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As electronically filed with the Securities and Exchange Commission
on January 2, 1997
Registration No. 33-37304-99
================================================================================
POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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ASA HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
GEORGIA 58-2258221
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
100 HARTSFIELD CENTRE PARKWAY, SUITE 800, ATLANTA, GEORGIA 30354
(Address of Principal Executive Office) (Zip Code)
ATLANTIC SOUTHEAST AIRLINES, INC. 1990 STOCK APPRECIATION RIGHTS PLAN
(Full title of the plan)
GEORGE F. PICKETT
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
ASA HOLDINGS, INC.
100 HARTSFIELD CENTRE PARKWAY, SUITE 800
ATLANTA, GEORGIA 30354
(Name and address of agent for service)
(404) 766-1400
(Telephone number, including area code, of agent for service)
------------------------------
Copy to:
CRAIG H. KRITZER
ALTMAN, KRITZER & LEVICK, P.C.
6400 POWERS FERRY ROAD, N.W., SUITE 224
ATLANTA, GEORGIA 30339
(770) 955-3555
------------------------------
THIS POST-EFFECTIVE AMENDMENT SHALL BECOME EFFECTIVE ON THE
DATE OF THE FILING IN ACCORDANCE WITH SECTION 8(c)
OF THE SECURITIES ACT OF 1933
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This post-effective amendment is being filed pursuant to Rule 414
under the Securities Act of 1933, as amended (the "SECURITIES ACT"), to reflect
the completion, on December 31, 1996, by Atlantic Southeast Airlines, Inc.
("AIRLINES") of a corporate reorganization that included creation of a parent
holding company for Airlines (the "REORGANIZATION").
At 11:59 p.m., Eastern Standard Time, December 31, 1996 (the
"EFFECTIVE TIME OF THE MERGER"), Airlines effected a merger (the "MERGER")
with Atlantic Southeast Merging Co., a Georgia corporation ("MERGING CO.")
pursuant to an Amended and Restated Agreement and Plan of Merger dated November
6, 1996 (the "MERGER AGREEMENT"), by and among Airlines, the Registrant, and
Merging Co. Upon the consummation of the Merger, (a) each issued and
outstanding share of Airlines' common stock, $0.10 par value per share
("AIRLINES COMMON STOCK"), other than shares held by Airlines as treasury
shares, was automatically deemed converted into one share of the Registrant's
common stock, $0.10 par value per share ("HOLDINGS COMMON STOCK"), (b) each
issued and outstanding share of common stock of Merging Co. was automatically
deemed converted into one share of the surviving corporation, Airlines, (c) the
shares of Holdings Common Stock owned by Airlines before the Merger were
canceled and (d) the shares of Airlines Common Stock held by Airlines as
treasury shares before the Merger were canceled. Each of Airlines'
shareholders immediately before the Merger have exactly the same proportionate
interest in the Registrant after the consummation of the Merger as their
proportionate interest in Airlines immediately before the Merger.
Airlines is now a wholly owned subsidiary of the Registrant.
Pursuant to the Merger, the respective Board of Directors of Airlines
and the Registrant authorized an amendment of Airlines' 1990 Stock Appreciation
Rights Plan (the "SAR PLAN") to provide that Holdings Common Stock be
substituted for Airlines Common Stock from and after the Effective Time of the
Merger. Further, the Registrant agreed to assume the obligations as a plan
sponsor under the SAR Plan.
In accordance with Rule 414, the Registrant, as the successor issuer,
hereby expressly adopts this registration statement of the Company as its own
for all purposes of the Securities Act and the Securities Exchange Act of 1934,
as amended (the "EXCHANGE ACT").
The registration fees were paid at the time of the original filing of
this registration statement.
