As filed with the Securities and Exchange Commission on July 16, 1996
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------------------
AirNet Systems, Inc.
(Exact name of registrant as specified in its charter)
Ohio 31-1458309
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3939 International Gateway 43219
(Address of Principal Executive Offices) (Zip Code)
AirNet Systems, Inc.
1996 Incentive Stock Plan
(Full title of the plan)
Copy to:
Eric P. Roy Elizabeth Turrell Farrar, Esq.
AirNet Systems, Inc. Vorys, Sater, Seymour and Pease
3939 International Gateway 52 East Gay Street
Columbus, Ohio 43219 Columbus, Ohio 43216-1008
(Name and address of agent for service)
(614) 237-9777
(Telephone number, including area code, of agent for service)
---------------------------------
<TABLE>
Calculation of Registration Fee
- --------------------------------------------------------------------------------
Proposed
Title of Proposed maximum maximum Amount of
securities to Amount to be offering price aggregate registration
be registered registered per unit (1) offering price fee
(1)
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares, 1,150,000 $14.00 for 337,400 common $16,597,807.50 $5,724
$0.01 Par Value shares; $14.50 for
153,150 common shares;
$15.95 for 6,850 common
shares; $14.625 for
652,600 common shares
</TABLE>
- --------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the aggregate offering
price and the registration fee pursuant to Rules 457(c) and 457(h)
promulgated under the Securities Act of 1933, as amended, and computed
on the basis of: (a) $14.00 per share for 337,400 of the Common Shares;
$14.50 per share for 153,150 of the Common Shares and $15.95 per share
for 6,850 of the Common Shares to be registered, which are the prices at
which options to purchase such Common Shares may be exercised; and (b)
$14.625 per share for 652,600 of the Common Shares to be registered,
which is the average of the high and low sales prices of the Common
Shares as reported on The Nasdaq Stock Market on July 15, 1996.
Page 1 of 34 Pages.
Index to Exhibits at Page II-16 (Page 17 as sequentially numbered).
<PAGE>
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Prospectus filed by AirNet Systems, Inc. (the "Registrant") on
June 3, 1996, with the Securities and Exchange Commission (the "Commission")
pursuant to Rule 424(b) under the Securities Act of 1933, as amended, which
contains audited financial statements for the Registrant's fiscal year ended
September 30, 1995, is hereby incorporated by reference.
The description of the Registrant's Common Shares contained in the
Registrant's Registration Statement on Form 8-A (File No. 0-28428) filed with
the Commission on May 3, 1996, which incorporates by reference the description
of the Registrant's Common Shares contained in the Registrant's Registration
Statement on Form S-1 (Registration No. 333-3092) filed with the Commission on
April 2, 1996, or contained in any subsequent amendment or report filed for
the purpose of updating such description, is hereby incorporated by reference.
Any definitive Proxy Statement or Information Statement filed
pursuant to Section 14 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and all documents which may be filed with the Commission
pursuant to Sections 13, 14 or 15(d) of the Exchange Act subsequent to the
date hereof and prior to the completion of the offering contemplated hereby,
shall also be deemed to be incorporated herein by reference and to be made a
part hereof from the date of filing of such documents; provided, however, that
no report of the Compensation Committee of the Board of Directors of the
Registrant on executive compensation and no performance graph included in any
Proxy Statement or Information Statement filed pursuant to Section 14 of the
Exchange Act shall be deemed to be incorporated herein by reference.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the issuance of the Common Shares of the
Registrant being registered on this Registration Statement on Form S-8 will be
passed upon for the Registrant by Vorys, Sater, Seymour and Pease, 52 East Gay
Street, P.O. Box 1008, Columbus, Ohio 43216-1008. Russell M. Gertmenian, a
director of the Registrant, is a partner of such firm. As of July 5, 1996,
members of Vorys, Sater, Seymour and Pease and attorneys employed thereby,
together with members of their immediate families, beneficially owned an
aggregate of 4,250 Common Shares of the Registrant.
Item 6. Indemnification of Directors and Officers.
Division (E) of Section 1701.13 of the Ohio Revised Code governs
indemnification by an Ohio corporation and provides as follows:
(E)(1) A corporation may indemnify or agree 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,
whether civil, criminal, administrative, or investigative, other than an
action by or in the right of the corporation, by reason of the fact that
he 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,
trustee, officer, employee, member, manager, or agent of another
corporation, domestic or foreign, nonprofit or for profit, a limited
liability company, or a partnership, joint venture, trust, or other
enterprise, against expenses, including attorney's fees, judgments,
fines, and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit, or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, if he had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit,
or proceeding by judgment, order, settlement, or conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create
a presumption that the person did not act in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding,
he had reasonable cause to believe that his conduct was unlawful.
