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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________________
KIWI INTERNATIONAL AIR LINES, INC.
(Exact name of registrant as specified in its charter)
_______________
New Jersey 22-3158467
(State or other Jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
Hemisphere Center
Routes 1 & 9 South
Newark, New Jersey 07114
(Address, including zip code, including area code,
of registrant's principal executive offices)
KIWI INTERNATIONAL AIR LINES, INC. 1996 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
JAMES E. PLAYER, CHIEF FINANCIAL OFFICER,
SECRETARY & TREASURER
HEMISPHERE CENTER
ROUTES 1 & 9 SOUTH
NEWARK, NEW JERSEY 07114
(Name, Address, including zip code and telephone number
including area code, of agent for service)
___________________
COPIES TO:
DOUGLAS R. BROWN, ESQ.
NORRIS, MCLAUGHLIN & MARCUS
A PROFESSIONAL CORPORATION
721 ROUTE 202-206
P.O. BOX 1018
SOMERVILLE, NJ 08876-1018
(908) 722-0700
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Securities to be Offering Price Aggregate Registration
to be Registered Registered Per Share Offering Price(1) Fees
- --------------------------------------------------------------------------------
Class A Common Stock,
no par value
per Share 3,400,000 1.00 $3,400,000 $1,173
Class C Common Stock,
no par value
per Share 100,000 1.00 $100,000 $35
Voting Trust
Certificates
representing such
Shares of
Class A Common Stock 3,400,000 ---- ---- ----
- --------------------------------------------------------------------------------
(1) The price is estimated in accordance with Rule 457(h)(1) under the
Securities Act of 1933, as amended, solely for the purpose of calculating
the registration fee and is the sum of the product resulting from
multiplying 3,500,000, the number of shares registered by this Registration
Statement as to which stock awards may be granted under the KIWI
International Air Lines, Inc. 1996 Employee Stock Purchase Plan, by $1.00,
the price per share at which the Registrant contemplates making an initial
grant of awards under the Plan. There is no market for the securities to be
offered, and such securities have a negative book value.
<PAGE>
TABLE OF CONTENTS
Item 1. Plan Information .................................................. *
Item 2. Registrant Information and Employee Plan Annual Information ....... *
Item 3. Incorporation of Documents by Reference ........................... 2
Item 4. Description of Securities ......................................... 2
Item 5. Interests of Named Experts and Counsel ............................ 3
Item 6. Indemnification of Directors and Officers ......................... 3
Item 7. Exemption from Registration Claimed ............................... 4
Item 8. Exhibits .......................................................... 4
Item 9. Undertakings ...................................................... 5
* Separately given to participants, if applicable. Pursuant to the
Commission's Rule 428, which relates to a Registration Statement on Form
S-8, such information is contained in a document which does not constitute
a part of this Registration Statement but which shall, together with the
documents incorporated by reference in this Registration Statement pursuant
to Item 3 of Part II hereof, constitute a prospectus under Section 10(a) of
the Securities Act of 1933.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
Omitted.
Item 2. Registrant Information and Employee Plan Annual Information
Omitted.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by KIWI International Air Lines, Inc. (the
"Company") with the Commission are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1995;
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1996; and
(c) The description of the Company's Common Stock contained in its
Registration Statement on Form 10 filed with the Commission on
July 12, 1995 (File No. 0-26106).
In addition to the foregoing, all documents subsequently filed by the
Company 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
indicating that all of the securities offered hereunder have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be part hereof
from the date of filing of such documents. Any statement contained in a document
incorporated by reference in this Registration Statement 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 that is
also incorporated by reference herein modifies or supersedes such statement. Any
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.
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Item 5. Interests of Named Experts and Counsel
The legality of the Common Stock offered hereby has been passed on for the
Company by Norris, McLaughlin & Marcus, P.A., Somerville, New Jersey. Certain
members of the firm beneficially own, in the aggregate, $150,000 principal
amount of the Company's 10% Convertible Subordinated Secured Notes due June 1,
1996, and Warrants to purchase 30,000 shares of the Company's Class C Common
Stock at $5.00 per share.