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EXPLANATORY NOTE
The section 10(a) prospectus being delivered by the Registrant to participants
in the SAR Plan, as required by Rule 428 under the Securities Act, has been
prepared in accordance with the requirements of Form S-8 and relates to shares
of Holdings Common Stock reserved for issuance upon the exercise of stock
appreciation rights ("SARS") held pursuant to the SAR Plan. The information
required in the section 10(a) prospectus is included in documents being
maintained and delivered by the Registrant as required by Rule 428 under the
Securities Act. The Registrant shall provide to participants in the SAR Plan a
written statement advising them of the availability without charge, upon
written or oral request, of documents incorporated by reference herein, as is
required by Item 2 of Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed with the Securities and Exchange
Commission pursuant to the Exchange Act are incorporated herein by reference.
1. Airlines' Annual Report on Form 10-K for the fiscal year ended
December 31, 1995, as amended by Form 10-K/A (File No.
0-14706); and
2. Airlines' Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1996 (File No. 0-14706); and
3. Airlines' Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1996 (File No. 0-14706); and
4. Airlines' Quarterly Report on Form 10-Q for the fiscal quarter
ended September 30, 1996 (File No. 0-14706); and
5. Airlines' Proxy Statement dated April 15, 1996, with respect
to the Annual Meeting of Shareholders held May 22, 1996 (File
No. 0-14706); and
6. The Registrant's Form S-4 Registration Statement under the
Securities Act of 1933 (Registration No. 333-13071), as
electronically filed with the Commission on September 30,
1996, as amended by Amendment No. 1 to Form S-4 Registration
Statement, as electronically filed with the Commission on
November 7, 1996, as amended by Amendment No. 2 to Form S-4
Registration Statement, as electronically filed with the
Commission on November 13, 1996, as amended by Form 424(b)(3),
as electronically filed with the Commission on November 22,
1996 (collectively, the "REGISTRATION STATEMENT"), which
contains a description of Holdings Common Stock, including
any amendment or report filed for the purpose of updating
such description; and
7. Airlines' Periodic Report on Form 8-K dated November 26, 1996
(File No. 0-14706); and
8. The Registrant's Periodic Report on Form 8-K dated November
26, 1996 (File No. 333-13071).
All other documents filed by the Registrant pursuant to sections 13(a), 13(c),
14 and 15(d) of the Exchange Act subsequent to the date of this registration
statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this registration statement and to be part hereof from the date of
filing of such documents.
Item 4. Description of Securities
Incorporated herein by reference to the description under the caption
"ASA HOLDINGS CAPITAL STOCK" beginning on page 20 of the Registration Statement,
including any amendment or report filed for the purpose of updating such
description.
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Item 5. Interests of Named Experts and Counsel
Certain legal matters in connection with the offering of the Holdings
Common Stock pursuant to this registration statement have been passed upon for
the Registrant by Altman, Kritzer & Levick, P.C., Atlanta, Georgia. Legal
matters with respect to Georgia law will be passed upon by Altman, Kritzer &
Levick, P.C., Atlanta, Georgia.
The consolidated financial statements of Airlines appearing in
Airlines' Annual Report (Form 10-K) for the fiscal year ended December 31,
1995, the financial statements of the Atlantic Southeast Airlines, Inc.
Investment Savings Plan included in Form 10-K/A, Amendment No. 1 to Airlines'
Annual Report (Form 10-K) for the year ended December 31, 1995 and the
September 25, 1996 consolidated balance sheet of the Registrant included in the
Registration Statement (No. 333-13071) have been audited by Ernst & Young LLP,
independent auditors, as set forth in their reports thereon included therein and
incorporated herein by reference. Such financial statements are incorporated
herein by reference in reliance upon such reports of Ernst & Young LLP
pertaining to such financial statements given upon the authority of such firm
as experts in accounting and auditing.