(2) A corporation may indemnify or agree 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 or suit by or in the right of
the corporation to procure a judgment in its favor, by reason of the
fact that he 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, trustee, officer, employee, member, manager, or agent of
another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or
other enterprise, against expenses, including attorney's fees, actually
and reasonably incurred by him in connection with the defense or
settlement of such action or suit, if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification shall be
made in respect of any of the following:
(a) Any claim, issue, or matter as to which such person is
adjudged to be liable for negligence or misconduct in the
performance of his duty to the corporation unless, and only to the
extent that the court of common pleas or the court in which such
action or suit was brought determines, upon application, that,
despite the adjudication of liability, but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses as the court of common
pleas or such other court shall deem proper;
(b) Any action or suit in which the only liability asserted
against a director is pursuant to section 1701.95 of the Revised
Code.
(3) To the extent that a director, trustee, officer, employee,
member, manager, or agent has been successful on the merits or otherwise
in defense of any action, suit, or proceeding referred to in division
(E)(1) or (2) of this section, or in defense of any claim, issue, or
matter therein, he shall be indemnified against expenses, including
attorney's fees, actually and reasonably incurred by him in connection
with the action, suit, or proceeding.
(4) Any indemnification under division (E)(1) or (2) of this
section, unless ordered by a court, shall be made by the corporation
only as authorized in the specific case, upon a determination that
indemnification of the director, trustee, officer, employee, member,
manager, or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in division (E)(1) or (2) of
this section.
Such determination shall be made as follows:
(a) By a majority vote of a quorum consisting of directors
of the indemnifying corporation who were not and are not parties
to or threatened with the action, suit, or proceeding referred to
in division (E)(1) or (2) of this section;
(b) If the quorum described in division (E)(4)(a) of this
section is not obtainable or if a majority vote of a quorum of
disinterested directors so directs, in a written opinion by
independent legal counsel other than an attorney, or a firm having
associated with it an attorney, who has been retained by or who
has performed services for the corporation or any person to be
indemnified within the past five years;
(c) By the shareholders;
(d) By the court of common pleas or the court in which the
action, suit, or proceeding referred to in division (E)(1) or (2)
of this section was brought.
Any determination made by the disinterested directors under
division (E)(4)(a) or by independent legal counsel under division
(E)(4)(b) of this section shall be promptly communicated to the person
who threatened or brought the action or suit by or in the right of the
corporation under division (E)(2) of this section, and within ten days
after receipt of such notification, such person shall have the right to
petition the court of common pleas or the court in which such action or
suit was brought to review the reasonableness of such determination.
(5)(a) Unless at the time of a director's act or omission that is
the subject of an action, suit, or proceeding referred to in division
(E)(1) or (2) of this section, the articles or the regulations of a
corporation state, by specific reference to this division, that the
provisions of this division do not apply to the corporation and unless
the only liability asserted against a director in an action, suit, or
proceeding referred to in division (E)(1) or (2) of this section is
pursuant to section 1701.95 of the Revised Code, expenses, including
attorney's fees, incurred by a director in defending the action, suit or
proceeding shall be paid by the corporation as they are incurred, in
advance of the final disposition of the action, suit, or proceeding upon
receipt of an undertaking by or on behalf of the director in which he
agrees to do both of the following:
(i) Repay such amount if it is proved by clear and
convincing evidence in a court of competent jurisdiction that his
action or failure to act involved an act or omission undertaken
with deliberate intent to cause injury to the corporation or
undertaken with reckless disregard for the best interests of the
corporation;
(ii) Reasonably cooperate with the corporation
concerning the action, suit, or proceeding.
(b) Expenses, including attorney's fees, incurred by a director,
trustee, officer, employee, member, manager, or agent in defending any
action, suit, or proceeding referred to in division (E)(1) or (2) of
this section, may be paid by the corporation as they are incurred, in
advance of the final disposition of the action, suit, or proceeding, as
authorized by the directors in the specific case, upon receipt of an
undertaking by or on behalf of the director, trustee, officer, employee,
member, manager, or agent to repay such amount, if it ultimately is
determined that he is not entitled to be indemnified by the corporation.
(6) The indemnification authorized by this section shall not be
exclusive of, and shall be in addition to, any other rights granted to
those seeking indemnification under the articles, the regulations, any
agreement, a vote of shareholders or disinterested directors, or
otherwise, both as to action in their official capacities and as to
action in another capacity while holding their offices or positions, and
shall continue as to a person who has ceased to be a director, trustee,
officer, employee, member, manager, or agent and shall inure to the
benefit of the heirs, executors, and administrators of such a person.
