<PAGE>
As filed with the Securities and Exchange Commission on March 13, 1996
Registration No. 33-______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
MERCURY AIR GROUP, INC.
(Exact name of registrant as specified in charter)
New York 11-1800515
(State of incorporation) (I.R.S. Employer
Identification Number)
5456 McConnell Avenue Los Angeles, California 90066
(Address of principal executive offices) (Zip Code)
Mercury Air Group, Inc.
Employee Stock Purchase Plan
(Full titles of plans)
Seymour Kahn
Chairman of the Board and Chief Executive Officer
Mercury Air Group, Inc.
5456 McConnell Avenue
Los Angeles, California 90066
(310) 827-2737
(Name and address, including zip code, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
Proposed maximum
Title of maximum aggregate Amount of
Securities to Amount to be offering offering registration
be registered registered price(1) price(1) fee
<S> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------
Common Stock,
$.01 Par Value 100,000 shares $9.13 $913,000 $314.82
- -----------------------------------------------------------------------------------------------------
</TABLE>
(1) Calculated pursuant to Rule 457 based on the average of the high and low
prices reported on the American Stock Exchange on March 11, 1996 for
registrant's Common Stock, $.01 par value.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The information required for this Item is included in documents
distributed to each participant.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The information required for this Item is included in documents
distributed to each participant.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents which have been filed by Mercury Air Group,
Inc., a New York corporation (the "Company") with the Securities and Exchange
Commission are incorporated by reference into this Registration Statement:
(1) The Annual Report of the Company on Form 10-K for the fiscal year
ended June 30, 1995; the Quarterly Report on Form 10-Q of the Company for the
quarter ended September 30, 1995; and the Quarterly Report on Form 10-Q of
the Company for the quarter ended December 31, 1995; and
(2) The description of the Company's Common Stock, $.01 par value
("Common Stock"), contained in its Registration Statement on Form 8-A filed
under the Securities Exchange Act of 1934.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934, prior to the filing of a
post-effective amendment to the Registration Statement that indicates that
all securities offered hereby have been sold or which deregisters such
securities remaining unsold, shall be deemed to be incorporated herein by
reference and to be a part hereof from the date of filing of such documents.
Any statement contained herein or in any document incorporated or deemed
incorporated herein by reference shall be deemed modified or superseded to
the extent that a statement contained in any subsequently filed document
which is also deemed incorporated herein by reference modifies or supersedes
such earlier statement.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS OR COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 722 of the New York Business Corporation Law (the "NYBCL")
authorizes indemnification by a corporation of its directors and officers
against amounts paid in settlement and reasonable expenses, including
attorneys' fees, actually and necessarily incurred by them in connection with
the defense or settlement of such action, or in connection with an appeal
therein, if such director or officer acted in good faith for a purpose which
they reasonably believed to be in the best interests of the corporation. No
indemnification will be made, however, in respect of an action brought
derivatively or by or in the right of the corporation if (1) a threatened
action, or a pending action which is settled or otherwise disposed of, or (2)
any claim, issue or matter as to which any such officer or director is
adjudged to be liable to the corporation, unless and only to the extent that
the court to which the action was brought, or, if no action was brought, any
court of competent jurisdiction, determines upon application that in view of
all the circumstances of the case, the director or officer is fairly and
reasonably entitled to indemnity for such portion of the settlement amount
and expenses as the court deems proper.
The indemnification provided in Section 722 of the NYBCL is mandatory in
any instance where the officer or director is successful on the merits in
defending a civil or criminal action. Otherwise, indemnification can only be
made pursuant to a specific authorization given in a particular case. Such
authorization must be contained in court order, resolution approved by a
quorum of disinterested directors, resolution of the board following a
written opinion of independent counsel that indemnification is proper or
shareholder resolution. Expenses incurred in defending an action may be
advanced pending final disposition of such action upon receipt of an
undertaking to reimburse such advances if it is ultimately determined that
indemnification is not appropriate.
The Company's bylaws authorize it to indemnify its directors and
officers against any judgments, fines, amounts paid in settlement and
reasonable expenses, including attorneys' fees, if such director or officer
acted in good faith.
