As filed with the Securities and Exchange Commission on December 2, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TOWER AIR, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 11-2621046
(State or Other Jurisdiction of (IRS Employer Identification No.)
Incorporation or Organization)
HANGAR NO. 17
JOHN F. KENNEDY INTERNATIONAL AIRPORT
JAMAICA, NEW YORK 11430
(Address of Principal Executive Offices, Including Zip Code)
TOWER AIR 1993 LONG-TERM INCENTIVE PLAN
(Full Title of the Plan)
MORRIS K. NACHTOMI
TOWER AIR, INC.
HANGAR NO. 17
JOHN F. KENNEDY INTERNATIONAL AIRPORT
JAMAICA, NEW YORK 11430
(718) 553-4300
(Name, Address and Telephone Number, Including Area Code,
of Agent For Service)
Copies to: PHYLLIS G. KORFF, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
(212) 735-3000
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===========================================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF SECURITIES TO AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
BE REGISTERED(1) REGISTERED(2) PER SHARE OFFERING PRICE REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1. Common Stock, par value $.01 per share 30,000 $13.875(3) $416,250 $122.79
2. " " 15,000 8.50(3) 127,500 37.61
3. " " 70,221 8.25(3) 579,323 170.90
4. " " 15,000 7.50(3) 112,500 33.19
5. " " 232,532 6.75(3) 1,569,591 463.03
6. " " 15,000 6.125(3) 91,875 27.10
7. " " 75,000 4.625(3) 346,875 102.33
8. " " 604,063 2.6875(3) 478.91
1,623,419
9. " " 25,000 3.50(3) 87,500 25.81
10. " " 318,184 $ 4.625(4)
1,471,601(4) 434.12(4)
Total: 1,400,000 $6,426,434 $1,895.79
===========================================================================================================================
</TABLE>
(1) The Common Stock being registered relates to (i) past option grants,
with option exercise prices as indicated, and (ii) option grants to
be undertaken in the future, with option exercise prices to be
determined.
(2) This Registration Statement also covers such indeterminable number of
additional shares of Common Stock as may be issuable from time to
time pursuant to the antidilution provisions of the plan described
herein.
(3) In accordance with Rule 457(h)(1) under the Securities Act of 1933,
as amended (the "Securities Act"), the option exercise price.
(4) The registration fee has been calculated pursuant to Rule 457(c) and
(h) under the Securities Act on the basis of the average of the high
and low prices of the Registrant's Common Stock as reported on The
Nasdaq National Market on December 1, 1997, a date within five
business days prior to the date of filing of this Registration
Statement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION
Not required to be filed with this Registration Statement.
The information called for in Part I of Form S-8 is included in a
prospectus, dated December 2, 1997, which is to be distributed to
participants in the Tower Air 1993 Long-Term Incentive Plan.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Not required to be filed with this Registration Statement.
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 (the "Commission") are incorporated by reference into
this Registration Statement:
(a) Annual Report on Form 10-K (File No. 0-22526) of
Tower Air, Inc. (the "Corporation" or the
"Registrant") for the fiscal year ended December
31, 1996.
(b) Quarterly Reports on Form 10-Q (File No. 0-22526)
of the Corporation for the quarterly periods ended
March 31, 1997, June 30, 1997 and September 30,
1997.
(c) Form 8-A (File No. 0-22526) of the Corporation
dated September 30, 1993, which incorporates by
reference the title and description of the
Corporation's Common Stock, par value $.01 per
share (the "Common Stock"), which is contained
under the caption "Description of Capital Stock"
in the Registration Statement of the Corporation
on Form S-1 (File No. 33-69148), declared
effective by the Commission on November 15, 1993,
relating to the initial public offering of the
Common Stock of the Corporation.