(7) A corporation may purchase and maintain insurance or furnish
similar protection, including, but not limited to, trust funds, letters
of credit, or self-insurance, on behalf of or for any person who 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, trustee,
officer, employee, member, manager, or agent of another corporation,
domestic or foreign, nonprofit or for profit, a limited liability
company, or a partnership, joint venture, trust, or other enterprise,
against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability
under this section. Insurance may be purchased from or maintained with a
person in which the corporation has a financial interest.
(8) The authority of a corporation to indemnify persons pursuant
to division (E)(1) or (2) of this section does not limit the payment of
expenses as they are incurred, indemnification, insurance, or other
protection that may be provided pursuant to divisions (E)(5),(6), and
(7) of this section. Divisions (E)(1) and (2) of this section do not
create any obligation to repay or return payments made by the
corporation pursuant to division (E)(5),(6) or (7).
(9) As used in division (E) of this section, "corporation"
includes all constituent entities in a consolidation or merger and the
new or surviving corporation, so that any person who is or was a
director, officer, employee, trustee, member, manager, or agent of such
a constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee, member,
manager, or agent of another corporation, domestic or foreign, nonprofit
or for profit, a limited liability company, a partnership, joint
venture, trust, or other enterprise, shall stand in the same position
under this section with respect to the new or surviving corporation as
he would if he had served the new or surviving corporation in the same
capacity.
Article FIVE of the Code of Regulations of the Registrant governs
indemnification by the Registrant and provides as follows:
Section 5.01. Mandatory Indemnification. The corporation shall
indemnify any officer or director of the corporation 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 (including, without limitation, any
action threatened or instituted by or in the right of the corporation),
by reason of the fact that he is or was a director, officer, manager or
agent of the corporation, or is or was serving at the request of the
corporation as a director, trustee, officer, employee, member, manager
or agent of another corporation (domestic or foreign, nonprofit or for
profit), limited liability company, partnership, joint venture, trust or
other enterprise, against expenses (including, without limitation,
attorneys' fees, filing fees, court reporters' fees and transcript
costs), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal action or proceeding, he
had no reasonable cause to believe his conduct was unlawful. A person
claiming indemnification under this Section 5.01 shall be presumed, in
respect of any act or omission giving rise to such claim for
indemnification, to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal matter, to have had no
reasonable cause to believe his conduct was unlawful, and the
termination of any action, suit or proceeding by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, rebut such presumption.
Section 5.02. Court-Approved Indemnification. Anything
contained in the Regulations or elsewhere to the contrary
notwithstanding:
(A) the corporation shall not indemnify any officer or
director of the corporation who was a party to any completed
action or suit instituted by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he 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, trustee, officer, employee, member, manager or agent of
another corporation (domestic or foreign, nonprofit or for
profit), limited liability company, partnership, joint venture,
trust or other enterprise, in respect of any claim, issue or
matter asserted in such action or suit as to which he shall have
been adjudged to be liable for acting with reckless disregard for
the best interests of the corporation or misconduct (other than
negligence) in the performance of his duty to the corporation
unless and only to the extent that the Court of Common Pleas of
Franklin County, Ohio or the court in which such action or suit
was brought shall determine upon application that, despite such
adjudication of liability, and in view of all the circumstances of
the case, he is fairly and reasonably entitled to such indemnity
as such Court of Common Pleas or such other court shall deem
proper; and
(B) the corporation shall promptly make any such unpaid
indemnification as is determined by a court to be proper as
contemplated by this Section 5.02.
Section 5.03. Indemnification for Expenses. Anything contained in
the Regulations or elsewhere to the contrary notwithstanding, to the
extent that an officer or director of the corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Section 5.01, or in defense of any claim,
issue or matter therein, he shall be promptly indemnified by the
corporation against expenses (including, without limitation, attorneys'
fees, filing fees, court reporters' fees and transcript costs) actually
and reasonably incurred by him in connection therewith.
