As filed with the Securities and Exchange Commission on October 15, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INCORPORATED COMAIR HOLDINGS, INC. I.R.S. EMPLOYER
UNDER THE LAWS CINCINNATI/NORTHERN KENTUCKY IDENTIFICATION NO.
OF KENTUCKY INTERNATIONAL AIRPORT 31-1243613
P.O. BOX 75021
CINCINNATI, OHIO 45275
(606) 767-2550
1998 COMAIR HOLDINGS, INC. STOCK OPTION PLAN
GARY P. KREIDER, ESQ.
KEATING, MUETHING & KLEKAMP, P.L.L.
ONE EAST FOURTH STREET
CINCINNATI, OHIO 45202
PHONE: (513) 579-6411
FACSIMILE (513) 579-6956
-------------------------------------------
(Agent for Service of Process)
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF AMOUNT OFFERING AGGREGATE AMOUNT OF
SECURITIES TO BE PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE(1) PRICE(1) FEE(2)
- --------------------------------------------------------------------------------
Common Stock, 3,500,000
No par value Shares $21-5/8 $75,687,500 $22,328
- --------------------------------------------------------------------------------
(1) Estimated to calculate registration fee.
(2) Calculated pursuant to Rule 457(h) based on the average of the high and
low prices of the Common Stock on the Nasdaq National Market on October
9, 1998 of $21-5/8 per share.
<PAGE>
- 2 -
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Comair Holdings, Inc. with the Securities
and Exchange Commission are incorporated herein by reference and made a part
hereof:
1. Annual Report on Form 10-K for the year ended March 31, 1998.
2. Quarterly Report on Form 10-Q, as amended, for the quarter ended June
30, 1998.
3. The description of Common Stock contained in a Form 8-A filed by the
Company with the Commission on September 14, 1981.
All reports and other documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, prior to the filing of a post-effective amendment which indicates that
all Common Stock offered has been sold or which deregisters all Common Stock
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing such
documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Common Stock offered hereby will be passed upon for the
Registrant by Keating, Muething & Klekamp, P.L.L., 1800 Provident Tower, One
East Fourth Street, Cincinnati, Ohio 45202. Richard D. Siegel, the Company's
Secretary, is a partner of Keating, Muething & Klekamp, P.L.L. Attorneys of
Keating, Muething & Klekamp own approximately 119,743 shares of the Registrant's
Common Stock.
<PAGE>
- 3 -
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 271B.8-500 et seq. of the Kentucky 1988 Business Corporation Act
(the "Act") allows indemnification by the Registrant of any individual made or
threatened to be made a party to any proceeding, except a proceeding by or in
the right of the Registrant, by reason of the fact that he is or was a director,
officer, employee or agent of the Registrant, against liability incurred,
including judgements and fines, if he acted in good faith and in a manner
reasonably believed to be (i) in the case of conduct in his official capacity
with the Registrant, in the best interests of the Registrant and (ii) in all
other cases, at least not opposed to the best interests of the Registrant, and
with respect to criminal actions, no reasonable cause to believe that his
conduct was unlawful. Indemnification is not permitted in a proceeding in which
the individual is adjudged liable on the basis that personal benefit was
improperly received. Similar provisions apply to actions brought by or in the
right of the Registrant, except that no indemnification shall be made in a
proceeding in which the individual shall have been adjudged liable to the
Registrant, unless a court determines that in light of all the circumstances,
such person is entitled to indemnification. Indemnification permitted in
connection with a proceeding by or in the right of the Registrant is limited to
reasonable expenses incurred in connection with the proceeding. Permissive
indemnification is to be made by a court of competent jurisdiction, the majority
vote of a quorum of disinterested directors, the written opinion of independent
counsel or by the shareholders. The right to indemnification is mandatory in the
case of a director or officer who is wholly successful, on the merits or
otherwise, in the defense of any proceeding to which he was a party because he
is or was an officer or director of the Registrant. Mandatory indemnification
may be made by a court of competent jurisdiction.
Article V of the Registrant's By-Laws provides that the Registrant shall,
to the fullest extent permitted by the Act, indemnify officers and directors
against all costs and expenses, including judgments and fines, reasonably
incurred in connection with a defense of any claim asserted or suit or
proceeding brought against such person by reason of conduct or actions as a
director or officer. The Registrant may provide indemnification for any other
person the Registrant has the power to indemnify under the Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
Exhibit 4 1998 Comair Holdings, Inc. Stock Option Plan
Exhibit 5 Opinion of Keating, Muething & Klekamp, P.L.L.