The Company further has entered into indemnification agreements with its
officers and directors obligating it to
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<PAGE>
indemnify them to the fullest extent permitted by law. The indemnification
agreements obligate the Company to advance expenses pending a resolution of
whether or not indemnification is ultimately appropriate upon receipt of an
undertaking. The indemnification agreements further provide a presumption in
favor of indemnification and procedures and standards for implementing the
indemnification permitted pursuant to Section 722 of the NYBCL.
The NYBCL further provides that a New York corporation has the power to
purchase and maintain insurance in order to indemnify the corporation for any
obligation which it incurs as a result of the indemnification of directors
and officers pursuant to the provisions of the NYBCL, to indemnify directors
and officers in instances in which they may be indemnified by the corporation
pursuant to the provisions of the NYBCL, and to indemnify directors and
officers in instances in which they may not otherwise be indemnified by the
corporation pursuant to the provisions of the NYBCL, provided the contract of
insurance covering such directors and officers provides, in a manner
acceptable to the superintendent of insurance, for a retention amount and for
co-insurance. The Company has purchased an officers and directors liability
insurance policy.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Mercury Air Group, Inc. Employee Stock Purchase Plan
23.1 Consent of Deloitte & Touche
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:
(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
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<PAGE>
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the registration statement is on Form S-3 or Form S-8, and 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 the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment shall be deemed 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.
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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions or otherwise, the Company
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
Company of expenses incurred or paid by a director, officer or controlling
person of the Company 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 Company 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.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized in the City of Los Angeles, State of California, on the 27th day
of February 1996.
MERCURY AIR GROUP. INC.
By: SEYMOUR KAHN
--------------------------
Seymour Kahn
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Seymour Kahn and Randolph E. Ajer his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities Exchange Commission, granting unto said attorney-in-fact and agent
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 that said attorney-in-fact and agent or his substitutes or
substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- ---------- ----- ----
<S> <C> <C>
Seymour Kahn Chairman of the Board and Chief February 27, 1996
Executive Officer
(Principal Executive Officer)
Randolph E. Ajer Secretary, Chief Financial February 27, 1996
Officer, Chief Accounting
Officer, Treasurer and
Executive Vice President
(Principal Financial and
Accounting Officer)
Robert L. List Director February 27, 1996
Philip J. Fagan, Jr., M.D. Director February 27, 1996
William G. Langton Director February 27, 1996
Joseph A. Czyzyk Chief Operating Officer, February 27, 1996
Director
</TABLE>
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<PAGE>
MERCURY AIR GROUP, INC.
EMPLOYEE STOCK PURCHASE PLAN
1. NAME OF PLAN. The name of this plan is the Mercury Air Group, Inc.
Employee Stock Purchase Plan ("Plan").
2. PURPOSE OF PLAN. The purpose of the Plan is to provide employees
with a method of investing in shares ("Plan Shares") of the common stock
("Common Stock") of Mercury Air Group, Inc. ("Company"). Merrill Lynch,
Pierce, Fenner & Smith Incorporated ("Agent") is the agent for participants
in connection with the Plan.
3. ELIGIBILITY.
(a) To be eligible to participate in the Plan, an individual must:
(i) Be a full-time employee or a part-time employee who has
worked for the Company an average of at least twenty (20) hours per
week for the past six (6) months;
(ii) Have attained at least the age of majority in the state
which he or she is employed;
(iii) Have completed at least six (6) months of continuous
employment with the Company; and
(iv) Have a valid Social Security number.
For purposes of determining the length of an employee's period of
service, periods while the employee is on a Company-approved leave of
absence will be taken into account to the extent required by applicable
law.
(b) The Plan is available to the employees of the Company, as well
as to the employees of the Company's subsidiaries as may be designated
by the Board of Directors of the Company.
(c) Employees who are included in a unit of employees covered by a
collective bargaining agreement are excluded from participating in the
Plan, unless the collective bargaining agreement expressly provides
otherwise.
4. ENROLLMENT IN THE PLAN.
(a) Eligible employees may elect to become a participant in the Plan
("Participant") by returning to the Company a properly completed
enrollment form.
(b) Enrollment will occur on the first day of a calendar quarter.
<PAGE>
(c) Employees can cease making contributions at any time, but they
can only recommence making them on a quarterly enrollment date.
5. CONTRIBUTIONS.
(a) Each Participant may elect to contribute up to two thousand
dollars ($2,000) per calendar year. This election is made by executing an
Enrollment Form that authorizes the Company to withhold from the
Participant's compensation a specified dollar amount per payroll period
("Payroll Deductions").