Section 5.04. Determination Required. Any indemnification required
under Section 5.01 and not precluded under Section 5.02 shall be made by
the corporation only upon a determination that such indemnification of
the officer or director is proper in the circumstances because he has
met the applicable standard of conduct set forth in Section 5.01. Such
determination may be made only (A) by a majority vote of a quorum
consisting of directors of the corporation who were not and are not
parties to, or threatened with, any such action, suit or proceeding, or
(B) if such a quorum is not obtainable or if a majority of a quorum of
disinterested directors so directs, in a written opinion by independent
legal counsel other than an attorney, or a firm having associated with
it an attorney, who has been retained by or who has performed services
for the corporation, or any person to be indemnified, within the past
five years, or (C) by the shareholders, or (D) by the Court of Common
Pleas of Franklin County, Ohio or (if the corporation is a party
thereto) the court in which such action, suit or proceeding was brought,
if any; any such determination may be made by a court under division (D)
of this Section 5.04 at any time [including, without limitation, any
time before, during or after the time when any such determination may be
requested of, be under consideration by or have been denied or
disregarded by the disinterested directors under division (A) or by
independent legal counsel under division (B) or by the shareholders
under division (C) of this Section 5.04]; and no failure for any reason
to make any such determination, and no decision for any reason to deny
any such determination, by the disinterested directors under division
(A) or by independent legal counsel under division (B) or by
shareholders under division (C) of this Section 5.04 shall be evidence
in rebuttal of the presumption recited in Section 5.01. Any
determination made by the disinterested directors under division (A) or
by independent legal counsel under division (B) of this Section 5.04 to
make indemnification in respect of any claim, issue or matter asserted
in an action or suit threatened or brought by or in the right of the
corporation shall be promptly communicated to the person who threatened
or brought such action or suit, and within ten (10) days after receipt
of such notification such person shall have the right to petition the
Court of Common Pleas of Franklin County, Ohio or the court in which
such action or suit was brought, if any, to review the reasonableness of
such determination.
Section 5.05. Advances for Expenses. Expenses (including, without
limitation, attorneys' fees, filing fees, court reporters' fees and
transcript costs) incurred in defending any action, suit or proceeding
referred to in Section 5.01 shall be paid by the corporation in advance
of the final disposition of such action, suit or proceeding to or on
behalf of the officer or director promptly as such expenses are incurred
by him, but only if such officer or director shall first agree, in
writing, to repay all amounts so paid in respect of any claim, issue or
other matter asserted in such action, suit or proceeding in defense of
which he shall not have been successful on the merits or otherwise:
(A) if it shall ultimately be determined as provided in
Section 5.04 that he is not entitled to be indemnified by the
corporation as provided under Section 5.01; or
(B) if, in respect of any claim, issue or other matter
asserted by or in the right of the corporation in such action or
suit, he shall have been adjudged to be liable for acting with
reckless disregard for the best interests of the corporation or
misconduct (other than negligence) in the performance of his duty
to the corporation, unless and only to the extent that the Court
of Common Pleas of Franklin County, Ohio or the court in which
such action or suit was brought shall determine upon application
that, despite such adjudication of liability, and in view of all
the circumstances, he is fairly and reasonably entitled to all or
part of such indemnification.
Section 5.06. Article FIVE Not Exclusive. The indemnification
provided by this Article FIVE shall not be exclusive of, and shall be in
addition to, any other rights to which any person seeking
indemnification may be entitled under the Articles, the Regulations, any
agreement, a vote of shareholders or disinterested directors, or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, and shall continue as to
a person who has ceased to be an officer or director of the corporation
and shall inure to the benefit of the heirs, executors, and
administrators of such a person.
Section 5.07. Insurance. The corporation may purchase and maintain
insurance or furnish similar protection, including but not limited to
trust funds, letters of credit, or self-insurance, on behalf of any
person who 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, trustee, officer, employee, or agent of another corporation
(domestic or foreign, nonprofit or for profit), partnership, joint
venture, trust or other enterprise, against any liability asserted
against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the corporation would have the
obligation or the power to indemnify him against such liability under
the provisions of this Article FIVE. Insurance may be purchased from or
maintained with a person in which the corporation has a financial
interest.
Section 5.08. Certain Definitions. For purposes of this
Article FIVE, and as examples and not by way of limitation:
(A) A person claiming indemnification under this Article
FIVE shall be deemed to have been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to
in Section 5.01, or in defense of any claim, issue or other matter
therein, if such action, suit or proceeding shall be terminated as
to such person, with or without prejudice, without the entry of a
judgment or order against him, without a conviction of him,
without the imposition of a fine upon him and without his payment
or agreement to pay any amount in settlement thereof (whether or
not any such termination is based upon a judicial or other
determination of the lack of merit of the claims made against him
or otherwise results in a vindication of him); and
(B) References to an "other enterprise" shall include
employee benefit plans; references to a "fine" shall include any
excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the
corporation" shall include any service as a director, officer,
employee or agent of the corporation which imposes duties on, or
involves services by, such director, officer, employee or agent
with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the best interests of the
participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner "not opposed to the best
interests of the corporation" within the meaning of that term as
used in this Article FIVE.