Exhibit 23.1 Consent of Arthur Andersen LLP
<PAGE>
- 4 -
Exhibit 23.2 Consent of Keating, Muething & Klekamp, P.L.L. (included in
Exhibit 5)
Exhibit 24 Power of Attorney (contained on the signature page)
ITEM 9. UNDERTAKINGS
9.1 The Registrant hereby undertakes 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;
provided, however, that paragraphs (1) and (2) do not apply if 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 Commission 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.
9.2 The undersigned Registrant hereby undertakes 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.
9.3 The undersigned Registrant hereby undertakes 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.
<PAGE>
- 5 -
9.4 The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
9.5 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 Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit, or proceeding) is asserted by
such director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
<PAGE>
- 6 -
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Cincinnati, Ohio, on October 15, 1998
COMAIR HOLDINGS, INC.
By:/s/ David R. Mueller
--------------------------
David R. Mueller
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Persons whose names are marked with an
asterisk (*) below hereby designate David R. Mueller or David A. Siebenburgen as
their attorney-in-fact to sign all amendments, including any post-effective
amend ments, to this Registration Statement.
Signature Capacity Date
--------- -------- ----
*/s/ David R. Mueller
- --------------------------- Chairman of the Board, Chief October 15, 1998
David R. Mueller Chief Executive Officer
and Director
*/s/ David A. Siebenburgen
- ---------------------------- President, Chief Operating October 15, 1998
David A. Siebenburgen Officer and Director
*/s/ Randy D. Rademacher
- ---------------------------- Sr. Vice President Finance October 15, 1998
Randy D. Rademacher Chief Financial Officer
(Chief Accounting Officer)
*/s/ Gerald L. Wolken
- ---------------------------- Director October 15, 1998
Gerald L. Wolken
*/s/ Robert H. Castellini
- ---------------------------- Director October 15, 1998
Robert H. Castellini
*/s/ John A. Haas
- ---------------------------- Director October 15, 1998
John A. Haas
EXHIBIT 4
1998 COMAIR HOLDINGS, INC. STOCK OPTION PLAN
ARTICLE 1.
OBJECTIVES
Comair Holdings, Inc. (hereinafter "Comair") established this Stock Option
Plan effective August 11, 1998, as an incentive to attract and retain dedicated
and loyal employees of outstanding ability, to stimulate the efforts of such
persons in meeting the Company's objectives and to encourage ownership of its
Common Stock by employees.
ARTICLE 2.
DEFINITIONS
2.1 For purposes of the Plan, the following terms shall have the definition
which is attributed to them, unless another definition is clearly indicated by a
particular usage and context.
2.1.1 "Code" means the Internal Revenue Code of 1986.
2.1.2 "Comair" means Comair Holdings, Inc. and any subsidiary of
Comair Holdings, Inc. as the term "subsidiary" is defined in Section 424(f)
of the Code.
2.1.3 "Committee" means the Compensation Committee as designated by
the Board of Directors and further defined in Article 3.1.
2.1.4 "Date of Exercise" means the date on which Comair has received
a written notice of exercise of an Option, in such form as is acceptable to
the Committee, and full payment of the purchase price or a copy of
irrevocable directions to a broker-dealer to deliver the Option Price to
Comair pursuant to Section 7.2 hereof.
2.1.5 "Date of Grant" means the date on which the Committee makes
an award of an Option.
2.1.6 "Eligible Employee" means any individual who performs services
for Comair and any subsidiary of Comair and is treated as an Employee for
federal income tax purposes.
2.1.7 "Effective Date" means August 11, 1998.
2.1.8 "Fair Market Value" means the last sale price immediately prior
to the date of grant as reported on any stock exchange.
<PAGE>
- 2 -
2.1.9 "Incentive Stock Option" shall have the same meaning as given
to that term by Section 422 of the Code.
2.1.10 "Nonqualified Stock Option" means any Option granted under the
Plan which is not considered an Incentive Stock Option.
2.1.11 "Option" means the right to purchase a stated number of Shares
at a specified price. The option may be granted to an Eligible Employee
subject to the terms of this Plan, and such other conditions and
restrictions as the Committee deems appropriate. Each Option shall be
designated by the Committee to be either an Incentive Stock Option or a
Nonqualified Stock Option.
