As filed with the Securities and Exchange Commission on September 28, 1998
Registration Number 333-________
- ------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
- ------------------------------------------------------------------------------
Form S-8
Registration Statement Under The Securities Act of 1933
CCAIR, INC.
(Exact name of registrant as specified in its charter)
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<S> <C>
DELAWARE 56-1428192
(State or other jurisdiction or incorporation or organization) (I.R.S. Employer Identification Number)
</TABLE>
P. O. Box 19929
Charlotte, North Carolina 28219-0929
(Address of principal executive offices)
- ------------------------------------------------------------------------------
CCAIR, INC. DIRECTORS' COMPENSATION STOCK OPTION PLAN
(Full title of the plan)
- ------------------------------------------------------------------------------
Kenneth W. Gann
President
CCAIR, INC.
P. O. Box 19929
Charlotte, North Carolina 28219-0929
(704) 359-8990
(Name, address and telephone number,
including area code, of agent for service)
Copy to:
W. Scott Cooper, Esquire
Rayburn, Moon & Smith, P. A.
The Carillon Bldg., Suite 1200
227 W. Trade Street
Charlotte, North Carolina 28202
Calculation of Registration Fee
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<S> <C>
======================================================================================================================
Proposed Maximum Proposed Maximum Amount of
Title of Securities to Offering Price Per Aggregate Offering Registration
be Registered Share to be Registered Share Price(1) Fee
- ----------------------------------------------------------------------------------------------------------------------
Common Stock 235,000 $3.84 $902,400 $266.21
======================================================================================================================
</TABLE>
(1) Estimated solely for the purposes of calculating the amount of the
registration fee pursuant to Rule 457(h) on the basis of the average of
the high and low prices for shares of the Registrant's Common Stock as
reported on the consolidating reporting system of the National Association
of Securities Dealers, Inc. on September 24, 1998.
Page 1 of ______ Pages
Exhibit Index on Page ______
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation by Reference.
The following are incorporated by reference into this Registration Statement:
1. The Registrant's Transition Report on Form 10-K for the transition period
from July 1, 1997 to December 31, 1997, File No. 0-17846, filed pursuant to
Section 13(a) of the Exchange Act;
2. The Registrant's Quarterly Report on Form 10-Q for the three-month period
ended June 30, 1998, File No. 0-17846, filed pursuant to Section 13(a) of the
Exchange Act;
3. All other reports filed by the Registrant pursuant to Section 13(a) and 15(d)
of the Exchange Act since December 31, 1997; and
4. The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A, File No. 0-17846, declared
effective on July 13, 1989 pursuant to Section 12 of the Exchange Act, including
any amendment or report filed for the purpose of updating such
description.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Under provisions of Delaware law and the Company's Bylaws, directors, officers
and controlling persons of the Company may be entitled to indemnification by the
Company against liabilities arising out of any suit or proceeding, whether
civil, criminal, administrative or investigative, including a suit or proceeding
under the Securities Act of 1933, to which they were a party by reason of
serving as a director, officer, employee or agent of the Company. Such
provisions require the Company to indemnify any such person 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 upon a determination, by a majority vote of a quorum of the
Board of Directors consisting of directors who were not parties to such action,
suit or proceeding, or by independent legal counsel in a written opinion, or by
the stockholders of the Company, that such person acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Company, and, with respect to any criminal action or proceeding, had no
2
<PAGE>
reasonable cause to believe his conduct was unlawful. Absent such determination,
the Company may, by a vote of the disinterested directors or the stockholders
and to the extent permitted by applicable law, indemnify any such person against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such suit or proceeding.
Item 7: Exemption From Registration Claimed.
Not applicable.
Item 8: Exhibits.
4.1 Directors' Compensation Stock Option Plan.
5.1 Opinion of Rayburn, Moon & Smith, P.A.
23.1 Consent of Rayburn, Moon & Smith, P.A. is found in the opinion set forth
as Exhibit 5.1 to this Registration Statement.
23.2 Consent of Arthur Andersen, LLP.
Item 9. Undertakings.
1. The undersigned Registrant hereby undertakes:
a. 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;
b. That for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
c. 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.
2. 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's benefit plan 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.
3
<PAGE>
3. 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.
4
<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 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 Charlotte, State of North Carolina, on August 31,
1998.
CCAIR, INC.
