As filed with the Securities and Exchange Commission
on July 10, 1998
Registration No. 333-58481
=================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------
TRANS WORLD AIRLINES, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 4512 43-1145889
(State of (Primary Standard (I.R.S. Employer
Incorporation) Industrial Identification No.)
Classification
Code Number)
One City Centre
515 N. Sixth Street
St. Louis, Missouri 63101
(314) 589-3000
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's
Principal Executive Offices)
------------
Gerald L. Gitner Copies to:
Chairman and Chief David W. Hirsch, Esq.
Executive Officer Cleary, Gottlieb,
One City Centre, Steen & Hamilton
515 N. Sixth Street One Liberty Plaza
St. Louis, Missouri 63101 New York, New York 10006
(314) 589-3000 (212) 225-2000
(Name, Address, Including
Zip Code, and Telephone
Number, Including
Area Code, of
Agents for Service)
------------
Approximate date of commencement of proposed sale to the
public: From time to time after the effective date of this
registration statement.
If the only securities being registered on this Form are
being offered pursuant to dividend or interest reinvestment
plans, please check the following box. |_|
If any of the securities being registered on this Form are
to be offered on a delayed or continuous basis pursuant to Rule
415 under the Securities Act of 1933, as amended (the "Securities
Act"), other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box.
|X|
If this Form is filed to register additional securities for
an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant
to Rule 462(c) under the Securities Act, check the following box
and list the Securities Act registration number of the earliest
effective registration statement for the same offering. |_|
If delivery of the prospectus is expected to be made
pursuant to Rule 434 under the Securities Act, please check the
following box. |_|
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON
SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE
DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH
SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL
THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT, OR UNTIL THE REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT
TO SAID SECTION 8(A), MAY DETERMINE.
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PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution
SEC registration fee...... $ 3,869
Accounting fees........... 15,000*
Legal fees................ 50,000*
Miscellaneous............. 50,000*
--------
TOTAL.................... $118,869*
========
- ------------
* Estimated
ITEM 15. Indemnification of Directors and Officers
Under the Delaware General Corporation Law (the "DGCL"),
directors, officers, employees and other individuals may be
indemnified against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection
with specified actions, suits or proceedings, whether civil,
criminal, administrative or investigative (other than a
derivative action) if they acted in good faith and in a manner
they reasonably believed to be in or not opposed to the best
interests of TWA and, with respect to any criminal action or
proceeding, had no reasonable cause to believe their conduct was
unlawful. A similar standard of care is applicable in the case of
a derivative action, except that indemnification only extends to
expenses (including attorneys' fees) incurred in connection with
the defense or settlement of such an action, and the DGCL
requires court approval before there can be any indemnification
of expenses where the person seeking indemnification has been
found liable to TWA.
The eleventh article of TWA's Third Amended and Restated
Certificate of Incorporation ("Article Eleventh") provides that
the Company shall indemnify any person who was or is a party or
is threatened to be made a party to, or testifies in, any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative in
nature, by reason of the fact that such person is or was a
director, officer, employee or agent of the Company, or is or was
serving at the request of the Company as a director, officer,
employee or agent of another corporation, partnership, joint
venture, employee benefit plan, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding
to the full extent permitted by law, and the Company may adopt
By-laws or enter into agreements with any such person for the
purpose of providing for such indemnification.
To the extent that a director or officer of the Company has
been successful on the merits or otherwise (including without
limitation settlement by nolo contendere) in defense of any
action, suit or proceeding referred to in the immediately
preceding paragraph, or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by
such person in connection therewith.
Expenses incurred by an officer, director, employee or
agent in defending or testifying in a civil, criminal,
administrative or investigative action, suit or proceeding may be
paid by the Company in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or
on behalf of such director or officer to repay such amount if it
shall ultimately be determined that such director or officer is
not entitled to be indemnified by the Company against such
expenses as authorized by Article Eleventh and the Company may
adopt By-laws or enter into agreements with such persons for the
purpose of providing for such advances.
The indemnification permitted by Article Eleventh shall not
be deemed exclusive of any other rights to which any person may
be entitled under any agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in such
person's official capacity and as to action in another capacity
while holding an office, and shall continue as to a person who
has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators
of such person.
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The Company shall have power to purchase and maintain
insurance on behalf of any person who is or was a director,
officer, employee or agent of the Company, or is or was serving
at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture,
employee benefit plan trust or other enterprise, against any
liability asserted against such person and incurred by such
person in any such capacity, or arising out of such person's
status as such, whether or not the Company would have the power
to indemnify such person against such liability under the
provisions of Article Eleventh or otherwise.
If the DGCL is amended to further expand the
indemnification permitted to directors, officers, employees or
agents of the Company, then the Company shall indemnify such
persons to the fullest extent permitted by the DGCL, as so
amended.
