-----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, QfETrDt6QTgaL6j56MhF7jJ2vv+RPXRym8zg/nkj2HfbJiVXFEeIFoqYqpEBWFan cGhoULGy/IkdsblND4YV8A== 0000950134-97-001941.txt : 19970320 0000950134-97-001941.hdr.sgml : 19970320 ACCESSION NUMBER: 0000950134-97-001941 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970319 EFFECTIVENESS DATE: 19970319 SROS: NONE 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: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-23597 FILM NUMBER: 97559454 BUSINESS ADDRESS: STREET 1: 1515 WEST 20TH ST STREET 2: SECOND FLOOR CITY: DALLAS/FORT WORTH IN STATE: TX ZIP: 75240 BUSINESS PHONE: 9724562200 MAIL ADDRESS: STREET 1: P O BOX 612787 CITY: DALLAS/FORT WORTH IN STATE: TX ZIP: 75261 S-8 1 FORM S-8 1 As filed with the Securities and Exchange Commission on March 19, 1997 Registration No. 333-______________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 KITTY HAWK, INC. ------------------------- (Exact name of registrant as specified in its charter) DELAWARE 75-2564006 - ------------------------------------ ------------------------------------------- (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) 1515 WEST 20TH STREET P.O. BOX 612787 DALLAS/FORT WORTH INTERNATIONAL AIRPORT, TEXAS 75261 - ---------------------------------------------- ----------- (Address of Principal Executive Offices) (Zip Code)
KITTY HAWK, INC. AMENDED AND RESTATED OMNIBUS SECURITIES PLAN ------------------------------------------------------------------ (Full title of the Plan) M. TOM CHRISTOPHER CHIEF EXECUTIVE OFFICER 1515 WEST 20TH STREET P.O. BOX 612787 DALLAS/FORT WORTH INTERNATIONAL AIRPORT, TEXAS 75261 (Name and address of agent for service) (972) 456-2200 ------------------------- (Telephone number, including area code, of agent for service) With a copy to: MICHAEL M. BOONE GREG R. SAMUEL Haynes and Boone, LLP 901 Main Street 3100 NationsBank Plaza Dallas, Texas 75202-3789 (214) 651-5000 CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------- Title of Securities Amount Maximum Offering Proposed Maximum Amount To Be Registered To Be Registered Price Per Share Aggregate Offering Price of Registration Fee - ------------------------------------------------------------------------------------------------------------------------- Common Stock $.01 par value . . . . 300,000 shares $11.9375 (1) $3,581,250 (1) $1,085.23 (1) - -------------------------------------------------------------------------------------------------------------------------
(1) The offering price per share, the aggregate offering price and the registration fee have been calculated in accordance with paragraphs (c) and (h)(1) of Rule 457 promulgated under the Securities Act of 1933 based on the average of the high and low sale prices for the Company's Common Stock reported on the NASDAQ National Market on March 14, 1997 ($11.9375 per share). ================================================================================ 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. Kitty Hawk, Inc. (the "Company") hereby incorporates by reference the following documents filed with the Securities and Exchange Commission (the "Commission"): (a) The Company's Annual Report on Form 10-K for the fiscal year ended August 31, 1996; (b) The Company's Quarterly Report on Form 10-Q for the quarter ended November 30, 1996; (c) The Company's Form 8-K dated December 4, 1996; and (d) The description of Common Stock set forth in "Item 1. Description of Registrant's Securities to be Registered," included in the Company's Registration Statement on Form 8-A as filed with the Commission on October 1, 1996. 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 which indicates that all securities offered hereunder have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date such documents are filed. Item 5. Interests of Named Experts and Counsel. Legal Matters The validity of the shares of Common Stock being sold in this offering will be passed upon for the Company by Haynes and Boone, LLP of Dallas, Texas, special counsel to the Company. Experts The consolidated financial statements of Kitty Hawk, Inc. appearing in Kitty Hawk, Inc.'s Annual Report on Form 10-K for the fiscal year ended August 31, 1996 have been audited by Ernst & Young LLP, independent auditors, as set forth in their report thereon included therein and incorporated herein by reference. Such financial statements are, and audited financial statements to be included in subsequently filed documents will be, incorporated herein in reliance upon the reports of Ernst & Young LLP pertaining to such financial statements (to the extent covered by consents filed with the Securities and Exchange Commission) given upon the authority of such firm as experts in accounting and auditing. Item 6. Indemnification of Directors and Officers The Company's Certificate of Incorporation provides that no director of the Company will be personally liable to the Company or any of its stockholders for monetary damages arising from the director's breach of fiduciary duty as a director. However, this does not apply with respect to any action in which the director would be liable under Section 174 of the General Corporation