2.1.12 "Option Price" means the purchase price per Share subject to an
Option and shall be fixed by the Committee, but shall not be less than 100%
of the Fair Market Value of a Share on the Date of Grant.
2.1.13 "Permanent and Total Disability": shall mean any medically
determinable physical or mental impairment rendering an individual unable
to engage in any substantial gainful activity, which disability can be
expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months.
2.1.14 "Plan" means this 1998 Stock Option plan as it may be amended.
2.1.15 "Share" means one share of the Common Stock of Comair Holdings,
Inc.
ARTICLE 3.
ADMINISTRATION
3.1 The Plan shall be administered by the Compensation Committee designated
by the Board of Directors of Comair unless otherwise designated by the Board of
Directors of Comair. The Committee shall be comprised of three or more directors
each of whom shall be (i) a "Non-Employee Director" as defined in Rule 16b-3 of
the Securities and Exchange Act of 1934 (the "Act") and (ii) an "outside
director" to the extent required by Section 162(m) of the Code ("Section
162(m)"), as such Rule and Section may be amended, superseded or interpreted
hereafter.
3.2 Except as specifically limited by the provisions of the Plan, the
Committee in its discretion shall have the authority to:
3.2.1 Grant Options on such terms and conditions consistent with this
Plan as the Committee shall determine;
3.2.2 Interpret the provisions of the Plan and decide all questions of
fact arising in its application, and
<PAGE>
- 3 -
3.2.3 Prescribe such rules and procedures for Plan administration as
from time to time it may deem advisable.
3.3 Any action, decision, interpretation or determination by the Committee
with respect to the application or administration of this Plan shall be final
and binding upon all persons, and need not be uniform with respect to its
determination of recipients, amount, timing, form, terms or provisions.
3.4 No member of the Committee shall be liable for any action or
determination taken or made in good faith with respect to the Plan and to the
extent permitted by law, all members shall be indemnified by Comair for any
liability and expenses which may occur from any claim or cause of action.
ARTICLE 4.
SHARES SUBJECT TO PLAN
4.1 The number of Shares that may be issued under the Plan is 3,500,000.
Except as provided in Section 4.2, upon lapse or termination of any Option for
any reason without being completely exercised, the Shares which were subject to
such Option may again be subject to other Options.
4.2 The maximum number of Shares with respect to which options may be
granted to any employee during each fiscal year of Comair is 200,000. If an
Option is canceled, it continues to be counted against the maximum number of
Shares for which Options may be granted to an employee.
ARTICLE 5.
GRANTING OF OPTIONS
The Committee may, from time to time, prior to August 11, 2008, grant
Options to Eligible Employees on such terms and conditions as the Committee may
determine. More than one Option may be granted to the same Eligible Employee.
ARTICLE 6.
TERMS OF OPTIONS
6.1 Subject to specific provisions relating to Incentive Stock Options set
forth in Article 9, each Option shall be for a term of from one to ten years
<PAGE>
- 4 -
from the Date of Grant and may not be exercised during the first twelve months
of the term of said Option. Commencing on the first anniversary of the Date of
Grant of an Option, the Option may be exercised for 25% of the total Shares
covered by the Option with an additional 25% of the total Shares covered by the
Option becoming exercisable on each succeeding anniversary until the Option is
exercisable to its full extent. This right of exercise shall be cumulative and
shall be exercisable in whole or in part. The Committee may establish a
different exercise schedule and impose other conditions upon exercise for any
particular Option or groups of Options. The Committee in its sole discretion may
permit particular holders of Options to exercise an Option to a greater extent
than provided in such Option.
6.2 If the grantee of an Option dies or becomes subject to a Permanent and
Total Disability while employed by Comair all Options granted to such person
shall become fully vested and immediately exercisable as of the date of
termination of employment.
6.3 In the event of the dissolution or liquidation of Comair or any merger,
other than a merger for the purpose of the redomestication of Comair not
involving a change in control, consolidation, exchange or other transaction in
which Comair is not the surviving corporation or in which the outstanding Shares
of Comair are converted into cash, other securities or other property, each
outstanding Option shall terminate as of a date fixed by the Committee provided
that not less than twenty days' (20) written notice of the date of expiration
shall be given to each holder of an Option and each such holder shall have the
right during such period following notice to exercise the Option as to all or
any part of the Shares for which it is exercisable at the time of such notice.