(b) The Company will contribute an amount to the Plan for each month
an amount equal to fifteen percent (15%) of the amount of Payroll
Deductions that month. The Company will determine when the contribution
is paid to the Plan.
6. ACCOUNTS. After the receipt of a properly completed Enrollment
Form from a Participant, the Agent will open an account ("Account") for the
Participant and will credit to the Account:
(a) All shares of Common Stock purchased with Payroll Deductions
received by the Agent on behalf of the Participant;
(b) All whole and fractional Plan Shares purchased for the
Participant;
(c) Any shares of Common Stock distributed by the Company as a
dividend (or otherwise) with respect to the Plan Shares held in the
Participant's Account; and
(d) All cash dividends distributed by the Company with respect to
the Plan Shares held in the Participant's Account.
7. COMMINGLING OF FUNDS. Payroll Deductions and cash dividends
credited to a Participant's Account may be commingled with the Payroll
Deductions and cash dividends credited to other Participant's Accounts.
8. PURCHASE OF PLAN SHARES.
(a) Payroll Deductions and cash dividends will be applied to the
purchase of Plan Shares. However, a Participant may elect, in the manner
prescribed by the Agent, that the cash dividends paid with respect to the
Plan Shares held in the Participant's Account be paid directly to him or
her.
(b) Pending investment, all funds will be held in an interest-bearing
account. Interest earned on funds held in the Plan will be used to reduce
future Company contributions to the Plan.
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<PAGE>
(c) The price at which the Agent shall be deemed to have acquired
shares for each Participant's Account shall be the average price of all
Plan Shares purchased by the Agent for Participants.
(d) The Agent will make reasonable efforts to invest all funds
promptly after receipt, but in no event later than thirty (30) days after
receipt, except where the investments are restricted by applicable state
or federal law.
(e) If for any reason the Agent is precluded from acquiring
Common Stock for thirty (30) consecutive days, the Agent shall remit the
amount of each Participant's Account to the Participant promptly after
the thirtieth (30th) day.
(f) The Agent may purchase shares of unrestricted Common Stock on
any securities exchange where the Common Stock is traded in the
over-the-counter market or in negotiated transactions. However, no
purchases may be made from the Company or any affiliate of the Company.
Purchases shall be made on such terms as to price, delivery, or
otherwise as the Agent may determine.
9. SHARE CERTIFICATES.
(a) The Agent may hold the Plan Shares of all Participants in the
Agent's name or in the name of the Agent's nominee. However, the
underlying records of the Agent shall indicate the true ownership of the
Plan Shares.
(b) No certificates will be delivered to a Participant for Plan
Shares except:
(i) Upon the written request by the Participant (in the manner
prescribed by the Agent); or
(ii) Upon the termination of the Participant's Account.
(c) A Participant may request a certificate for the number of whole
shares credit to the Participant's Account at any time. No certificate
will be delivered for a fractional share.
(d) The certificates will be registered in the Participant's name.
Certificates will be registered and issued in another name only upon
satisfaction of all of the following conditions:
(i) A written request must be made by the Participant in
accordance with the requirements of the Company relating to transfers
of Common Stock;
(ii) Compliance with all applicable laws; and
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<PAGE>
(iii) The Participant's payment of any applicable fees and
taxes.
10. PERIODIC STATEMENTS. As soon as practicable at the end of each
quarter, the Agent will mail to each Participant a statement listing all
activities in the Participant's Account during that quarter.
11. COSTS.
(a) All brokerage commissions with respect to the shares purchased
by the Agent for the Plan shall be paid by the Company.
(b) In the event that one hundred (100) or more shares are
transferred to the Participant, the Company will pay the transactional
fees associated with issuing the shares. However, if fewer than one hundred
(100) shares are to be issued, the Participant must pay the fees.
12. SHAREHOLDER INFORMATION.
(a) The Agent will forward to each Participant, as soon as
practicable, any proxy solicitation or other materials received from the
Company.
(b) The Agent will vote the whole and/or fractional Plan Shares that
it holds for each Participant's Account in accordance with the
Participant's directions.
(c) If a Participant does not return a signed proxy to the Agent
within the time specified, the Agent will or will not vote the shares
in accordance with the New York Stock Exchange and Securities and
Exchange Commission rules, then in effect, regarding broker voting.