Item 6. Indemnification of Directors and Officers
Section 14A:3-5 of the New Jersey Business Corporation Act (the "NJBCA")
gives the Company power to indemnify each of its directors and officers against
expenses and liabilities in connection with any proceeding involving him by
reason of his being or having been a director or officer if (a) he 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 (b) with respect to any criminal proceeding,
he had no reasonable cause to believe his conduct was unlawful. However, in a
proceeding by or in the right of the Company, there shall be no indemnification
in respect of any liabilities or expenses if the officer or director shall have
been adjudged liable to the Company unless the court in such proceeding
determines he is entitled to indemnity for such liabilities and/or expenses.
Furthermore, no indemnification shall be made to or on behalf of a director or
officer if a judgment or other final adjudication adverse to such director or
officer establishes that his acts or omissions (a) were in breach of his duty of
loyalty to the Company and its stockholders, (b) were not in good faith or
involved a knowing violation of law or (c) resulted in receipt by the director
or officer of an improper personal benefit. The NJBCA defines an act or omission
in breach of a person's duty of loyalty as an act or omission which that person
knows or believes to be contrary to the best interests of the Company or its
stockholders in connection with a matter in which he has a material conflict of
interest. If a director or officer is successful in a proceeding, the statute
mandates that the Company indemnify him against expenses.
The Certificate of Incorporation of the Company provides, as permitted by
the NJBCA, that no director or officer of the Company shall be personally liable
to the Company or its shareholders for damages for breach of any duty owed to
the Company or its shareholders other than a breach of duty based upon an act or
omission (a) in breach of such person's duty of loyalty to the Company or its
shareholders, (b) not in good faith or involving a knowing violation of law or
(c) resulting in receipt by such person of improper personal benefit.
The Certificate of Incorporation and the By-Laws provide that the Company
shall indemnify each officer and director of the Company (and each officer and
director of another entity who was serving at the request of the Company) who is
a party to, or is threatened to be made a party to, any threatened, pending or
completed action, suit, or proceeding, whether civil, criminal, administrative,
or investigative, against expenses (including attorneys' fees), judgments,
fines, and amounts paid in settlement, actually and reasonably incurred in
connection with such action, suit or proceeding, if he acted in good faith and
in a manner he reasonably believed to be in, or not opposed to, the best
interests of the Company or its shareholders; and with respect to any criminal
action, suit or proceeding, had no reasonable cause to believe his conduct was
unlawful. They further provide that the Company shall indemnify each such
officer and director in any derivative action, suit or proceeding, if he acted
in good faith and in a manner he reasonably believed to be in, or not opposed
to, the best interests of the Company or its shareholders; except that no
indemnification shall be made in respect to any such derivative action, suit or
proceeding as to which he shall have been adjudged to be liable for gross
negligence or misconduct in the performance of his duties to the Company (unless
and only to the extent that the court in which such action or suit is brought
shall determine, upon application, that, despite the adjudication of liability,
but in view of all of the circumstances of the case, he is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem proper). The
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Certificate of Incorporation and the By-Laws also provide that costs in
defending any action, suit or proceeding referred to above may be paid by the
Company in advance of the final disposition thereof under certain circumstances.
The Company has entered or offered to enter into an Indemnification
Agreement with each director of the Company under which the Company is obligated
to indemnify such person for damages, costs and expenses: (i) under
substantially the same circumstances for which indemnification is required or
permitted under the Company's Certificate of Incorporation and By-Laws and (ii)
otherwise incurred unless by reason of a breach of duty based upon an act or
omission (a) in breach of such person's duty of loyalty to the Company or its
shareholders, (b) not in good faith or involving a knowing violation of law or
(c) resulting in receipt by such person of improper personal benefit. Such
Indemnification Agreement also provides that any future change to the Company's
Certificate of Incorporation or By-laws which has the effect of denying or
diminishing any person's right to indemnification from the Company may not be
applied retroactively.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
4(a) KIWI International Air Lines, Inc. 1996 Employee Stock Purchase
Plan
4(b) Certificate of Incorporation provision defining rights of Class A
and Class C Common Stock, incorporated by reference to Exhibit
4.3 of the Company's Registration Statement on Form 10 filed with
the Commission on July 12, 1995 (File No. 0-26106).
4(c) Form of Shareholders' Agreement dated October 1, 1992 (relating
to Class A Common Stock), incorporated by reference to Exhibit
4.4 of the Company's Registration Statement on Form 10 filed with
the Commission on July 12, 1995 (File No. 0-26106).