6.4 All outstanding Options shall become fully vested and immediately
exercisable in full if a change in control of Comair occurs. For purposes of
this Agreement, a "change in control of Comair", shall be deemed to have
occurred if (a) any "person", as such term is used in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934, other than (i) a trustee or other
fiduciary holding securities under an employee benefit plan of Comair or any
member of either person's family, becomes the "beneficial owner," as defined in
Rule 13d-3 under such Act, directly or indirectly, of securities of Comair
representing 30% or more of the combined voting power of Comair's then
outstanding securities; or (b) during any period of one year after January 1,
1998, individuals who at the beginning of such period constitute the Board of
Directors and any new director whose election by the Board or nomination for
election by Comair's shareholders was approved by a vote of at least two-thirds
(2/3) of the Directors then still in office who either were Directors at the
beginning of the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a majority thereof.
However, prior to the time a "change of control of Comair" occurs the Committee
may elect that the acceleration of vesting shall not occur.
6.5 Nothing contained in this Plan or in any Option granted pursuant to it
shall confer upon any employee any right to continue in the employ of Comair or
to interfere in any way with the right of Comair to terminate employment at any
time. So long as a holder of an Option shall continue to be an employee of
Comair, the Option shall not be affected by any change of the employee's duties
or position.
<PAGE>
- 5 -
ARTICLE 7.
EXERCISE OF OPTIONS
7.1 Any person entitled to exercise an Option in whole or in part, may do
so by delivering a written notice of exercise to Comair, Attention Chief
Financial Officer, at its principal office. The written notice shall specify the
number of Shares for which an Option is being exercised and the grant date of
the option being exercised and shall be accompanied by full payment of the
Option Price for the Shares being purchased and any withholding taxes.
7.2 An Option may also be exercised by delivering a written notice of
exercise to Comair, Attention Chief Financial Officer, accompanied by
irrevocable instructions to deliver shares to a broker-dealer and a copy of
irrevocable instructions to the broker-dealer to deliver the Option Price and
any withholding taxes to Comair.
ARTICLE 8.
PAYMENT OF OPTION PRICE
8.1 In the sole discretion of the Committee, Payment of the Option Price
and any withholding taxes may be made in cash, by the tender of Shares which
have been owned for six months, or both. Shares tendered shall be valued at
their Fair Market Value.
8.2 Payment through tender of Shares may be made by instruction from the
Optionee to Comair to withhold from the Shares issuable upon exercise that
number which have a Fair Market Value equal to the exercise price for the Option
or portion thereof being exercised and any withholding taxes.
ARTICLE 9.
INCENTIVE STOCK OPTIONS AND NONQUALIFIED STOCK OPTIONS
9.1 The Committee in its discretion may designate whether an Option is to
be an Incentive Stock Option or a Nonqualified Stock Option. The Committee may
grant both an Incentive Stock Option and a Nonqualified Stock Option to the same
individual. However, where both an Incentive Stock Option and a Nonqualified
Stock Option are awarded at one time, such Options shall be deemed to have been
awarded in separate grants, shall be clearly identified, and in no event will
the exercise of one such Option affect the right to exercise the other such
Option.
9.2 Any option designated by the Committee as an Incentive Stock Option
will be subject to the general provisions applicable to all Options granted
under the Plan plus the following specific provisions:
<PAGE>
- 6 -
9.2.1 At the time the Incentive Stock Option is granted, if the
Eligible Employee owns, directly or indirectly, stock representing more
than 10% of (i) the total combined voting power of all classes of stock of
Comair, or (ii) a corporation that owns 50% or more of the total combined
voting power of all classes of stock of Comair, then;
9.2.1.1 The Option Price must equal at least 110% of the Fair
Market Value on the Date of Grant; and
9.2.1.2 The term of the Option shall not be greater than five
years from the Date of Grant.
9.2.2 The aggregate Fair Market Value of Shares (determined at the
Date of Grant) with respect to which Incentive Stock Options are
exercisable by an Eligible Employee for the first time during any calendar
year under this Plan or any other plan maintained by Comair shall not
exceed $100,000.
9.3 If any Option is not granted, exercised, or held pursuant to the
provisions noted immediately above, it will be considered to be a Nonqualified
Stock Option to the extent that the grant is in conflict with these
restrictions.