Section 5.09. Venue. Any action, suit or proceeding to determine a
claim for indemnification under this Article FIVE may be maintained by
the person claiming such indemnification, or by the corporation, in the
Court of Common Pleas of Franklin County, Ohio. The corporation and (by
claiming such indemnification) each such person consent to the exercise
of jurisdiction over its or his person by the Court of Common Pleas of
Franklin County, Ohio in any such action, suit or proceeding.
Section 12(p) of the AirNet Systems, Inc. 1996 Incentive Stock Plan
(the "Plan") provides for the indemnification of members of the Board of
Directors of the Registrant and of the Compensation Committee of such
Board which administers the Plan. Section 12(p) provides as follows:
(p) INDEMNIFICATION. Each person who is or shall have been a
member of the Committee or of the Board shall be indemnified and
held harmless by the Company against and from any loss, cost,
liability or expense that may be imposed upon or reasonably incurred
by him in connection with or resulting from any claim, action, suit
or proceeding to which he may be made a party or in which he may be
involved by reason of any action taken or failure to act under the
Plan and against and from any and all amounts paid by him in
settlement thereof, with the Company's approval, or paid by him in
satisfaction of any judgment in any such action, suit or proceeding
against him, provided he shall give the Company an opportunity, at
its own expense, to handle and defend the same before he undertakes
to handle and defend it on his own behalf. The foregoing right of
indemnification shall not be exclusive and shall be independent of
any other rights of indemnification to which such persons may be
entitled under the Company's Certificate of Incorporation or
By-laws, by contract, as a matter of law, or otherwise.
The Registrant has purchased insurance coverage under a policy
which insures directors and officers against certain liabilities which might
be incurred by them in such capacities.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
See the Index to Exhibits attached hereto at page II-16.
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; and
(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;
<PAGE>
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.
(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 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 provisions described in
Item 6 of this Part II, 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 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 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 Act and will be
governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Columbus, State of Ohio, on the 15th
day of July, 1996.
AIRNET SYSTEMS, INC.
By: /s/ Gerald G. Mercer
Gerald G. Mercer,
Chairman of the Board, President
and Chief Executive Officer
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 15th day of July, 1996.
Signature Title
*Gerald G. Mercer Chairman of the Board, President,
Gerald G. Mercer Chief Executive Officer and Director
*Eric P. Roy Executive Vice President, Chief
Eric P. Roy Operating Officer, Chief Financial
Officer, Treasurer and Director
*Tony C. Canonie, Jr. Director
Tony C. Canonie, Jr.
*Russell M. Gertmenian Director
Russell M. Gertmenian
*J. F. Keeler, Jr. Director
J. F. Keeler, Jr.
*By Power of Attorney
/s/ Gerald G. Mercer
Gerald G. Mercer
(Attorney-in-Fact)
- II-15 -
<PAGE>
INDEX TO EXHIBITS
Exhibit
No. Description Page No.
------- -------------------------- ------------------------------
4(a) Amended Articles of Incorporated herein by
AirNet Systems, Inc. reference to Registrant's
Registration Statement on
Form 8-A filed on May 3, 1996
(File No. 0-28428)
[Exhibit 2.1]
4(b) Certificate of Amendment to the Pages 19 through 21.
Amended Articles of AirNet
Systems, Inc. as filed with Ohio
Secretary of State on May 28, 1996
4(c) Amended Articles of Pages 22 through 24.
AirNet Systems, Inc. (as amended
through May 28, 1996)
4(d) Code of Regulations of AirNet Incorporated herein by
Systems, Inc. reference to Registrant's
Registration Statement on
Form 8-A filed on May 3, 1996
(File No. 0-28428)
[Exhibit 2.2]
4(e) AirNet Systems, Inc. 1996 Incorporated herein by
Incentive Stock Plan reference to Amendment No. 1
to Registrant's Registration
Statement on Form S-1 filed
on May 7, 1996 (Registration
No. 333-3092) [Exhibit 10.10]
5 Opinion of Vorys, Sater, Seymour Pages 25 and 26.
and Pease, counsel to Registrant
23(a) Consent of Ernst & Young LLP Pages 27 and 28.
- II-16 -
<PAGE>
23(b) Consent of Vorys, Sater, Seymour Filed as part of Exhibit 5
and Pease, counsel to Registrant hereof.
24 Powers of Attorney Pages 29 through 34.
- II-17 -
EXHIBIT 4(b)
Certificate of Amendment to the
Amended Articles of AirNet Systems, Inc.
as filed with Ohio Secretary of State
on May 28, 1996
<PAGE>
CERTIFICATE OF AMENDMENT
TO THE AMENDED ARTICLES
OF
AIRNET SYSTEMS, INC.