4(d) Form of Voting Trust Agreement dated as of October 1, 1992,
incorporated by reference to Exhibit 9.1 of the Company's
Registration Statement on Form 10 filed with the Commission on
July 12, 1995 (File No. 0-26106).
4(e) Form of Voting Trust Certificate, incorporated by reference to
Exhibit 9.2 of the Company's Registration Statement on Form 10
filed with the Commission on July 12, 1995 (File No. 0-26106).
5 Opinion of Norris, McLaughlin & Marcus, P.A.
23(a) Consent of Arthur Andersen LLP
23(b) Consent of Norris, McLaughlin & Marcus (included in Exhibit 5)
24 Power of Attorney (included on signature page)
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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 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
(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(i) and 1(ii) do not apply if 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 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 Section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) 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.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets 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 Newark, State of New Jersey on the 2nd day of May,
1996.
KIWI INTERNATIONAL AIR LINES, INC.
By: /s/ JOHN G. MURPHY
------------------------------
John G. Murphy
President and Chief
Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints John G. Murphy and James E. Player, and either of
them (with full power in each to act alone), his true and lawful
attorneys-in-fact, with full 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) to this Registration Statement, 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 to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact, 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, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated below.
/s/ JOHN G. MURPHY President May 2, 1996
- ------------------------------------ (Principal Executive
John G. Murphy Officer)
/s/ JAMES E. PLAYER Chief Financial Officer, May 2, 1996
- ------------------------------------ ecretary and Treasurer
James E. Player (Principal Financial and
Accounting Officer)
/s/ JOHN P. ANDERSON Director May 2, 1996
- ------------------------------------
John P. Anderson
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/s/ JACK E. GRAY Director May 2, 1996
- ------------------------------------
Jack E. Gray
/s/ DONALD GRISHAM Director May 2, 1996
- ------------------------------------
Donald Grisham
/s/ JAMES HAWKS Director May 2, 1996
- ------------------------------------
James Hawks
- ------------------------------------ Director _______, 1996
Dumitru Cucu
- ------------------------------------ Director _______, 1996
Russell Thayer
/s/ JAMES B. ROBBINS Director April 30, 1996
- ------------------------------------
James B. Robbins
Director _______, 1996
- ------------------------------------
Alan Halpert
/s/ BERNARD MANN Director May 2, 1996
- ------------------------------------
Bernard Mann
Director _______, 1996
- ------------------------------------
Norton Waltuch
Director ________, 1996
- ------------------------------------
Cecelia B. Hallman
/s/ FRED BARBER Director May 2, 1996
- ------------------------------------
Fred Barber
7
<PAGE>
EXHIBIT INDEX
Exhibit Description
------- -----------
4(a) KIWI International Air Lines, Inc. 1996 Employee Stock Purchase
Plan
4(b) Certificate of Incorporation provision defining rights of Class A
and Class C Common Stock, incorporated by reference to Exhibit
4.3 of the Company's Registration Statement on Form 10 filed with
the Commission on July 12, 1995 (File No. 0-26106).
4(c) Form of Shareholders' Agreement dated October 1, 1992 (relating
to Class A Common Stock), incorporated by reference to Exhibit
4.4 of the Company's Registration Statement on Form 10 filed with
the Commission on July 12, 1995 (File No. 0-26106).
4(d) Form of Voting Trust Agreement dated as of October 1, 1992,
incorporated by reference to Exhibit 9.1 of the Company's
Registration Statement on Form 10 filed with the Commission on
July 12, 1995 (File No. 0-26106).
4(e) Form of Voting Trust Certificate, incorporated by reference to
Exhibit 9.2 of the Company's Registration Statement on Form 10
filed with the Commission on July 12, 1995 (File No. 0-26106).
5 Opinion of Norris, McLaughlin & Marcus, P.A.
23(a) Consent of Arthur Andersen LLP
23(b) Consent of Norris, McLaughlin & Marcus (included in Exhibit 5)
24 Power of Attorney (included on signature page)
KIWI INTERNATIONAL AIR LINES, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
Section 1. PURPOSE.