Item 6. Indemnification of Directors and Officers
The Registrant's Articles of Incorporation provide that directors of
the Registrant will not be personally liable for monetary damages to the
Registrant or its shareholders for any action taken, or any failure to take any
action, as directors to the fullest extent permitted by the Georgia Business
Corporation Code (the "GBCC"). Under current Georgia law, directors would
remain liable for: (i) any appropriation, in violation of his duties, of any
business opportunity of the corporation; (ii) acts or omissions that involve
intentional misconduct or a knowing violation of law; (iii) approval of certain
unlawful distributions to shareholders in excess of amounts legally available
for such distributions; and (iv) any transaction from which the director
received an improper personal benefit. In appropriate circumstances, equitable
remedies or nonmonetary relief, such as an injunction, will remain available to
a shareholder seeking redress from any such violation. In addition, the
provision applies only to claims against a director arising out of his role as
a director and not in any other capacity (such as an officer or employee of the
Registrant).
The Bylaws of the Registrant and the GBCC provide that the Registrant
will indemnify its directors and officers, and persons serving at the request
of the Registrant as a director, officer, partner, trustee, employee or agent
of another domestic or foreign corporation, partnership, joint venture, trust,
employee benefit plan or other entity, against all obligations to pay expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by any such person in connection with
threatened, pending or completed actions, suits or proceedings, whether civil,
criminal, administrative or investigative and whether formal or informal, to
which such person becomes subject by having served in such role. Such
indemnification shall be made if such person acted in good faith and he
reasonably believed (x) in the case of conduct in his official capacity, that
such conduct was in the best interest of the Registrant, (y) in all other cases
that such conduct was at least not opposed to the best interests of the
Registrant and, (2) with respect to any criminal proceeding, had no reasonable
cause to believe his conduct was unlawful. An individual's conduct with
respect
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to an employee benefit plan for a purpose he believed in good faith to
be in the interests of the participants and the beneficiaries is conduct that
meets the above standard. The termination of any action, suit or proceeding by
judgment, order, settlement or conviction, or upon a plea of nolo contendere or
its equivalent, will not, of itself, be determinative that such person did not
meet the above standard. With respect to actions by or on behalf of the
Registrant, the foregoing indemnification pursuant to the Bylaws shall not be
paid for judgments, fines, or amounts paid in settlement, but shall be paid for
reasonable expenses (including attorneys' fees) actually incurred in connection
with such actions, suits or proceedings. Notwithstanding the foregoing, no
indemnification shall be made in respect of any claim, issue or matter as to
which any person shall have been adjudged to be liable to the Registrant unless
and only to the extent that the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability
but in view of all relevant circumstances, it is fair and reasonable to
indemnify such person for such expenses which the court shall deem proper.
Pursuant to the GBCC, indemnification is mandatory with respect to a
director or officer who is successful, on the merits or otherwise, with respect
to any claim, action, suit or proceeding of the character described above or
any issue or matter therein. In other cases, pursuant to the Registrant's
Bylaws and the GBCC, the Registrant will indemnify the persons discussed in the
immediately preceding paragraph only upon, at the option of the person to be
indemnified, one of the following procedures; (a) order of the court or
administrative body or agency having jurisdiction of the action, suit or
proceeding, (b) if there are two or more disinterested directors of the
Registrant, a resolution adopted by a majority vote of all disinterested
directors of the Registrant (a majority of whom shall for such purpose
constitute a quorum) or by a majority of a committee of two or more
disinterested directors appointed by such a vote, or if such a quorum of
disinterested directors can not be obtained, by independent counsel in a
written opinion, (c) a resolution adopted by a majority in the interest of the
shares of the Registrant entitled to vote at any meeting, but shares owned by
or voted under the control of a director who at the time does not qualify as a
disinterested director may not be voted on the determination, or (d) order of
any court having jurisdiction over the Registrant. A majority of the members
of the Board of Directors of the Registrant who were not parties to such
action, suit or proceeding or a majority in interest of the shares of the
Registrant entitled to vote shall be authorized to pay to any person entitled
to indemnification all actual expenses incurred in connection with such action,
suit or proceeding during the pendency thereof.
