain modifications (as so modified, the "Plan"). The Plan provides that the effective date of the Plan will occur on or before September 1, 2002. As of the date hereof, the Company is prepared to consummate the Plan immediately upon obtaining from the Department of Transportation (the "DOT") a determination that the post-confirmation ownership of the Company's common stock satisfies the statutory ownership limitations applicable to U.S. air carriers and that the reorganized Company meets the DOT's air carrier fitness requirements. The DOT has expressed concern about the amount of foreign ownership of the common stock to be issued by the Company at the effective date, and the Company is working diligently to resolve those concerns. The DOT has stated that once the foreign ownership issue is resolved, the Company will be fit to continue to hold its air carrier certificate. Under federal law, at least 75% of the voting stock of a U.S. air carrier must be owned or controlled by U.S. citizens. The Company's Amended and Restated Certificate of Incorporation restricts the aggregate voting power of all non-U.S.-citizen holders to 22.5% of the total of votes cast on any matter submitted to a stockholder vote. That restriction was deemed satisfactory by the DOT in previous reviews when the Company's stock was traded on NASDAQ and readily available for purchase by foreign interests. A significant part of the Company's Senior Secured Notes is held by investment funds that are partnerships with one or more non-U.S.-citizen limited partners, although in most cases the investment funds are controlled by U.S.-citizen general partners. The DOT is concerned that stock to be issued to those funds, which do not qualify under federal law as U.S. citizens because one or more partners are not U.S. citizens, and whose voting power is limited by the Company's Amended and Restated Certificate of Incorporation, may nevertheless exceed the amount of non-U.S. equity interest that the DOT should approve. The Company believes it will be able to successfully resolve this issue and obtain the necessary approval from the DOT by October 1, 2002. As a result, on September 16, 2002, the Company filed a motion (the "Motion") with the Bankruptcy Court to modify the last date on which the Plan may go effective from September 1, 2002 to October 1, 2002. A copy of the Motion is filed herewith as Exhibit 99.1. A hearing on the Motion has been set for September 26, 2002 at 1:30 p.m., Dallas, Texas time. Forward-Looking Statements This report contains and incorporates forward-looking statements, including statements regarding the Company's continuing operations and business, future financial performance and financial condition. Such forward-looking statements involve known and unknown risks, uncertainties and other important factors that could cause the actual plans of the Company to differ materially from any future plans 1 expressed or implied by such forward-looking statements. Such factors include, but are not limited to: world-wide business and economic conditions; acquisitions, recruiting and new business solicitation efforts; product demand and the rate of growth in the air cargo industry; the impact of competitors and competitive aircraft and aircraft financing availability; the ability to attract and retain new and existing customers; jet fuel prices; normalized aircraft operating costs and reliability; and regulatory actions. All forward-looking statements involve substantial risks and uncertainties beyond the Company's control. The Company undertakes no obligation to update or revise any forward-looking statements contained in the Plan or this report for events or circumstances after the date on which such forward-looking statements are made. New factors emerge from time to time, and it is not possible for the Company to predict all such factors. Item 7. Financial Statements and Exhibits (a) Financial Statements of businesses acquired. Not applicable (b) Pro forma financial information. Not applicable (c) Exhibits The Exhibit Index attached hereto is incorporated by reference herein. * * * * * 2 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Company has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. KITTY HAWK, INC. Date: September 19, 2002 By: /s/ Drew Keith -------------------------------- Name: Drew Keith Title: Chief Financial Officer EXHIBIT INDEX Exhibit Number Description - ------- ----------- 99.1 Debtors' Motion to Modify Debtors' Final Joint Plan of Reorganization dated as of September 16, 2002 EX-99.1 3 dex991.txt DEBTORS'S MOTION Exhibit 99.1 Robert D. Albergotti John D. Penn Sarah B. Foster State Bar No. 00969800 State Bar No. 15752300 State Bar No. 07297500 Haynes and Boone, LLP Haynes and Boone, LLP Haynes and Boone, LLP 901 Main Street, Suite 3100 201 Main Street, Suite 2200 600 Congress Ave., Suite 1600 Dallas, Texas 75202 Fort Worth, Texas 76102 Austin, Texas 78701 Tel. No. (214) 651-5000 Tel. No. (817) 347-6610 Tel. No. (512) 867-8400 Fax No. (214) 651-5940 Fax No. (817) 348-2300 Fax No. (512) 867-8470