All documents hereafter filed by the Corporation pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934
(the "Exchange Act"), prior to the filing of a post-effective amendment to
this Registration Statement which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference into this Registration
Statement from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement contained
herein or in any subsequently filed document which also is or is deemed to
be incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as
so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters with respect to the offering of the
shares of Common Stock registered hereby will be passed upon for the
Corporation by Skadden, Arps, Slate, Meagher & Flom LLP, 919 Third Avenue,
New York, New York 10022. Henry P. Baer, of counsel to Skadden, Arps,
Slate, Meagher & Flom LLP, is a director and stockholder of the Corporation
and has been granted options pursuant to the Tower Air 1993 Long-Term
Incentive Plan.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of
Delaware (the "DGCL") empowers a Delaware corporation to indemnify any
persons who are, or are threatened to be made, parties to any threatened,
pending or completed legal action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in
the right of such corporation), by reason of the fact that such person is
or was an officer, director, employee or agent of such corporation, or is
or was serving at the request of such corporation as a director, officer,
employee or agent of another corporation or enterprise. The indemnity may
include expenses (including attorney's fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided that such
officer, director, employee or agent acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the corporation's best
interests, and, for criminal proceedings, had no reasonable cause to
believe his conduct was illegal. A Delaware corporation also may indemnify
its directors or officers against expenses (including attorney's fees)
actually and reasonably incurred by such directors or officers in the
defense or settlement of any threatened, pending or completed action or
suit by or in the right of the corporation, subject to the conditions
above, except that no indemnification is permitted without judicial
approval if the officer, director, employee or agent is adjudged to be
liable to the corporation in the performance of his duty. Where an officer,
director or employee successfully defends any action referred to above, on
the merits or otherwise, the corporation must indemnify him against the
expenses which he actually and reasonably incurred. Section 145 of the DGCL
also permits a corporation to purchase directors' and officers' liability
insurance. Such indemnification referred to above is not exclusive of any
other rights to which those indemnified may be entitled under any by-law,
agreement, vote of stockholders or otherwise.
Article VIII of the By-laws of the Corporation ("Article
VIII") provides for indemnification by the Corporation of its directors and
officers to the extent permitted by the DGCL, subject to authorization by
the Corporation. Article VIII, Section 3, provides that such authorization
shall be made (i) by the Board of Directors of the Corporation by a
majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not
obtainable, or if a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or (iii) by the
stockholders. Article VIII, Section 5, provides that, notwithstanding a
determination that such director or officer is not entitled to
indemnification by a majority vote of a quorum of the Corporation's
disinterested members of the Board of Directors, by a written opinion to
such effect by independent legal counsel, or by the shareholders, such
director or officer may apply to any court of competent jurisdiction in the
State of Delaware for indemnification to the extent otherwise
permissible. The Corporation's power to indemnify its directors and
officers under Article VIII includes the ability of the Corporation to pay
such expenses (including attorney's fees) incurred by a director or officer
in advance, upon receipt of an undertaking by or on behalf of such director
or officer to repay such amount if it is ultimately determined that he is
not entitled to indemnification by the Corporation, and the ability of the
Corporation to purchase insurance on behalf of any director or officer
against any liability asserted against him and incurred by him in any such
capacity, whether or not the Corporation would have the power or obligation
to indemnify him under Article VIII. Article VIII also provides that the
Corporation is not obligated to indemnify a director or officer in
connection with a proceeding that was initiated by such director or
officer, unless such proceeding was authorized by its Board of Directors.
The Restated Certificate of Incorporation of the Registrant,
a copy of which is incorporated by reference as an exhibit to this
Registration Statement (the "Certificate of Incorporation"), provides that
no director of the Registrant shall be personably liable to the Registrant
or its stockholders for monetary damages for breach of fiduciary duty as a
director; provided, however, that such clause shall not apply to any
liability of a director (1) for any breach of the director's duty of
loyalty to the Registrant or its stockholders, (2) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law, (3) under Section 174 of the DGCL (relating to the
unlawful payment of dividends or unlawful approval of stock repurchases or
redemptions), (4) for any transaction from which the director derived an
improper personal benefit, or (5) for any act or omission occurring prior
to the effective date of such Certificate of Incorporation. In addition,
the Certificate of Incorporation authorizes the Registrant to indemnify any
person entitled to be indemnified to the fullest extent permitted by
applicable law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
4.1 Restated Certificate of Incorporation of the
Corporation (incorporated by reference to Exhibit 3.7
of Amendment No. 2 to the Corporation's Registration
Statement on Form S-1 dated November 12, 1993 (File
No. 33-69148)).