The obligations of the Company to indemnify any person
serving as one of its directors, officers or employees as of or
following the Company's '93 Reorganization, by reason of such
person's past or future service in such a capacity, or as a
director, officer or employee of another corporation, partnership
or other legal entity, to the extent provided in Article Eleventh
or in similar constituent documents or by statutory law or
written agreement of or with the Company, shall be deemed and
treated as executory contracts assumed by the Company pursuant to
the Company's '93 Reorganization. Accordingly, such
indemnification obligations survive and were unaffected by the
entry of the order confirming the Company's '93 Reorganization.
The obligations of the Company to indemnify any person who, as of
the '93 Reorganization, was no longer serving as one of its
directors, officers or employees, which indemnity obligation
arose by reason of such person's prior service in any such
capacity, or as a director, officer or employee of another
corporation, partnership or other legal entity, to the extent
provided in the certificate of incorporation, by-laws or other
constituent documents or by statutory law or written agreement of
or with TWA were terminated and discharged pursuant to Section
502(e) of the United States Bankruptcy Code or otherwise, as of
the date the '93 Reorganization was confirmed. Nothing contained
in the Third Amended and Restated Certificate of Incorporation of
the Company shall be deemed to reinstate any obligation of the
Corporation to indemnify any person or entity, which was
otherwise released under or in connection with the Comprehensive
Settlement Agreement entered into pursuant to the '93
Reorganization.
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 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 of whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
ITEM 16. Exhibits
(a) Exhibits
*2.1 --Joint Plan of Reorganization, dated on May 12, 1995
(Appendix B to the Registrant's Registration Statement
on Form S-4, Registration Number 33-84944, as amended)
*2.2 --Modifications to Joint Plan of Reorganization, dated
July 14, 1995 and Supplemental Modifications to Joint
Plan of Reorganization dated August 2, 1995 (Exhibit 2.5
to 6/95 10-Q)
*2.3 --Findings of Fact, Conclusions of Law and Order Confirming
Modified Joint Plan of Reorganization, dated August 4,
1995, with Exhibits A-B attached (Exhibit 2.6 to 6/95
10-Q)
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*2.4 --Final Decree, dated December 28, 1995, related to the
'95 Reorganization (Exhibit 2.7 to 12/31/95 Form 10-K)
*4.1 --Third Amended and Restated Certificate of Incorporation
of the Registrant (Exhibit 3(i) to the Registrant's
Registration Statement on Form S-4, Registration Number
333-26645)
*4.2 --Amended and Restated By-Laws of Trans World Airlines,
Inc., effective May 24, 1996 (Exhibit 3(ii) to 6/96
10-Q)
**5 --Opinion of Cleary, Gottlieb, Steen & Hamilton, Counsel
to the Registrant, regarding the validity of the
securities being registered
12 --Statement re: Computation of Ratio of Earnings to
Fixed Charges
**23.1 --Consent of KPMG Peat Marwick LLP
**23.2 --Consent of Cleary, Gottlieb, Steen & Hamilton, Counsel
to the Registrant (included in Exhibit 5)
**24 --Powers of Attorney
---------------
* Incorporated by reference
** Previously filed
(b) Schedules
All supplementary schedules relating to the Registration
Statement are omitted because they are not required or because
the required information, where material, is contained in the
Consolidated Financial Statements incorporated by reference from
the 12/31/97 Form 10-K and 3/31/98 Form 10-Q.
ITEM 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not
exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a
20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement.
(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.
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(3) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
section 13(a) or section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form
of prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of prospectus
filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of
this registration statement as of the time it was declared
effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that
contains a form of prospectus 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.
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<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 the requirements for filing on Form S-3 and
has duly caused this Amendment No. 1 to the Registration
Statement on Form S-3 to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of St. Louis,
State of Missouri, July 9, 1998.
TRANS WORLD AIRLINES, INC.
July 9, 1998
By /s/ Michael J. Palumbo
-----------------------------
Michael J. Palumbo,
Senior Vice President
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933,
this Amendment No. 1 to the Registration Statement on Form S-3
has been signed by the following persons in the capacities and on
the dates indicated.
Signatures Title Date
---------- ----- ----
/s/ Gerald L. Gitner Director, Chairman of July 9, 1998
-------------------- the Board and Chief
Gerald L. Gitner Executive Officer
(Principal Executive
Officer)
/s/ Michael J. Palumbo Senior Vice President July 9, 1998
-------------------- and Chief Financial
Michael J. Palumbo Officer (Principal
Financial Officer
and Principal
Accounting Officer)
* Director July 9, 1998
--------------------
John W. Bachmann
* Director July 9, 1998
--------------------
William F. Compton
* Director July 9, 1998
--------------------
Eugene P. Conese
* Director July 9, 1998
--------------------
Sherry L. Cooper
* Director July 9, 1998
--------------------
Edgar M. House
* Director July 9, 1998
--------------------
Thomas H. Jacobsen
* Director July 9, 1998
--------------------
Myron Kaplan
* Director July 9, 1998
--------------------
David M. Kennedy
* Director July 9, 1998
--------------------
General Merrill A.