Pursuant to Registrant's Bylaws and the GBCC, if any amounts are paid
by way of indemnification, other then pursuant to a court order or action by
the shareholders or by an insurance carrier pursuant to insurance maintained by
Registrant, then Registrant is required to send notice to all shareholders of
record of the person paid, the amounts paid and the status at the time of such
payment of the ligation or threatened litigation.
The Registrant maintains a directors' and officers' liability
insurance policy covering certain losses arising from claims made against them
by reason of wrongful acts (with certain exceptions) committed by them in their
capacities as directors and officers. The insurer's limit of liability under
the policy is $10 million per policy year, subject to the exceptions and other
limitations set forth therein. The Registrant also maintains a directors' and
officers' excess liability insurance policy covering certain losses arising
from claims made against them by reason of wrongful acts (with certain
exceptions) committed by them in their capacities as directors and officers.
The insurer's limit of liability under this policy is also $10 million per
policy year, subject to the exceptions and other limitations set forth therein.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling
Registrant pursuant to the foregoing provisions, the Commission requires
disclosure that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, in their
opinion, therefore unenforceable.
Item 7. Exemption from Registration Claimed
Not applicable.
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Item 8. Exhibits
4.1 - Articles of Incorporation of the Registrant. (Incorporated by
reference to Exhibit No. 3(a) to the Registration Statement.)
4.2 - Bylaws of the Registrant. (Incorporated by reference to
Exhibit No. 3(b) to the Registration Statement.)
5.1 - Opinion of Altman, Kritzer & Levick, P.C. as to the legality
of shares of Common Stock being registered.
23.1 - Consent of Ernst & Young LLP, dated January 2, 1997.
23.2 - Consent of Altman, Kritzer & Levick, P.C. (Included in their
opinion filed as Exhibit 5.1.)
24 - Power of Attorney. (Included on signature page of this
registration statement.)
Item 9. Undertakings
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 to include any material information with respect to
the plan of distribution not previously disclosed in this registration
statement or any material change to such information 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.
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 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.
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 registrant's articles of
incorporation or by-laws, by contract, 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.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
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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 the requirements for filing on Form S-8 and has duly caused
this Post-Effective Amendment No. 1 to Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Atlanta, State of Georgia, on this 2nd day of January, 1997.
ASA HOLDINGS, INC.
By: /s/ George F. Pickett
-----------------------------------------
George F. Pickett, Chairman of the Board
and Chief Executive Officer
(Principal Executive Officer)
We, the undersigned officers and directors of ASA Holdings, Inc.,
hereby severally constitute George F. Pickett and John W. Beiser and each of
them singly, our true and lawful attorneys with full power to them, and each of
them singly, to sign for us and in our names in the capacities indicated below,
any and all amendments, including post-effective amendments, to this
registration statement, and generally do all such things in our name and behalf
in such capacities to enable ASA Holdings, Inc. to comply with the applicable
provisions of the Securities Act of 1933, as amended, and all requirements of
the Securities and Exchange Commission, and we hereby ratify and confirm our
signatures as they may be signed by our said attorneys, or either of them, to
any and all such amendments.
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 to Registration Statement has been signed below
by the following persons in the capacities indicated this 2nd day of January,
1997.
/s/ George F. Pickett January 2, 1997
- -----------------------------------------------------
George F. Pickett, Chairman of the Board
and Chief Executive Officer (Principal
Executive Officer) and Director
/s/ John W. Beiser January 2, 1997
- -----------------------------------------------------
John W. Beiser, President, Secretary and Director
/s/ Ronald V. Sapp January 2, 1997
- -----------------------------------------------------
Ronald V. Sapp, Vice President - Finance and
Treasurer (Principal Financial and Accounting
Officer)
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
/s/ Alan M. Voorhees January 2, 1997
- -----------------------------------------------------
Alan M. Voorhees, Director
/s/ Ralph W. Voorhees January 2, 1997
- -----------------------------------------------------
Ralph W. Voorhees, Director
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBITS PAGE NUMBER
-------- -----------
<S> <C> <C>
4.1 Articles of Incorporation of the Registrant. (Incorporated by reference to
Exhibit No. 3(a) to the Registration Statement.)