Law of the State of Delaware ("Delaware Code") nor does it apply with respect to any liability in which the director (i) breached his duty of loyalty to the Company or its stockholders; (ii) did not act in good faith or, in failing to act, did not act in good faith; (iii) acted in a manner involving intentional misconduct 3 or a knowing violation of law or, in failing to act, shall have acted in a manner involving intentional misconduct or a knowing violation of law; or (iv) derived an improper personal benefit. The Certificate of Incorporation of the Company provides that the Company shall indemnify its directors and officers and former directors and officers to the fullest extent permitted by the Delaware Code. Pursuant to the provisions of Section 145 of the Delaware Code, the Company has the power to 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 (other than an action by or in the right of the Company) by reason of the fact that he is or was a director, officer, employee, or agent of the Company, against any and all expenses, judgments, fines, and amounts paid in settlement actually and reasonably incurred in connection with such action, suit, or proceeding. The power to indemnify applies only if such person acted in good faith and in a manner he reasonably believed to be in the best interest, or not opposed to the best interest, of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The power to indemnify applies to actions brought by or in the right of the Company as well, but only to the extent of defense and settlement expenses and not to any satisfaction of a judgment or settlement of the claim itself, and with the further limitation that in such actions no indemnification shall be made in the event of any adjudication of negligence or misconduct unless the court, in its discretion, believes that in light of all the circumstances indemnification should apply. The statute further specifically provides that the indemnification authorized thereby shall not be deemed exclusive of any other rights to which any such officer or director may be entitled under any bylaws, agreements, vote of stockholders or disinterested directors, or otherwise. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, or persons controlling 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 Securities Act of 1933, as amended, and is therefore unenforceable. Item 8. Exhibits Exhibit No. Exhibit 4.1 - Specimen Common Stock Certificate, filed as Exhibit 4.1 to the Company's Registration Statement on Form S-1 (No. 333-8307) dated as of October 1996 (the "1996 Form S-1") and incorporated by reference herein. 4.2 - Certificate of Incorporation of the Company, filed as Exhibit 3.1 to the Company's Registration Statement on Form S-1 (No. 33-85698) dated as of December 1994 (the "1994 Form S-1") and incorporated by reference herein. 4.3 - Bylaws of the Company, filed as Exhibit 3.2 to the 1994 Form S-1 and incorporated by reference herein. 4.4 - Amendment No. 1 to the Certificate of Incorporation of the Company, filed as Exhibit 3.3 to the 1994 Form S-1 and incorporated by reference herein. 4.5 - Amendment No. 1 to the Bylaws of the Company, filed as Exhibit 3.4 to the 1994 Form S-1 and incorporated by reference herein. 4.6 - Kitty Hawk, Inc. Amended and Restated Omnibus Securities Plan, filed as Exhibit 10.28 to the 1996 Form S-1 and incorporated by referenced herein. *5.1 - Opinion of Haynes and Boone, LLP with respect to validity of issuance of securities. II-2 4 *23.1 - Consent of Ernst & Young LLP. *23.2 - Consent of Haynes and Boone, LLP (included in Exhibit 5.1). - ----------------- * Filed herewith. 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; (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 Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement. (2) that, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and (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 the 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 this registration statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that 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 II-3 5 asserted by such director, officer, or controlling person 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. II-4 6 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on the 19th day of March, 1997. KITTY HAWK, INC. By: /s/ Richard R. Wadsworth ------------------------------------------------ Richard R. Wadsworth Senior Vice President - Finance, Chief Financial Officer, Secretary, and Director Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on the 19th day of March, 1997. Name Capacities ---- ---------- /s/ M. TOM CHRISTOPHER - ----------------------------------- M. Tom Christopher Chairman of the Board of Directors, and Chief Executive Officer /s/ TILMON J. REEVES - ----------------------------------- Tilmon J. Reeves President, Chief Operating Officer, and Director /s/ RICHARD R. WADSWORTH - ----------------------------------- Richard R. Wadsworth Senior Vice President - Finance, Chief Financial Officer (Principal Financial and Accounting Officer), and Director /s/ TED J. COONFIELD - ----------------------------------- Ted J. Coonfield Director /s/ JAMES R. CRAIG - ----------------------------------- James R. Craig Director /s/ ROBERT F. GRAMMER - ----------------------------------- Robert F. Grammer Director /s/ LEWIS S. WHITE - ----------------------------------- Lewis S. White Director II-5 7 EXHIBIT INDEX Exhibit No. Description Sequential Page No. 4.1 - Specimen Common Stock Certificate, filed as Exhibit 4.1 to the Company's Registration Statement on Form S-1 (No. 333-8307) dated as of October 1996 (the "1996 Form S-1") and incorporated by reference herein. 