The purpose of the KIWI International Air Lines, Inc. 1996 Employee Stock
Purchase Plan (the "Plan") is to promote the interests of KIWI International Air
Lines, Inc., a New Jersey corporation (the "Company"), and all subsidiaries
thereof by providing an opportunity to selected employees, officers and
directors of the Company or any subsidiary thereof as of the date of the
adoption of the Plan or at any time thereafter, and consultants or advisors
rendering bona fide services to the Company or any subsidiary thereof, to
acquire Common Stock of the Company. By encouraging such stock ownership, the
Company seeks to attract, retain and motivate such employees and persons and to
encourage such employees and persons to devote their best efforts to the
business and financial success of the Company.
Section 2. DEFINITIONS.
For purposes of the Plan, the following terms used herein shall have the
following meanings, unless a different meaning is clearly required by the
context.
"Award" shall mean an award of the right to purchase or otherwise acquire
Common Stock granted pursuant to the Plan.
"Award Agreement" shall mean a written agreement, contract or other
instrument or document evidencing an Award.
"Board of Directors" shall mean the Board of Directors of the Company.
"Book Value" of a share of Common Stock shall mean, as of any date, the
aggregate book value of all series of common stock of the Company, divided by
the total number of issued and outstanding shares of all series of common stock
of the Company as of such date, determined on the basis of the Company's audited
financial statements as of such date.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Class A Common Stock" shall mean the Class A Common Stock, no par value,
of the Company, which is subject to an Award under this Plan, or the Class A
Common Stock, no par value, of the Company, as a class, as the context may
require.
"Class C Common Stock" shall mean the Class C Common Stock, no par value,
of the Company, which is subject to an Award under this Plan, or the Class C
Common Stock, no par value, of the Company, as a class, as the context may
require.
<PAGE>
"Common Stock" shall mean the Class A Common Stock and/or the Class C
Common Stock which is subject to awards granted under this Plan, or the Class A
Common Stock and/or the Class C Common Stock as separate classes or a single
class, as the context may require.
"Disability" shall mean permanent and total disability within the meaning
of Section 22(e)(3) of the Code.
"Eligible Person" shall mean any Employee, director and officer of the
Company, and any consultant or advisor rendering bona fide services to the
Company or any Subsidiary.
"Employee" shall mean any person who is employed by the Company or any
Subsidiary, on a full-time or part-time basis.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Fair Market Value" of a share of Common Stock shall mean, as of any day,
the average of the last sale prices of sales of shares of Common Stock on all
national securities exchanges on which the Common Stock may at the time be
listed or, if there shall have been no sales on such day, the average of the
highest bid and lowest asked prices on all such exchanges at the end of such
day, or, if on such day the Common Stock shall not be so listed, the last sale
price on the NASDAQ system on such day, or, if there shall have been no sales on
such day, the average of the representative bid and asked prices quoted in the
NASDAQ system as of 3:30 p.m., New York time, on such day, or, if on such day
the Common Stock shall not be quoted in the NASDAQ system, the average of the
high and low bid and asked prices on such day in the over-the-counter market as
reported by National Quotation Bureau Incorporated, or any similar successor
organization. If at any time the Common Stock is not listed on any national
securities exchange or quoted in the NASDAQ system or the over-the-counter
market, the Fair Market Value of the shares of Common Stock subject to an Award
shall be the Fair Market Value thereof determined by the Board of Directors in
its absolute discretion, exercised in good faith.
"Participant" shall mean any Eligible Person to whom an Award is granted
pursuant to the Plan.
"Rule 16b-3" shall mean Rule 16b-3 promulgated by the Securities and
Exchange Commission under the Exchange Act, as amended, and any successor to
such Rule.
"Securities Act" shall mean the Securities Act of 1933, as amended.
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"Stock Plan Committee" shall mean the committee of the Board of Directors
referred to in Section 5 hereof.
"Subsidiary" shall mean any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company if each of the
corporations other than the last corporation in the unbroken chain owns stock
possessing 50% or more of the total combined voting power of all classes of
capital stock in one of the other corporations in such chain.
"Transfer" shall mean sell, assign, transfer, pledge, convey or otherwise
dispose of, or subject to any lien, encumbrance or security interest of any
kind.
Section 3. ELIGIBILITY.
Subject to Section 6(a), Awards may be made to any Eligible Person. The
Board of Directors shall have the sole authority to select the Eligible Persons
to whom Awards are to be granted hereunder. No person shall have any right to
participate in the Plan. Any Eligible Person selected by the Board of Directors
for participation during any one period will not by virtue of such participation
have the right to be selected as a Participant for any other period.