By: /s/
--------------------------------
Kenneth W. Gann, President
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:
Signature Title Date
/s/ Chief Executive Officer, August 31, 1998
- ---------------------------- President and Director
Kenneth W. Gann (Principal Executive
Officer)
/s/ Vice President, Secretary, August 31, 1998
- ----------------------------- Treasurer and Controller
Eric W. Montgomery (Principal Accounting
Officer) and Director
/s/ Director August 31, 1998
- -----------------------------
George Murnane, III
/s/ Director August 31, 1998
- -----------------------------
Dean E. Painter, Jr.
/s/ Director August 31, 1998
- -----------------------------
Gordon Linkon
/s/ Director August 31, 1998
- -----------------------------
K. Ray Allen
5
<PAGE>
CCAIR, INC.
EXHIBIT INDEX
Exhibit Sequentially
Number Description of Exhibit Numbered Page
------ ---------------------- -------------
4.1 Directors' Compensation Stock Option
Plan, effective November 14, 1996.
5.1 Opinion of Rayburn, Moon & Smith, P.A.
23.1 Consent of Rayburn, Moon & Smith, P.A. is
found in the opinion set forth as Exhibit
5.1 to this Registration Statement
23.2 Consent of Arthur Andersen, LLP.
EXHIBIT 4.1
CCAIR, INC.
DIRECTORS' COMPENSATION STOCK OPTION PLAN
1. Purpose. The Directors' Compensation Stock Option Plan (the "Plan") of
CCAIR, Inc. (the "Company") is adopted by the Company's Board of Directors on
November 14, 1996. The Plan is designed to compensate the Directors of the
Company for their service as members of the Board of Directors and of committees
in lieu of cash compensation.
2. Nonqualified Stock Options. Options granted under the Plan shall be
granted an nonqualified stock options under the Internal Revenue Code of 1986,
as amended (the "Code").
3. Administration. The Plan shall be administered by the Board of
Directors of the Company. No member of the Board of Directors of the Company
shall be liable for any action or determination made in good faith with respect
to the Plan or to any option granted thereunder. In addition, directors shall be
eligible for indemnification from the Company, pursuant to the Company's Bylaws,
for any expenses, judgments or other costs incurred as a result of a lawsuit
filed against them or any of them claiming any rights or remedies due to their
participation in the administration of the Plan.
4. Formula Grant. Each member of the Board of Directors of the Company
upon the adoption of this Plan shall receive options to purchase 20,000 shares
of Common Stock. Any person becoming a director after the effective date of this
Plan shall receive, on the date of such person's election, options to purchase
shares of Common Stock in accordance with the following formula:
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number of whole months
prior to the next November x 20,000 = number of shares
-------------------------- (rounded to the nearest 100)
twelve
As an example, a director is elected to serve on February 10, 1997, the
formula would be calculated as follows:
8 (March - October) x 20,000 = 13,333.33 (13,300).
---
12
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Upon the date of the annual meeting of stockholders of the Company as
established by the bylaws of the Company, each member of the Board of Directors
then serving shall receive options to purchase 20, 000 shares of common stock.
5. Shares Subject to the Plan. The maximum aggregate number of shares of
Common Stock available pursuant to the Plan, subject to adjustment as provided
in Section 8 shall be 300,000 shares of the Company's Common Stock, par value
$.01 per share ("Common Stock").
1
<PAGE>
EXHIBIT 4.1
Shares subject to options may be authorized and unissued shares or previously
issued shares which have been acquired by the Company and are held in its
treasury. Shares subject to options that terminate or expire prior to exercise
shall be available for further option grant hereunder.
6. Terms and Conditions of Options. Stock options granted under the Plan
shall be evidenced by agreements in such form as the Board of Directors may from
time to time approve, which agreements shall comply with and be subject to the
following terms and conditions as applicable:
(a) Number of Shares. Each option shall state the number of shares to
which it pertains.
(b) Option Price. Each option shall state the option price, which
shall not be less than the fair market value (as hereinafter defined) per
share of the Common Stock at the time the option is granted. Fair market
value shall be determined by the Board of Directors on the basis of such
factors as it deems appropriate; provided, however, that fair market value
shall be determined without regard to any restriction other than a
restriction which, by its terms, will never lapse, and further provided,
however, that if at the time the determination of fair market value is
made, the Common Stock is admitted to trading on a national securities
exchange for which sales prices are regularly reported, fair market value
shall not be less than the mean of the high and low asked or closing sales
prices reported for the Common Stock on that exchange on the day (or most
recent trading day preceding the day on which the option is granted). For
purposes of this Plan, the term "national securities exchange" shall
include the National Association of Securities Dealers Automated Quotation
System and the over-the-counter market.