ARTICLE 10.
TRANSFERABILITY OF OPTION
During the lifetime of an Eligible Employee to whom an Option has been
granted, such Option is not transferable voluntarily or by operation of law and
may be exercised only by such individual. Upon the death of an Eligible Employee
to whom an Option has been granted, the Option may be transferred to the
beneficiaries of heirs of the holder of the Option by will or by the laws of
descent and distribution.
Notwithstanding the above, the Committee may, with respect to particular
Nonqualified Options, establish or modify the terms of the Option to allow the
Option to be transferred at the request of the grantee of the Option to trusts
established by the grantee or as to which the grantee is a grantor or to family
members of the grantee or otherwise for personal and tax planning purposes of
the grantee. If the Committee allows such transfer, such Options shall not be
exercisable for a period of six months following the action of the Committee.
<PAGE>
- 7 -
ARTICLE 11.
TERMINATION OF OPTIONS
11.1 An Option will terminate as follows:
11.1.1 Upon exercise or expiration by its terms.
11.1.2 Immediately if employment is terminated for cause or by
voluntary action of the grantee without the consent of Comair. Cause is
defined as including, but not limited to, theft of or intentional damage to
Comair property, intentional harm to Comair's reputation, material breach
of the optionee's duty of fidelity to Comair, excessive use of alcohol, the
use of illegal drugs, the commission of a criminal act, willful violation
of Comair's policies, or trading in shares for personal gain based on
knowledge of Comair's activities or results when such information is not
available to the general public.
11.1.3 If the grantee of an Option violates any terms of any written
employment, confidentiality or noncompetition agreement between Comair and
that person, all existing Options granted to such person will terminate. In
addition, if at the time of such violation such person has exercised
Options but has not received certificates for the Shares to be issued,
Comair may void the Option and its exercise. Any such actions by Comair
shall be in addition to any other rights or remedies available to Comair in
such circumstances.
11.1.4 If the grantee of an Option dies or becomes subject to a
Permanent and Total Disability while employed by Comair, or within 60 days
after termination of employment for any reason other than cause, such
Option may be exercised at any time within one year after the date of
termination of employment. Options may be exercised by that person's estate
or guardian or by those persons to whom the Option may have been
transferred pursuant to Section 10.
11.1.5 In all other cases, upon termination of employment, the
then-exercisable portion of any Option will terminate on the 90th day after
the date of termination. The portion not exercisable will terminate on the
date of termination of employment. For purposes of the Plan, a leave of
absence approved by Comair shall not be deemed to be termination of
employment.
11.2 The Committee, in its discretion, may as to any particular outstanding
Nonqualified Stock Option or upon the grant of any Nonqualified Stock Option,
establish terms and conditions which are different from those otherwise
contained in this Article 11, by, without limitation, providing that upon
termination of employment for any designated reason, vesting may occur in whole
or in part at such time and that such Option may be exercised for any period
during the remaining term of the Option, not to exceed ten years from the Date
of Grant.
11.3 Except as provided in Article 12 hereof, in no event will the
continuation of the term of an Option beyond the date of termination of
employment allow the grantee, his beneficiaries heirs or assigns, to accrue
additional rights under the Plan, or to purchase more Shares through the
exercise of an Option than could have been purchased on the day that employment
was terminated. In addition, notwithstanding anything contained herein, no
option may be exercised in any event after the expiration of ten years from the
date of grant of such option.
<PAGE>
- 8 -
ARTICLE 12.
ADJUSTMENTS TO SHARES AND PRICE
12.1 In the event of changes in the outstanding Common Stock of Comair as a
result of stock dividends, stock splits, reclassifications, reorganizations,
redesignations, mergers, consolidations, recapitalizations, combinations or
exchanges of Shares, or other such changes, the number and class of Shares for
all purposes covered by the Plan and number and class of Shares and price per
Share for each outstanding Option covered by the Plan shall be appropriately
adjusted by the Committee.
12.2 The Committee shall make appropriate adjustments in the Option Price
to reflect any spin-off of assets, extraordinary dividends or other
distributions to shareholders.
ARTICLE 13.
AGREEMENTS
13.1 All Options granted under the Plan shall be evidenced by a written
agreement in such form or forms as the Committee in its sole discretion may
determine.