Section 4. COMMON STOCK SUBJECT TO THE PLAN
4.1. NUMBER OF SHARES. The total number of shares of Class A Common Stock
for which Awards may be granted under the Plan shall not exceed in the aggregate
three million four hundred thousand (3,400,000) shares (subject to adjustment as
provided in Section 8 hereof), and the total number of shares of Class C Common
Stock for which Awards may be granted under the Plan shall not exceed in the
aggregate one hundred thousand (100,000) shares (subject to adjustment as
provided in Section 8 hereof). If any shares of Common Stock subject to an Award
are forfeited prior to the time such shares are issued by the Company to the
Participant under the terms of the Award, such shares shall again become
available for grant pursuant to the Plan.
4.2 SHARES AVAILABLE. The shares of Common Stock that may be subject to
Awards granted under the Plan may be either authorized and unissued shares or
shares reacquired at any time and now or hereafter held as treasury stock, as
the Board of Directors may determine.
Section 5. ADMINISTRATION OF THE PLAN.
5.1 ADMINISTRATION BY BOARD OF DIRECTORS OR COMMITTEE. The Plan shall be
administered by the Board of Directors or, if established at any time by the
Board of Directors, by a committee thereof, the members of which shall be
appointed by and serve at the pleasure of the Board of Directors (the "Stock
Plan Committee"). The Stock Plan Committee shall consist of two or more
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persons, all of whom shall be "disinterested persons" within the meaning of Rule
16b-3, and once constituted, the Plan shall be thereafter be administered by the
Stock Plan Committee, for so long as the Board of Directors deems it desirable
for the Plan to comply with and qualify under Rule 16b-3. So long as the Plan is
administered in accordance with Rule 16b-3, persons serving or designated to
serve as members of the Committee shall not be granted Awards under the Plan. As
used herein, except in Sections 14 ("Amendment of the Plan"), 16 ("Termination
of the Plan") and 17 ("Effective Date of the Plan"), references to the Board of
Directors shall mean the Board of Directors or the Committee, whichever is then
acting with respect to the administration of the Plan.
5.2 INTERPRETATION. The Board of Directors shall have full authority to
interpret and construe the Plan and any provision thereof, any Award granted
under the Plan or any Award Agreement. The Board of Directors shall have the
authority to adopt, modify or rescind from time to time such rules and
regulations, not inconsistent with the provisions of the Plan, as it may deem
advisable to carry out the purposes of the Plan.
5.3 FINALITY. The interpretation and construction by the Board of Directors
of any provision of the Plan or any rule or regulation adopted thereunder, or of
any Award or Award Agreement, shall be final and conclusive upon all parties.
5.4 AUTHORITY OF THE BOARD OF DIRECTORS. The Board of Directors shall have
the sole authority and discretion under the Plan to take the following actions,
in each case subject to and consistent with the provisions of the Plan: (i) to
select the Participants who are granted Awards under the Plan; (ii) to determine
the number of Awards and the time or times Awards shall be made; (iii) to
establish the terms, conditions, restrictions and limitations of any Award,
including without limitation, (A) the number of shares of Common Stock to be
covered by each Award; (B) the amount to be paid by a Participant to acquire
shares of Common Stock pursuant to an Award; (C) the form of the consideration
that may be used to purchase shares of Common Stock pursuant to any Award
(including, without limitation) the circumstances under which the Company's
issued and outstanding shares of Common Stock may be used by a Participant to
purchase the Common Stock subject to an Award and the circumstances under which
a Participant may elect to purchase shares pursuant to an Award by delivery of
Participants promissory note); (D) restrictions or limitations on the vesting of
shares of Common Stock subject to an Award, including by way of illustration and
not limitation, forfeiture and vesting provisions (which may be contingent upon
the Participant's continued employment by the Company or any Subsidiary, the
Participant achieving specified performance goals, the Company meeting specified
financial goals, a change of control of the Company, or other specified events)
and the conditions for the lapse or waiver
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of such restrictions or limitations, (E) restrictions or limitations on the
rights of a Participant as a holder of shares of Common Stock acquired pursuant
to an Award, including restrictions and limitation on the right to vote or
receive dividends or other distributions in respect of such shares and (F)
Transfer restrictions, including the conditions upon which shares of Common
Stock acquired pursuant to an Award may be Transferred or shall be subject to
repurchase by the Company or subject to a right of first refusal of the Company
(as well as the terms and conditions of any such right of first refusal); (iv)
to prescribe the form of any Award Agreement, which not need be identical for
each Participant; (v) to require that any recipient of an Award become a party
to any stockholders' or voting trust agreement to which the Company or any
subsidiary is a party; (vi) to modify or accelerate the time at which any or all
restrictions, limitations or conditions imposed with respect to any shares of
Common Stock subject to an Award will lapse or waive any such restrictions,
limitations or conditions; (vii) to determine the Book Value or the Fair Market
Value of the Common Stock for purposes of the Plan and any Award or Award
Agreement; and (viii) to determine all other matters to be determined in
connection with an Award and the administration of the Plan.