(c) Exercise of Options. Each option shall be exercisable in one or
more installments during its term, and the right to exercise may be
cumulative. At least one hundred shares may be purchased at any one time
unless the number purchased is the total number that may be purchased
under the option at that time. No option may be exercised for any fraction
of a share of Common Stock.
(d) Written Notice and Payment Required. An option granted pursuant
to the terms of this Plan shall be exercised when written notice of that
exercise has been received by the Company at its principal office from the
person entitled to exercise the option and full payment for the shares
with respect to which the option is exercised has been received by the
Company. The purchase price of any shares purchased shall be paid in full
in cash or by certified or cashier's check payable to the order of the
Company or, unless prohibited by the applicable option agreement, by
shares of Common Stock or by a combination of cash, check, and (unless
prohibited by the applicable option agreement) shares of Common Stock. If
any portion of the purchase price is paid in shares of Common Stock, those
shares shall be tendered at their then fair market value as determined in
accordance with Section 6(b).
2
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EXHIBIT 4.1
(e) Compliance With Securities Laws. The options granted under the
Plan and the shares issuable pursuant to the Plan may, at the option of
the Company, be registered under applicable federal and state securities
laws, but the Company shall have no obligation to undertake any such
registrations. Shares of Common Stock shall not be issued with respect to
any option granted under the Plan unless the exercise of that option and
the issuance and delivery of those shares pursuant to that exercise shall
comply with all relevant provisions of state and federal law including,
without limitation, the Securities Act of 1933, as amended, the rules and
regulations promulgated thereunder, and the requirements of any stock
exchange upon which the shares may then be listed, and shall be further
subject to the approval of counsel for the Company with respect to such
compliance. The Board of Directors may also require an optionee to furnish
evidence satisfactory to the Company, including a written and signed
representation letter and consent to be bound by any transfer restriction
imposed by law, legend, condition, or otherwise, that the shares are being
purchased only for investment and without any present intention to sell or
distribute the shares in violation of any state or federal law, rule, or
regulation. Further, each optionee shall consent to the imposition of a
legend on the shares of Common Stock subject to his or her option
restricting their transferability as required by law or by this Plan.
(f) Options Are Transferable. Options granted pursuant to this Plan
may not be sold, pledged, assigned, or transferred in any manner otherwise
than in accordance with this paragraph. Options may be transferred by
gift, by will or the laws of descent or distribution to family members or
to charitable organizations qualifying under Section 501(c)(3) of the
Code.
(g) Duration of Options. Each option and all rights thereunder
granted pursuant to the terms of this Plan shall expire on the date
specified in the applicable option agreement, but in no event shall any
option expire later than 10 years from the date on which the option is
granted. In addition, each option shall be subject to early termination as
provided in the Plan or applicable option agreement.
(h) Termination of Services as a Director. Except as otherwise
provided in the applicable option agreement, if an optionee ceases to
serve as a Director of the Company for any reason other than retirement,
disability or death, any options granted within six months preceding the
date that service as a Director ceases shall terminate on such date. All
other options shall be unaffected and shall remain in full force and
effect.
(i) Rights as a Stockholder. An optionee or a permitted transferee of
an option shall have no rights as a stockholder with respect to any shares
issuable or deliverable pursuant to this Plan until the date of the
issuance of a stock certificate to him for such shares. No adjustment
shall be made for dividends (ordinary or extraordinary, whether in cash,
securities or other property) or distributions or other rights for which
the record date is
3
<PAGE>
EXHIBIT 4.1
prior to the date such stock certificate is issued, except as provided in
Section 8.
(j) Option Agreements. The option agreements authorized under the
Plan may differ from one another and shall contain such other provisions
not inconsistent with the Plan as applicable as the Board of Directors may
in its discretion deem advisable from time to time.
7. Tax Withholding. The exercise of any option granted under the Plan is
subject to the condition that if at any time the Company shall determine, in its
discretion, that the satisfaction of withholding tax or other withholding
liabilities under any state or federal law is necessary or desirable as a
condition of, or in any connection with, such exercise or the delivery or
purchase of shares pursuant thereto, then in such event, the exercise of the
option shall not be effective unless such withholding tax or other withholding
liabilities shall have been satisfied in a manner acceptable to the Company.