4.2 By-Laws of the Corporation (incorporated by reference
to Exhibit 3.8 of Amendment No. 2 to the
Corporation's Registration Statement on Form S-1
dated November 12, 1993 (File No. 33-69148)).
5 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
10.1 Tower Air 1993 Long-Term Incentive Plan (incorporated
by reference to Exhibit 10.2 of Amendment No. 2 to
the Corporation's Registration Statement on Form S-1
dated November 12, 1993 (File No. 33-69148)).
24.1 Consent of Ernst & Young, LLP, Independent Auditors.
24.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(contained in Exhibit 5 to this Registration Statement).
24.3 Power of Attorney (included on pages 6 and 7 of this
Registration Statement).
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 this Registration
Statement (or the most recent
post-effective amendment hereto)
which, individually or in the
aggregate, represent a fundamental
change in the information set forth
in the Registration Statement;
(iii) to include any material information
with respect to the plan of
distribution not previously
disclosed in this 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, Form S-8 or Form F-3,
and the information required to be included in a
post-effective amendment by those paragraphs is
contained in periodic reports filed with or
furnished to the Securities and Exchange
Commission by the Registrant pursuant to Section
13 or 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
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
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) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions,
or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is 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 of 1933 and will be governed by the final adjudication of
such issue.
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 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 New York, State
of New York, on this second day of December, 1997.
TOWER AIR, INC.
By: /s/ Morris K. Nachtomi
______________________________
Name: Morris K. Nachtomi
Title: President, Chief
Executive Officer
and Chairman of the
Board of Directors
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each officer or
director of Tower Air, Inc. whose signature appears below constitutes and
appoints Morris K. Nachtomi, Stephen L. Gelband and Henry P. Baer, and each
of them, with full power to act without the other, his true and lawful
attorneys-in-fact and agents, with full and several power of substitution,
for him and in his name, place and stead, in any and all capacities, to
sign any and all amendments (including post-effective amendments), and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto each
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 and 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 or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
as amended, this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
Signature Title Date
/s/ Morris K. Nachtomi President, Chief December 2, 1997
- ----------------------- Executive Officer and
Morris K. Nachtomi Chairman of the Board
of Directors (Principal
Executive Officer)
/s/ Ramesh Punwani Vice President-Finance and December 2, 1997
- ------------------- Chief Financial Officer
Ramesh Punwani (Principal Financial
and Accounting Officer)
/s/ Stephen L. Gelband Director and Secretary December 2, 1997
- -----------------------
Stephen L. Gelband
/s/ Stephen A. Osborn Director December 2, 1997
- ----------------------
Stephen A. Osborn
/s/ Henry P. Baer Director December 2, 1997
- ------------------
Henry P. Baer
/s/ Leo-Arthur Kelmenson Director December 2, 1997
- -------------------------
Leo-Arthur Kelmenson
INDEX TO EXHIBITS
Exhibit
Number Description Page No.
4.1 Restated Certificate of Incorporation of the
Corporation (incorporated by reference to
Exhibit 3.7 of the Corporations's Amendment
No. 2 to the Registration Statement on Form S-1
dated November 12, 1993 (File No. 33-69148)).
4.2 By-Laws of the Corporation (incorporated by
reference to Exhibit 3.8 of the Corporation's
Amendment No. 2 to the Registration Statement
on Form S-1 dated November 12, 1993 (File
No. 33-69148)).
5 Opinion of Skadden, Arps, Slate, Meagher &
Flom LLP. 9
10.1 Tower Air 1993 Long-Term Incentive Plan
(incorporated by reference to Exhibit 10.2 of
Amendment No. 2 to the Corporation's
Registration Statement on Form S-1 dated
November 12, 1993 (File No. 33-69148)).
24.1 Consent of Ernst & Young LLP, Independent Auditors. 11
24.2 Consent of Skadden, Arps, Slate, Meagher &
Flom LLP (contained in Exhibit 5 to this Regis-
tration Statement).
24.3 Power of Attorney (included on pages 6 and 7 of
this Registration Statement).