13.2 By acceptance of an Option under this Plan, the recipient shall be
deemed to have consented to be bound, on the recipient's own behalf and on
behalf of the recipient's heirs, assigns and legal representatives, by all terms
and conditions of this Plan.
ARTICLE 14.
AMENDMENT OR TERMINATION OF PLAN
14.1 The Board of Directors of Comair may at any time amend, suspend, or
terminate the Plan; provided, however, that no amendments by the Board of
Directors of Comair shall, without further approval of the shareholders of
Comair;
14.1.1 Change the definition of Eligible Employees;
14.1.2 Except as provided in Artless 4 and 12 hereof, increase the
number of Shares which may be subject to the Plan, or increase the maximum
number of Shares with respect to which Options may be granted to any
eligible Employee of Comair during any fiscal year;
14.1.3 Cause the Plan or any Option granted under the Plan to fail to
meet the conditions for exclusion of application of the $1 million
deduction limitation imposed by Section 162(m) of the Code; or
<PAGE>
- 9 -
14.1.4 Cause any Option granted as an Incentive Stock Option to fail
to qualify as an "Incentive Stock Option" as defined by Section 422 of the
Code.
14.2 No amendment or termination of the plan shall alter or impair any
Option granted under the Plan without the consent of the holder thereof.
14.3 This Plan shall continue in effect until the expiration of all Options
granted under the Plan unless terminated earlier in accordance with this Article
14; provided, however, that it shall otherwise terminate and no Options shall be
granted ten years after the Effective Date.
ARTICLE 15.
EFFECTIVE DATE
This Plan shall become effective as of August 11, 1998, having been adopted
by the Board of Directors of Comair on May 19, 1998 and subject to approval by
shareholders by August 11, 1998.
ARTICLE 16.
MISCELLANEOUS
16.1 Nothing contained in this Plan or in any action taken by the Board of
Directors or shareholders of Comair shall constitute the granting of an Option.
An Option shall be granted only at such time as a written option shall have been
executed and delivered to the respective employee and the employee shall have
executed an agreement in conformance with the provisions of the Plan.
16.2 Certificates for Shares purchased through exercise of Options will be
issued in regular course after exercise of the Option and payment therefor as
called for by the terms of the Option. No persons holding an Option or entitled
to exercise an Option granted under this Plan shall have any rights or
privileges of a shareholder of Comair with respect to any Shares issuable upon
exercise of such Option until certificates representing such Shares shall have
been issued and delivered. No Shares shall be issued and delivered upon exercise
unless and until Comair has complied with all applicable registration
requirements of the Securities Act of 1933 and any applicable state securities
laws and with any applicable listing requirements of any securities exchange on
which Comair securities may then be listed as well as any other requirements of
law.
EXHIBIT 5
OPINION OF KEATING, MUETHING & KLEKAMP, P.L.L.
FACSIMILE (513) 579-6956
October 13, 1998
Direct Dial: (513) 579-6411
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
This firm is general counsel to Comair Holdings, Inc. and as such, we are
familiar with the Company's Articles of Incorporation, By-laws and corporate
proceedings generally. We have reviewed the corporate records as to the
establishment of the 1998 Comair Holdings, Inc. Stock Option Plan providing for
the issuance of options to purchase shares of Common Stock to employees of the
Company and its subsidiaries. Based solely upon such examination, we are of the
opinion that:
1. The Company is a duly organized and validly existing corporation under
the laws of Kentucky; and
2. The Company has taken all necessary and required corporate actions in
connection with the proposed issuance of options to purchase 3,500,000 shares of
Common Stock pursuant to the above-referenced Plan, and such Common Stock, when
issued and delivered, will be validly issued, fully paid and non-assessable
shares of Common Stock of the Company free of any claim of pre-emptive rights.
We hereby consent to be named in the Registration Statement and the
Prospectus part thereof as the attorneys who have passed upon legal matters in
connection with the issuance of the aforesaid Common Stock and to the filing of
this opinion as an exhibit to the Registration Statement.
Yours truly,
KEATING, MUETHING & KLEKAMP, P.L.L.
BY: /s/ Gary P. Kreider
--------------------------------
Gary P. Kreider
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our reports dated
May 15, 1998 included or incorporated by reference in Comair Holdings, Inc. and
subsidiaries Form 10-K for the year ended March 31, 1998 and to all references
to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Cincinnati, Ohio
October 15, 1998