The undersigned hereby certify that they are the duly elected,
qualified and acting Vice President, Corporate Development, and Secretary,
respectively, of AirNet Systems, Inc., an Ohio corporation (the "Company");
that the resolution, attached hereto as Annex 1 and incorporated herein by
this reference, approving an amendment to the Company's Amended Articles
eliminating the right of the shareholders of the Company to vote cumulatively
in the election of directors, was duly adopted, after having received the
written notice required by Section 1701.69(B)(10)(b) of the Ohio Revised, by
all of the shareholders of the Company in an action in writing without a
meeting pursuant to Section 1701.54 of the Ohio Revised Code, effective on May
28, 1996.
IN WITNESS WHEREOF, the undersigned Vice President, Corporate
Development, and Secretary of AirNet Systems, Inc., acting for and on behalf
of said corporation, have hereunto set their hands this 28th day of May, 1996.
/s/ Donald D. Strench
-----------------------------------------
Donald D. Strench, Vice President,
Corporate Development
/s/ William R. Sumser
-----------------------------------------
William R. Sumser, Secretary
-20-
<PAGE>
Annex 1 to
Certificate of Amendment
of
AirNet Systems, Inc.
RESOLVED, that the Amended Articles of the Company be amended in
order to eliminate the right of the shareholders of the Company to
vote cumulatively in the election of directors by adding Article
NINTH in the following form:
NINTH: Shareholders of the corporation shall not have the
right to vote cumulatively in the election of directors
after the filing with the Ohio Secretary of State of a
Certificate of Amendment to the Company's Amended Articles
reflecting the adoption of this Article NINTH.
- 21 -
Exhibit 4(c)
Amended Articles
of AirNet Systems, Inc.
(as amended through May 28, 1996)
<PAGE>
- ------------------------------------------------------------------------------
AMENDED ARTICLES
- ------------------------------------------------------------------------------
OF
AIRNET SYSTEMS, INC.
(as amended through May 28, 1996)
FIRST: The name of the corporation shall be AirNet Systems, Inc.
SECOND: The place in Ohio where the principal office of the corporation
is to be located is in the City of Columbus, County of Franklin.
THIRD: The purpose for which the corporation is formed is to engage in
any lawful act or activity for which corporations may be formed under Sections
1701.01 to 1701.98 of the Ohio Revised Code.
FOURTH: The authorized number of shares of the corporation shall be Fifty
Million (50,000,000), of which Forty Million (40,000,000) shares shall be
Common Shares, par value $0.01 per share, and Ten Million (10,000,000) shares
shall be Preferred Shares, par value $0.01 per share.
The directors of the corporation are authorized to adopt amendments to
the Amended Articles in respect of any unissued or treasury Preferred Shares
and thereby to fix or change, to the full extent now or hereafter permitted by
Ohio law: the division of such shares into series and the designation and
authorized number of shares of each series; the dividend rate; the dates of
payment of dividends and the dates from which they are cumulative; liquidation
price; redemption rights and price; sinking fund requirements; conversion
rights; restrictions on the issuance of shares of any class or series; and
such other rights, preferences and limitations as shall not be inconsistent
with this ARTICLE FOURTH.
FIFTH: The directors of the corporation shall have the power to cause the
corporation from time to time and at any time to purchase, hold, sell,
transfer or otherwise deal with (A) shares of any class or series issued by
it, (B) any security or other obligation of the corporation which may confer
upon the holder thereof the right to convert the same into shares of any class
or series authorized by the articles of the corporation, and (C) any security
or other obligation which may confer upon the holder thereof the right to
purchase shares of any class or series authorized by the articles of the
corporation. The corporation shall have the right to repurchase, if and when
any shareholder desires to sell, or on the happening of any event is required
to sell, shares of any class or series issued by the corporation. The
authority granted in this ARTICLE FIFTH of these Amended Articles shall not
limit the plenary authority of the directors to purchase, hold, sell, transfer
or otherwise deal with shares of any class or series, securities, or other
obligations issued by the corporation or authorized by its articles.
- 23 -
<PAGE>
SIXTH: No shareholder of the corporation shall have, as a matter of
right, the pre-emptive right to purchase or subscribe for shares of any class,
now or hereafter authorized, or to purchase or subscribe for securities or
other obligations convertible into or exchangeable for such shares or which by
warrants or otherwise entitle the holders thereof to subscribe for or purchase
any such share.