8. Changes in Stock. In the event of a stock dividend, split-up or
combination of shares, recapitalization or merger in which the Company is the
surviving corporation or other similar capital change, an appropriate and
proportionate adjustment shall be made in the maximum number and kind of shares
as to which options may be granted under the Plan. A corresponding adjustment
changing the number or kind of shares allocated to unexercised options granted
prior to such change shall likewise be made. Any adjustment in outstanding
options shall be made without change in the aggregate purchase price applicable
to the unexercised portion of the option, but with a corresponding adjustment in
the price for each share covered by the option. In making any adjustment
pursuant to this section, any fractional shares shall be disregarded. In the
event of a consolidation or a merger in which the Company is not the surviving
corporation, or any other merger in which the stockholders of the Company
exchange their shares of stock in the Company for stock of another corporation,
or in the event of complete liquidation of the Company, or in the case of a
tender offer accepted by the Board of Directors, all outstanding options shall
thereupon terminate, provided that the Board may, prior to the effective date of
any such consolidation or merger, either (i) make all outstanding options
immediately exercisable, or (ii) authorize a payment to each optionee that
approximates the economic benefit he or she would have realized if his option
were exercised immediately before such effective date, or (iii) arrange to have
the surviving corporation grant to the optionees replacement options on terms
which the Board shall determine to be fair and reasonable.
9. Effective Date of Plan. This Plan became effective on November 14,
1996, when it was adopted by the Company's Board of Directors and shall continue
to be effective only so long as there remain outstanding, and only with respect
to, unexercised, nonqualified options issued under the Plan, which are not
surrendered for issuance of replacement nonqualified options under the Plan.
4
<PAGE>
EXHIBIT 4.1
10. Termination and Amendment of Plan. The Plan may be terminated at any
time by the Board of Directors. Unless sooner terminated the Plan shall
terminate no later than November 14, 1999. No options shall be granted under the
Plan after that date. Subject to the limitation contained in Section 11, the
Board of Directors may at any time amend or revise the terms of the Plan,
including the form and substance of the option agreements to be used hereunder.
11. Prior Rights and Obligations. No amendment, suspension, or termination
of the Plan shall, without the consent of the optionee, alter or impair any of
that optionee's rights or obligations under any option granted under the Plan
prior to such amendment, suspension, or termination.
IN WITNESS WHEREOF, this Directors' Compensation Stock Option Plan is
executed on behalf of the Company as of November 14, 1996.
CCAIR, Inc.
By: /s/ Kenneth W. Gann
-------------------------------
President
ATTEST:
/s/ Eric W. Montgomery
- -----------------------------
Assistant Secretary
5
EXHIBIT 5.1
September 28, 1998
CCAIR, Inc.
100 Terminal Road
Second Floor
Charlotte, North Carolina 28208
Re: CCAIR, Inc. Common Stock, par value $0.01 per share
Gentlemen:
At your request, we have examined the Registration Statement on Form S-8
(the "Registration Statement"), which CCAIR, Inc. (the "Company") intends to
file with the Securities and Exchange Commission in connection with the
registration under the Securities Act of 1933, as amended, of 235,000 shares of
Common Stock par value $0.01 per share (the "Shares"). The Registration
Statement relates to the registration of the Shares, which are to be offered
under CCAIR, Inc. Directors' Compensation Stock Option Plan (the "Plan"). We are
familiar with the proceedings taken and to be taken in connection with the
authorization, issuance and sale of the Shares. Additionally, we have examined
such questions of law and fact as we have considered necessary or appropriate
for purposes of this opinion.
Based upon the foregoing and the proceedings to be taken by the Company as
referred to above, we are of the opinion that the Shares to be issued under the
Plan have been duly authorized, and upon the issuance of Shares under the terms
of the Plan and delivery and payment therefor of legal consideration in excess
of the aggregate par value of the Shares issued, such Shares will be validly
issued, fully paid and nonassessable.
We consent to your filing this opinion as an exhibit to the Registration
Statement and to the reference to our firm contained under the heading "Legal
Matters" of the prospectus included therein.
Very truly yours,
Rayburn, Moon & Smith, P.A.
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement of our report dated April 17, 1998,
on the Company's 1997 financial statements and schedules included in the
Company's Transition Report on Form 10-K for the six-month period ended
December 31, 1997, and to all references to our firm included in this
Registration Statement on Form S-8.
ARTHUR ANDERSEN LLP
Charlotte, North Carolina
September 25, 1998