13. ELECTIONS REGARDING TERMINATION OF ACCOUNT.
(a) A Participant may terminate his or her Account at any time by
giving a notice to the Agent. A Participant's Account will terminate
following the termination of his or her employment.
(b) Upon termination of the Account, the Participant may elect to
receive:
(i) A certificate representing the whole number of Plan Shares
credited to the Participant's Account and cash in lieu of any
fractional share; or
(ii) Cash for the whole and fractional number of Plan Shares
credited to the Participant's Account.
(c) If no election is made by the Participant in a timely manner,
the Participant will receive a certificate for the whole number of Plan
Shares and cash for any fractional share held in the Participant's Account.
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<PAGE>
14. EFFECTUATION OF TERMINATION OF ACCOUNT.
(a) Upon receipt by the Agent of a Participant's election to receive
cash for his or her Plan Shares (made pursuant to Section 13 above), the
Agent will sell the Plan Shares as soon as practicable thereafter and
deliver the proceeds of the sale to the Participant, reduced by the
brokerage commissions and any other costs of the sale.
(b) The whole and fractional shares in the Participant's Account may
be aggregated and sold with those of other terminating Participants. The
amount of the proceeds to be delivered to each Participant will be
determined using the average sale price of all shares so aggregated and
sold, reduced by the Participant's proportionate share of the brokerage
commissions and any other costs of the sale.
(c) All sales pursuant to this Section 14 may, but need not, be
effected by purchases for other Participants' Accounts, in which case the
sale price for the shares will be deemed to be the first available
trading price of the Common Stock as reported by the principal stock
exchange (or other appropriate market on which the stock is traded)
following the Agent's receipt of the notice of termination.
15. NOTICES.
(a) Each Participant shall notify the Agent promptly in writing of
any change of his or her address.
(b) Notices or statements from the Agent to a Participant may be
given by letter addressed to the Participant at his or her last address of
record with the Agent.
(c) Any such notice or statement shall be deemed to have been given
when received by the Participant or three (3) days after mailing, whichever
occurs first.
16. CONTROL OF ACCOUNT.
(a) Participants may not assign or alienate the interests in their
Accounts.
(b) The Agent has no obligation to follow any instructions of a
Participant with respect to his or her interest in an Account, except as
expressly provided under the Plan.
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<PAGE>
17. INDEPENDENT OF AGENT.
(a) All purchases of Common Stock pursuant to the Plan will be made
by the Agent as the independent agent of the Participants.
(b) Neither the Company nor any of its affiliates shall have any
authority or power to direct:
(i) The timing and price at which Common Stock is to be
purchased pursuant to the Plan;
(ii) The amount of Common Stock to be purchased; or
(iii) The selection of any broker or dealer through whom purchases
are to be made.
(c) The Agent will continue to operate the Plan only so long as
neither the Agent nor any of its affiliates directly or indirectly
controls, is controlled by, or is under common control with the Company
or its affiliates.
(d) The Agent and the Company agree that, in the event any person
serves simultaneously as a director of the Agent and of the Company (or of
any of their affiliates), that director will abstain from participating in
any decisions relating to the Plan or the purchase or sale of Plan Shares.
18. NO RECOMMENDATION. Participation in the Plan is entirely voluntary.
Furthermore, the Company makes no representations regarding investments in
Common Stock.
19. TAXES. Participants shall assist the Agent and the Company in
complying with all applicable tax withholding rules, including the income and
employment taxes imposed on Company contributions to the Plan.
20. AMENDMENT OR TERMINATION OF THE PLAN.
(a) The Company may amend or terminate the Plan at any time.
(b) The Agent reserves the right to change the terms and
conditions of this Plan, subject to prior notification to the
Company and each Participant.
(c) Except as otherwise directed by the Company, the Plan will
terminate upon the resignation or termination of the Agent.
21. GOVERNING LAW. The Plan shall be governed by an construed in
accordance with the laws of the State of New York.
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INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference into this Registration Statement
on Form S-8 of Mercury Air Group, Inc. of our report dated September 15,
1995 appearing in the Annual Report on Form 10-K of Mercury Air Group, Inc.
for the year ended June 30, 1995.
Deloitte & Touche LLP
Los Angeles, California
March 13, 1996