SEVENTH: Notwithstanding any provision of the Ohio Revised Code requiring
for any purpose the vote, consent, waiver or release of the holders of shares
of the corporation entitling them to exercise two-thirds or any other
proportion of the voting power of the corporation or of any class or classes
of shares thereof, such action, unless expressly provided otherwise by statute
or by the regulations of the corporation, may be taken by the vote, consent,
waiver or release of the holders of shares entitling them to exercise not less
than a majority of the voting power of the corporation or of such class or
classes.
EIGHTH: These Amended Articles take the place of and supersede the
original Articles of Incorporation of AirNet Systems, Inc.
NINTH: Shareholders of the corporation shall not have the right to vote
cumulatively in the election of directors after the filing with the Ohio
Secretary of State of a Certificate of Amendment to the Company's Amended
Articles reflecting the adoption of this Article NINTH.
-24-
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
EXHIBIT 5
(614) 464-6400
July 15, 1996
Board of Directors
AirNet Systems, Inc.
3939 International Gateway
Columbus, Ohio 43219
Gentlemen:
We are familiar with the proceedings taken and proposed to be
taken by AirNet Systems, Inc., an Ohio corporation (the "Company"), in
connection with the institution of the AirNet Systems, Inc. 1996 Incentive
Stock Plan (the "1996 Plan"), the granting of options to purchase common
shares, par value $0.01 per share (the "Common Shares"), of the Company
pursuant to the 1996 Plan, the issuance and sale of Common Shares of the
Company upon exercise of options granted and to be granted under the 1996
Plan, the granting of "Restricted Stock" and "Performance Awards" (as those
terms are defined in the 1996 Plan) under the 1996 Plan, and the offering of
Common Shares under the "Stock Purchase Plan" portion of the 1996 Plan, all as
described in the Registration Statement on Form S-8 (the "Registration
Statement") to be filed with the Securities and Exchange Commission on July
16, 1996. The purpose of the Registration Statement is to register 1,150,000
Common Shares reserved for issuance under the 1996 Plan pursuant to the
provisions of the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
In connection with this opinion, we have examined an original or
copy of, and have relied upon the accuracy of, without independent
verification or investigation: (a) the Registration Statement; (b) the 1996
Plan; (c) the Company's Amended Articles, as amended; (d) the Company's Code
of Regulations; and (e) certain proceedings of the directors and of the
shareholders of the Company. We have also relied upon such representations of
the Company and officers of the Company and such authorities of law as we have
deemed relevant as a basis for this opinion.
- 25 -
<PAGE>
Board of Directors
Airnet Systems, Inc.
July 15, 1996
Page 2
We have relied solely upon the examinations and inquiries recited
herein, and we have not undertaken any independent investigation to determine
the existence or absence of any facts, and no inference as to our knowledge
concerning such facts should be drawn.
Based upon and subject to the foregoing and the further
qualifications and limitations set forth below, as of the date hereof, we are
of the opinion that after the 1,150,000 Common Shares of the Company to be
registered under the Registration Statement have been issued and delivered by
the Company upon the exercise of options under the 1996 Plan against payment
of the purchase price therefor, upon settlement of Performance Awards granted
under the 1996 Plan, upon grant of Restricted Stock under the 1996 Plan and
upon payment of the purchase price of Common Shares offered under the Stock
Purchase Plan, in each case in accordance with the terms of the 1996 Plan,
said Common Shares will be validly issued, fully paid and non-assessable,
assuming compliance with applicable federal and state securities laws.
Our opinion is limited to the General Corporation Law of Ohio in
effect as of the date hereof. This opinion is furnished by us solely for the
benefit of the Company in connection with the offering of the Common Shares
pursuant to the 1996 Plan and the filing of the Registration Statement and any
amendments thereto. This opinion may not be relied upon by any other person or
assigned, quoted or otherwise used without our specific written consent.
Notwithstanding the foregoing, we consent to the filing of this
opinion as an exhibit to the Registration Statement and to the reference to us
therein.
Very truly yours,
VORYS, SATER, SEYMOUR AND PEASE
-26-
Exhibit 23(a)
Consent of Ernst & Young LLP
- 27 -
<PAGE>
EXHIBIT 23 (a)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the AirNet Systems, Inc. 1996 Incentive Stock Plan of
our report dated November 27, 1995, except for Notes 11 and 12 as to which the
date is May 30, 1996, with respect to the consolidated financial statements of
AirNet Systems, Inc. for the year ended September 30, 1995, included in the
Registration Statement (Form S-1 No. 333-3092), filed with the Securities and
Exchange Commission.