McPeak
* Director July 9, 1998
--------------------
Thomas F. Meagher
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* Director July 9, 1998
--------------------
Brent S. Miller
* Director July 9, 1998
--------------------
William O'Driscoll
* Director July 9, 1998
--------------------
G. Joseph Reddington
* Director July 9, 1998
--------------------
Blanche M. Touhill
*By: /s/ Kathleen A. Soled July 9, 1998
------------------
Kathleen A. Soled
as Attorney-in-fact
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EXHIBIT INDEX
*2.1 --Joint Plan of Reorganization, dated May 12, 1995
(Appendix B to the Registrant's Registration Statement
on Form S-4, Registration Number 33-84944, as amended)
*2.2 --Modifications to Joint Plan of Reorganization, dated
July 14, 1995 and Supplemental Modifications to Joint
Plan of Reorganization dated August 2, 1995 (Exhibit 2.5
to 6/95 10-Q)
*2.3 --Findings of Fact, Conclusions of Law and Order Confirming
Modified Joint Plan of Reorganization, dated August 4,
1995, with Exhibits A-B attached (Exhibit 2.6 to 6/95
10-Q)
*2.4 --Final Decree, dated December 28, 1995, related to the
'95 Reorganization (Exhibit 2.7 to 12/31/95 Form 10-K)
*4.1 --Third Amended and Restated Certificate of Incorporation
of the Registrant (Exhibit 3(i) to the Registrant's
Registration Statement on Form S-4, Registration Number
333-26645)
*4.2 --Amended and Restated By-Laws of Trans World Airlines,
Inc., effective May 24, 1996 (Exhibit 3(ii) to 6/96
10-Q)
**5 --Opinion of Cleary, Gottlieb, Steen & Hamilton, Counsel
to the Registrant, regarding the validity of the
securities being registered
12 --Statement re: Computation of Ratio of Earnings to
Fixed Charges
**23.1 --Consent of KPMG Peat Marwick LLP
**23.2 --Consent of Cleary, Gottlieb, Steen & Hamilton, Counsel
to the Registrant (included in Exhibit 5)
**24 --Powers of Attorney
---------------
* Incorporated by reference
** Previously filed
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EXHIBIT 12
TRANS WORLD AIRLINES, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
Prior
Predecessor
Company Predecessor Company Reorganized Company
----------- ------------------------------------------------- -------------------------------------------
Ten Two Eight Four Four
Months Months Months Months Months Years Three Months
Ended Ended Year Ended Ended Ended Ended December 31, Ended March 31,
October 31, December 31, December 31, August 31, December 31, ---------------- ----------------
1993 1993 1994 1995 1995 1996 1997 1997 1998
---- ---- ---- ---- ---- ---- ---- ---- ----
Loss from
operations
before
income taxes $(362,620) $(88,140) $(432,869) $(338,309) $(32,268) $(274,577) $ (89,335) $(105,193) $(79,558)
Add:
Interest on
indebtedness(1) 91,877 31,204 195,352 123,247 45,917 126,822 114,066 28,397 30,215
Portion of
rents repre-
sentative of
the interest
factor 57,821 12,198 87,122 60,849 32,131 100,997 123,609 28,608 34,635
--------- -------- --------- --------- -------- --------- --------- --------- --------
Income as
adjusted $(212,922) $(44,738) $(150,395) $(154,213) $ 45,780 $ (46,758) $ 148,340 $ (48,188) $(14,708)
--------- -------- --------- --------- -------- --------- --------- --------- --------
Fixed Charges:
Interest on
indebtedness $ 91,877 $ 31,204 $ 195,352 $ 123,247 $ 45,917 $ 126,822 $ 114,066 $ 28,397 $ 30,125
Capitalized
interest 2,104 267 2,133 -- -- 5,463 4,784 510 1,027
Portion of
rents repre-
sentative of
the interest
factor 57,821 12,198 87,122 60,849 32,131 100,997 123,609 28,608 34,635
--------- -------- --------- --------- -------- --------- --------- --------- --------
Fixed Charges $ 151,802 $ 43,669 $ 284,607 $ 184,096 $ 78,048 $ 233,282 $ 242,459 $ 57,515 $ 65,877
--------- -------- --------- --------- -------- --------- --------- --------- --------
Ratio of
earnings
to fixed
charges (1.40) (1.02) (0.53) (0.84) 0.59 (0.20) 0.61 (0.84) (0.22)
--------- -------- --------- --------- -------- --------- --------- --------- --------
Deficiency $ 364,724 $ 88,407 $ 435,002 $ 338,309 $ 32,268 $ 280,040 $ 94,119 $ 105,703 $ 80,585
--------- -------- --------- --------- -------- --------- --------- --------- --------
(1) Includes amortization of expense on debt.
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