4.2 - Certificate of Incorporation of the Company, filed as Exhibit 3.1 to the Company's Registration Statement on Form S-1 (No. 33-85698) dated as of December 1994 (the "1994 Form S-1") and incorporated by reference herein. 4.3 - Bylaws of the Company, filed as Exhibit 3.2 to the 1994 Form S-1 and incorporated by reference herein. 4.4 - Amendment No. 1 to the Certificate of Incorporation of the Company, filed as Exhibit 3.3 to the 1994 Form S-1 and incorporated by reference herein. 4.5 - Amendment No. 1 to the Bylaws of the Company, filed as Exhibit 3.4 to the 1994 Form S-1 and incorporated by reference herein. 4.6 - Kitty Hawk, Inc. Amended and Restated Omnibus Securities Plan, filed as Exhibit 10.28 to the 1996 Form S-1 and incorporated by referenced herein. *5.1 - Opinion of Haynes and Boone, LLP with respect to validity of issuance of securities. *23.1 - Consent of Ernst & Young LLP. *23.2 - Consent of Haynes and Boone, LLP (included in Exhibit 5.1). - ----------------- * Filed herewith. II-6 EX-5.1 2 OPINION OF HAYNES & BOONE, LLP 1 EXHIBIT 5.1 March 19, 1997 Kitty Hawk, Inc. 1515 West 20th Street P.O. Box 612787 Dallas/Forth Worth International Airport, Texas 75261 Gentlemen: We have acted as special counsel to Kitty Hawk, Inc., a Delaware corporation (the "Company"), in connection with the preparation of the Registration Statement on Form S-8 (the "Registration Statement") filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, relating to the registration of 300,000 shares of Common Stock, par value $.01 per share (the "Common Stock"), of the Company that may be issued pursuant to the Kitty Hawk, Inc. Amended and Restated Omnibus Securities Plan (the "Plan"). The laws covered by the opinions expressed herein are limited to the federal laws of the United States and the Delaware General Corporation Law. In connection therewith, we have examined (i) the Certificate of Incorporation and the Bylaws of the Company, each as amended; (ii) minutes and records of the corporate proceedings of the Company with respect to the adoption of the Plan and related matters; (iii) the Plan; and (iv) such other documents as we have deemed necessary for the expression of the opinions contained herein. In making the foregoing examination, 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 questions of fact material to this opinion, where such facts have not been independently established, and as to the content and form of the Certificate of Incorporation (as amended), Bylaws (as amended), minutes, records, resolutions and other documents or writings of the Company, we have relied, to the extent we deem reasonably appropriate, upon representations or certificates of officers or directors of the Company and upon documents, records and instruments furnished to us by the Company, without independent check or verification of their accuracy. In addition, we have assumed that all formalities required by the Company's Certificate of Incorporation and Bylaws and the Delaware General 2 Kitty Hawk, Inc. March 19, 1997 Page 2 Corporation Law will be complied with when the shares of Common Stock are issued pursuant to the terms of the Plan. Based upon the foregoing, and having due regard for such legal considerations as we deem relevant, assuming that the cash consideration received by the Company in exchange for the issuance of Common Stock under the Plan equals or exceeds the par value of such Common Stock, we are of the opinion that the 300,000 shares of Common Stock covered by the Registration Statement which may be issued from time to time in accordance with the terms of the Plan have been duly authorized for issuance by the Company, and, when so issued in accordance with the terms and conditions of the Plan, will be validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion with the Securities and Exchange Commission as an exhibit to the Registration Statement and to the reference to our firm under the caption "Legal Matters" in the Registration Statement. Very truly yours, Haynes and Boone, LLP EX-23.1 3 CONSENT OF INDEPENDENT AUDITORS 1 EXHIBIT 23.1 Consent of Independent Auditors We consent to the reference to our firm under the caption "Experts" in the Registration Statement (Form S-8) pertaining to the Kitty Hawk, Inc. Amended and Restated Omnibus Securities Plan and to the incorporation by reference therein of our report dated October 31, 1996, with respect to the consolidated financial statements of Kitty Hawk, Inc. included in its Annual Report (Form 10-K) for the year ended August 31, 1996, filed with the Securities and Exchange Commission. Ernst & Young LLP Dallas, Texas March 18, 1997 -----END PRIVACY-ENHANCED MESSAGE-----