Exhibit 5
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
December 2, 1997
Tower Air, Inc.
Hangar 17
John F. Kennedy International Airport
Jamaica, New York 11430
Ladies and Gentlemen:
We have acted as special counsel to Tower Air, Inc., a
Delaware corporation (the "Company" or "Tower Air"), in connection with the
preparation of a registration statement on Form S-8, which is being filed
by the Company with the Securities and Exchange Commission (the
"Commission") on the date hereof (the "Registration Statement"), relating
to an aggregate of 1,400,000 shares of common stock, par value $.01 per
share, of the Company (the "Common Stock"), issuable pursuant to the Tower
Air 1993 Long-Term Incentive Plan (the "Plan"), consisting of 1,200,000
shares of Common Stock (the "Shares") and 200,000 additional shares of
Common Stock, the issuance of which is subject to approval by the
shareholders of the Company (the "Additional Shares").
This opinion is delivered in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Securities Act
of 1933, as amended (the "Act").
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of (i) the Registration Statement, (ii) the
Plan, (iii) the Company's Restated Certificate of Incorporation as in
effect on the date hereof, (iv) the Company's By-laws as in effect on the
date hereof, (v) certain resolutions of the Board of Directors of the
Company relating to, among other things, the Shares, the Additional Shares,
the Plan and the Registration Statement, (vi) certain resolutions of the
stockholders of the Company relating to the Plan, (vii) a specimen
certificate evidencing the Common Stock, and (viii) such other documents as
we have deemed necessary or appropriate as a basis for the opinions set
forth below.
In our examination, we have assumed the legal capacity of
all natural persons, the genuineness of all signatures, the authenticity of
all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified, conformed or
photostatic copies and the authenticity of the originals of such latter
documents. In making our examination of documents executed by parties other
than the Company, we have assumed that such parties had the power,
corporate or other, to enter into and perform all obligations thereunder
and have also assumed the due authorization by all requisite action,
corporate or other, and execution and delivery by such parties of such
documents and the validity and binding effect thereof. As to any facts
material to the opinions expressed herein which we did not independently
establish or verify, we have relied upon statements or representations of
officers and other representatives of the Company and others. In rendering
the opinion set forth below, we have assumed that the certificates
representing the Shares and the Additional Shares will be manually signed
by one of the authorized officers of the transfer agent and registrar for
the Common Stock and registered by such transfer agent and registrar and
will conform to the specimen thereof examined by us.
Henry P. Baer, of counsel to this Firm, is a director of the
Company, owns jointly with his wife 5,000 shares of the Common Stock of the
Company and has been granted options to purchase 30,000 Shares of Common
Stock under the Plan.
Members of our Firm are admitted to the Bar of the State of
New York, and we do not express any opinion as to the laws of any other
jurisdiction other than the Delaware General Corporation Law. The Shares
and the Additional Shares may be offered from time to time on a delayed or
continuous basis, and this opinion is limited to the laws specified above
as in effect on the date hereof.
Based upon and subject to the foregoing, we are of the
opinion that the Shares have been duly and validly authorized for issuance
and, when delivered and paid for upon exercise of options granted in
accordance with the terms of the Plan, will be validly issued, fully paid
and nonassessable, and that the Additional Shares, when duly and validly
authorized for issuance and, when delivered and paid for upon exercise of
options granted in accordance with the terms of the Plan, will be validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5
to the Registration Statement. In giving such consent, we do not thereby
admit that we are in the category of persons whose consent is required
under Section 7 of the Act or the rules and regulations of the Commission
thereunder.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
Exhibit 24.1
Consent of Independent Auditors
The Board of Directors
Tower Air, Inc.:
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Tower Air 1993 Long-Term Incentive Plan of our
report dated February 17, 1997, except for the last paragraph of Note 2, as
to which the date is March 13, 1997, with respect to the financial
statements and schedule of Tower Air, Inc. included in its Annual Report
(Form 10-K) for the year ended December 31, 1996, filed with the Securities
and Exchange Commission.
/s/ Ernst & Young, LLP
Melville, New York
December 1, 1997