Attorneys for Debtors IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION IN RE: | Chapter 11 | KITTY HAWK, INC., et. al | Case no. 400-42069-BJH and | Case nos. 400-42141 through Debtors | Case no. 400-42149 | | Jointly Administered Under | Case no. 400-42141-BJH | | | Hearing Date (Requested): Sept. 26, 2002 | Hearing Time (Requested): 1:30 p.m. | Location (Requested): Dallas, Texas DEBTORS' MOTION TO MODIFY DEBTORS' FINAL JOINT PLAN OF REORGANIZATION Kitty Hawk, Inc. ("Kitty Hawk"), Kitty Hawk Aircargo ("Aircargo"), Inc., Kitty Hawk Charters Inc., Kitty Hawk International, Inc., Kitty Hawk Cargo, Inc., Aircraft Leasing, Inc., American International Travel, Inc., Flight One Logistics, Inc., Longhorn Solutions, Inc. and OK Turbines, Inc., (together, the "Debtors"), debtors and debtors-in-possession herein, move this Court for the entry of an order approving a modification of the definition of the Effective Date in DEBTORS' MOTION TO MODIFY DEBTORS' FINAL JOINT PLAN OF REORGANIZATION the Debtors' Final Joint Plan of Reorganization (the "Plan") and in support of same respectfully represent: 1. This Court has jurisdiction over this Motion pursuant to 28 U.S.C. ss.ss. 157 and 1334. Venue of this proceeding is proper in this district pursuant to 28 U.S.C. ss.ss. 1408 and 1409. This motion is brought pursuant to 11 U.S.C. ss.1127. 2. On May 1, 2000 (the "Petition Date"), the Debtors/1/ filed their voluntary petitions for relief under Chapter 11 of the Bankruptcy Code. Since the Petition Date, the Debtors have continued to operate their businesses and manage their properties as debtors-in-possession pursuant to 11 U.S.C. ss.ss. 1107 and 1108. 3. On August 5, 2002, this Court entered its Order Confirming Debtors' Final Joint Plan of Reorganization (the "Confirmation Order"). The Plan defines the "Effective Date" as "the date selected by the Debtors that is on or prior to September 1, 2002 on which all of the conditions required in Section 9.1 have occurred, except as expressly waived as provided in Section 9.2 of the Plan." The Debtors wish to modify the definition of Effective Date to substitute October 1, 2002 for September 1, 2002 as the last date on which the Debtors will go effective. 4. The Debtors are ready to go effective in all respects except one. The Debtors have not yet been able to obtain all of the approvals needed from the Department of Transportation ("DOT") which has authority over Aircargo as a Part 121 certificated air carrier. - --------------- (1) With the exception of Flight One Logistics, Inc. which filed its voluntary Chapter 11 petition on April 27, 2000. DEBTORS' MOTION TO MODIFY DEBTORS' FINAL JOINT PLAN OF REORGANIZATION The DOT evaluates air carriers based on managerial capabilities, financial posture and compliance disposition. 5. The DOT has expressed concern about the percentage of foreign ownership of the common stock of Reorganized Kitty Hawk. As the Court will recall, the Articles of Incorporation of Reorganized Kitty Hawk specifically provide as follows: Notwithstanding any other provision of this Amended and Restated Certificate of Incorporation to the contrary, except as otherwise required by law not more than 22 1/2% of the aggregate number of votes that are entitled to be cast in connection with any vote on, or consent to, any matter shall be voted, or have consents executed with respect thereto, by or at the direction of persons (including corporations, partnerships or other entities) that are not "citizens of the United States" within the meaning of Section 40102(a)(15), Title 49, United States Code, as now in effect or as it may hereafter from time to time be amended (hereinafter referred to as "U.S. Citizens"); accordingly, if with respect to any matter, the total number of votes represented by Non-Citizen Shares (as hereinafter defined) voting on or consenting to such matter would, but for this sentence, exceed 22 1/2% of the total number of votes voting on or consenting to such matter, then the total number of votes represented by the Non-Citizen Shares (the "Non-Citizen Votes") voting on or consenting to such matter shall be limited to an aggregate of 22 1/2% of the total number of votes (including the Non-Citizen Votes) voting on or consenting to such matter, and any limitation on the voting rights of the Non-Citizen Shares arising by reason of this sentence shall be applied to all shares of capital stock that are Non-Citizen Shares. The limitation on the voting power of each of the Non-Citizen Shares that is a share of Common