ERNST & YOUNG LLP
Columbus, Ohio
July 12, 1996
- 28 -
Exhibit 24
POWERS OF ATTORNEY
- 29 -
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of AIRNET SYSTEMS, INC., an Ohio corporation, which is about
to file with the Securities and Exchange Commission, Washington, D.C., under
the provisions of the Securities Act of 1933, as amended, a Registration
Statement on Form S-8 for the registration of certain of its common shares for
offering and sale pursuant to the AirNet Systems, Inc. 1996 Incentive Stock
Plan, hereby constitutes and appoints Gerald G. Mercer, Eric P. Roy and
Elizabeth Turrell Farrar, and each of them, as his true and lawful
attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign such Registration Statement and any and all amendments
thereto, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission and The
Nasdaq Stock Market, granting unto each of said attorneys-in-fact and agents,
and substitute or substitutes, full power and authority to 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, hereby ratifying and confirming all things that each of said
attorneys-in-fact and agents, or his, her or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this
15th day of July, 1996.
/s/ Gerald G. Mercer
Gerald G. Mercer
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of AIRNET SYSTEMS, INC., an Ohio corporation, which is about
to file with the Securities and Exchange Commission, Washington, D.C., under
the provisions of the Securities Act of 1933, as amended, a Registration
Statement on Form S-8 for the registration of certain of its common shares for
offering and sale pursuant to the AirNet Systems, Inc. 1996 Incentive Stock
Plan, hereby constitutes and appoints Gerald G. Mercer, Eric P. Roy and
Elizabeth Turrell Farrar, and each of them, as his true and lawful
attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign such Registration Statement and any and all amendments
thereto, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission and The
Nasdaq Stock Market, granting unto each of said attorneys-in-fact and agents,
and substitute or substitutes, full power and authority to 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, hereby ratifying and confirming all things that each of said
attorneys-in-fact and agents, or his, her or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this
15th day of July, 1996.
/s/ Eric P. Roy
Eric P. Roy
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of AIRNET SYSTEMS, INC., an Ohio corporation, which is about
to file with the Securities and Exchange Commission, Washington, D.C., under
the provisions of the Securities Act of 1933, as amended, a Registration
Statement on Form S-8 for the registration of certain of its common shares for
offering and sale pursuant to the AirNet Systems, Inc. 1996 Incentive Stock
Plan, hereby constitutes and appoints Gerald G. Mercer, Eric P. Roy and
Elizabeth Turrell Farrar, and each of them, as his true and lawful
attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign such Registration Statement and any and all amendments
thereto, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission and The
Nasdaq Stock Market, granting unto each of said attorneys-in-fact and agents,
and substitute or substitutes, full power and authority to 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, hereby ratifying and confirming all things that each of said
attorneys-in-fact and agents, or his, her or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this
8th day of July, 1996.
/s/ Tony C. Canonie, Jr.
Tony C. Canonie, Jr.
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of AIRNET SYSTEMS, INC., an Ohio corporation, which is about
to file with the Securities and Exchange Commission, Washington, D.C., under
the provisions of the Securities Act of 1933, as amended, a Registration
Statement on Form S-8 for the registration of certain of its common shares for
offering and sale pursuant to the AirNet Systems, Inc. 1996 Incentive Stock
Plan, hereby constitutes and appoints Gerald G. Mercer, Eric P. Roy and
Elizabeth Turrell Farrar, and each of them, as his true and lawful
attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign such Registration Statement and any and all amendments
thereto, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission and The
Nasdaq Stock Market, granting unto each of said attorneys-in-fact and agents,
and substitute or substitutes, full power and authority to 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, hereby ratifying and confirming all things that each of said
attorneys-in-fact and agents, or his, her or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this
15th day of July, 1996.
/s/ Russell M. Gertmenian
Russell M. Gertmenian
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer
and/or director of AIRNET SYSTEMS, INC., an Ohio corporation, which is about
to file with the Securities and Exchange Commission, Washington, D.C., under
the provisions of the Securities Act of 1933, as amended, a Registration
Statement on Form S-8 for the registration of certain of its common shares for
offering and sale pursuant to the AirNet Systems, Inc. 1996 Incentive Stock
Plan, hereby constitutes and appoints Gerald G. Mercer, Eric P. Roy and
Elizabeth Turrell Farrar, and each of them, as his true and lawful
attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign such Registration Statement and any and all amendments
thereto, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission and The
Nasdaq Stock Market, granting unto each of said attorneys-in-fact and agents,
and substitute or substitutes, full power and authority to 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, hereby ratifying and confirming all things that each of said
attorneys-in-fact and agents, or his, her or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this
8th day of July, 1996.
/s/ J. F. Keeler, Jr.
J. F. Keeler, Jr.