4.2 Bylaws of the Registrant. (Incorporated by reference to Exhibit No. 3(b)
to the Registration Statement.)
5.1 Opinion of Altman, Kritzer & Levick, P.C. as to the legality of shares of 11
Common Stock being registered.
23.1 Consent of Ernst & Young LLP, dated January 2, 1997. 13
23.2 Consent of Altman, Kritzer & Levick, P.C. (Included in their opinion filed
as Exhibit 5.1.)
24 Power of Attorney. (Included on signature page of this registration
statement.)
</TABLE>
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EXHIBIT 5.1
[ALTMAN, KRITZER & LEVICK, P.C. LETTERHEAD]
January 2, 1997
ASA Holdings, Inc.
Suite 800
100 Hartsfield Centre Parkway
Atlanta, Georgia 30354
Re: Form S-8 Registration Statement (the "REGISTRATION STATEMENT")
relating to shares of Common Stock, $0.10 par value per share,
of ASA Holdings, Inc. (the "COMMON STOCK"), and the Atlantic
Southeast Airlines, Inc. 1990 Stock Appreciation Rights Plan
(the "PLAN")
Gentlemen:
We have acted as counsel for ASA Holdings, Inc., a Georgia corporation
("ASA HOLDINGS"), in connection with the preparation and filing by ASA Holdings
of the Registration Statement with respect to the registration of the shares of
Common Stock offered and sold pursuant to the terms of the Plan.
As such counsel, we have examined and relied upon such records,
documents, certificates and other instruments as in our judgment are necessary
or appropriate to form the basis for the opinion hereinafter set forth. In all
such examinations, we have assumed the genuineness of signatures on original
documents and the conformity to such original documents of all copies submitted
to us as certified, conformed or photographic copies, and as to certificates of
public officials, we have assumed the same to have been properly given and to
be accurate.
Based upon the foregoing, we are of the opinion that the proposed
issuance of up to 900,000 shares of Common Stock under the Plan has been duly
authorized, and, when issued in accordance with the terms set forth in the
Plan, such shares will be validly issued, fully paid and nonassessable.
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ASA Holdings, Inc.
January 2, 1997
Page 2
We consent to the filing of this opinion as an Exhibit to the
Registration Statement and related Prospectus pertaining to the Plan and to the
reference to us under the caption "Interests of Named Experts and Counsel" in
the Registration Statement.
Very truly yours,
ALTMAN, KRITZER & LEVICK, P.C.
By: /s/ Richard W. Probert
----------------------
Richard W. Probert
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EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Interests
of Named Experts and Counsel" in the Registration Statement on Form S-8 and
related prospectus pertaining to the Atlantic Southeast Airlines, Inc. 1990
Stock Appreciation Rights Plan and to the incorporation by reference therein of
our reports (a) dated February 2, 1996, with respect to the consolidated
financial statements and schedule of Atlantic Southeast Airlines, Inc.
included in its Annual Report (Form 10-K) for the year ended December 31, 1995,
(b) dated September 25, 1996 with respect to the consolidated balance sheet of
ASA Holdings, Inc. included in its Registration Statement on Form S-4, as
amended (No. 333-13071), and (c) dated June 6, 1996, with respect to the
financial statements and schedules of the Atlantic Southeast Airlines, Inc.
Investment Savings Plan included in the Annual Report (Form 10-K/A, Amendment
No. 1 to Atlantic Southeast Airlines, Inc.'s Annual Report [Form 10-K]) for the
year ended December 31, 1995, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Atlanta, Georgia
January 2, 1997
13