Stock shall be applied in the same proportion to the limitation on the voting power of each other Non-Citizen Share that is a share of Common Stock. The limitation on the voting power of each of the Non-Citizen Shares that is a share of Preferred Stock shall be applied in the same proportion to the limitation on the voting power of each other Non-Citizen Share that is a share of Preferred Stock. For the purposes of this paragraph, the phrase "Non-Citizen Shares" shall mean shares of capital stock of the Corporation the holder of which has, with respect to any particular matter, a right to vote on, or consent to, such matter and that may be voted, or have consents executed with respect thereto, by or at the direction of any holder who is not a U.S. Citizen. The Board of Directors may, at its discretion, provide for the establishment of a separate stock record to be maintained by or on behalf of the Corporation for the registration of ownership of capital stock that is owned by or for the account of holders who are not U.S. Citizens, and may adopt such bylaws, rules and regulations as it shall deem necessary or appropriate to carry out and enforce the foregoing provisions. This provision is designed to comply with statutory restrictions requiring that 75% of voting stock in an air carrier be owned or controlled by U.S. citizens. The DOT also looks at whether DEBTORS' MOTION TO MODIFY DEBTORS' FINAL JOINT PLAN OF REORGANIZATION the carrier and its parent are actually controlled by U.S. citizens. A number of the Senior Notes are currently held by off shore funds/2/. Although many of these funds are controlled by US entities, the DOT has indicated that certain off shore funds should transfer their right to receive stock to entities that are US citizens. This is easier said than done. The fund managers must comply with their agreements with their investors and act consistently with their fiduciary responsibilities in making any changes in fund investments. The Noteholders did not initially intend to be stockholders of Kitty Hawk when they invested in its debt and are being forced to be stockholders rather than being paid on their debt. The Debtors and their regulatory compliance counsel have been in an ongoing dialogue with both the funds and the DOT to try to resolve the issue in a way acceptable to both. That resolution did not occur before September 1, 2002 and has not occurred to date. However, the Debtors anticipate that it will be resolved before month end. 6. The Debtors are confident that a resolution will be reached with the affected Noteholders and the DOT. However, the Debtors missed the September 1, 2002 Effective Date set forth in the Plan. The Plan has not been substantially consummated. As stated above, the Debtors are ready to go effective and make all payments required under the Plan as soon as they have DOT approval. The Debtors' business is performing better than projected. The settlement with the Bank Group will free up additional funds for operations. Everything is on track with this one exception. Therefore, the Debtors seek entry of an order approving the nonsubstantive modification of the Plan to substitute "October 1, 2002" for "September 1, 2002" in the definition of the Effective Date. - --------------- (2) Although the Debtors were aware of one large foreign noteholder, the Debtors were not aware that other large noteholders had significant off shore holdings until recently. DEBTORS' MOTION TO MODIFY DEBTORS' FINAL JOINT PLAN OF REORGANIZATION PREMISES CONSIDERED, the Debtors request that this Court allow the Debtors to modify their Plan to provide that "October 1, 2002" is substituted for "September 1, 2002" in the definition of the Effective Date and grant to the Debtors such other and further relief to which they may justly be entitled. RESPECTFULLY SUBMITTED this 16th day of September, 2002. /s/ Sarah B. Foster by JDP ------------------------------------ Robert D. Albergotti John D. Penn Sarah B. Foster State Bar No. 00969800 State Bar No. 15752300 State Bar No. 07297500 Ian T. Peck Haynes and Boone, LLP Haynes and Boone, LLP State Bar No. 24013306 201 Main Street, Ste. 2200 600 Congress Ave., Ste. 1600 Haynes and Boone, LLP Fort Worth, Texas 76102 Austin, Texas 78701 901 Main Street, Ste. 3100 Tel. No. (817) 347-6610 Tel. No. (512) 867-8400 Dallas, Texas 75202 Fax No. (817) 348-2300 Fax No. (512) 867-8470 Tel. No. (214) 651-5000 Fax No. (214) 651-5940
Attorneys for Debtors CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing document was delivered to the parties listed on the attached "Service List" by first class mail on the 16th day of September, 2002. /s/ John D. Penn -------------------------------- DEBTORS' MOTION TO MODIFY DEBTORS' FINAL JOINT PLAN OF REORGANIZATION -----END PRIVACY-ENHANCED MESSAGE-----