Section 6. SPECIFIC TERMS AND CONDITIONS OF AWARDS.
The Board of Directors shall grant Awards to Participants on the following
terms and conditions:
(a) Awards of Class A Common Stock shall be made only to Eligible Persons
who are Employees at the time of the Awards and Awards of Class C Common Stock
shall be made only to Eligible Persons who are not Employees at the time of the
Award.
(b) The terms and conditions of each Award granted under the Plan shall be
specified by the Board of Directors and set forth in an Award Agreement between
the Company and the Participant in such form as the Board of Directors shall
approve. The terms and conditions of any Award granted hereunder need not be
identical to those of any other Award granted hereunder. No Participant shall
have any rights to or interest in an Award until it has executed and delivered
an Award Agreement with respect to such an Award.
(c) Shares of Common Stock subject to an Award shall be subject to such
vesting conditions, restrictions on Transfer and other restrictions, limitations
and conditions as the Board of Directors may impose, which may lapse separately
or in combination at such times, or in installments or otherwise, as the Board
of Directors shall determine at the time of grant or thereafter.
(d) Except as otherwise determined by the Board of Directors at the time of
grant or thereafter, upon termination of employment (as determined by criteria
established by the Board of Directors) prior to the lapse or waiver of all
vesting conditions
5
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imposed on an Award, shares of Common Stock that are at the time subject thereto
shall be forfeited upon such terms and conditions as may be contained in the
Award Agreement pursuant to which such Award was granted; provided however, that
the Board of Directors may provide by rule, regulation or in any Award Agreement
that such conditions shall be waived in whole or in part in the event of
terminations resulting from specified causes, and in other cases the Board of
Directors may waive in whole or in part any restrictions or conditions on such
shares.
Section 7. TRANSFER RESTRICTIONS.
Until all restrictions, limitations and conditions imposed on any Award
have lapsed in accordance with the terms of the Plan and the Award Agreement by
which such Award was granted, the shares of Common Stock subject to such Award
shall not be Transferred otherwise than by will or the laws of descent and
distribution, except to the Company under the terms of the Plan or such Award
Agreement, provided, however, that a Participant may, in the manner established
by the Board of Directors, designate a beneficiary or beneficiaries to exercise
the rights of the Participant with respect to the Award upon the death of the
Participant. A beneficiary, guardian, legal representative or other person
claiming any rights under the Plan from or through a Participant shall be
subject to all the terms, conditions, restrictions and limitations imposed by
the Plan and any Award Agreement applicable to such Participant, as well as any
additional restrictions or limitations deemed necessary or appropriate by the
Board of Directors.
Section 8. ADJUSTMENTS.
In the event that, after the adoption of the Plan by the Board of
Directors, there shall be any change in the outstanding shares of Common Stock
by reason of merger, consolidation, reorganization, recapitalization, stock
split, combination or exchange of shares or declaration of dividends payable in
Common Stock, the Board of Directors shall appropriately adjust the number of
shares of Common Stock for which Awards may be granted under the Plan. If the
Company shall not be the surviving corporation in any merger, consolidation or
reorganization, shares of Common Stock acquired pursuant to an Award which are
converted into common stock or other securities of the surviving corporation
shall be subject to the same terms, conditions and restrictions as were
applicable to such shares of Common Stock immediately prior to conversion,
except to the extent that such terms, conditions and restrictions were modified
as a result of such merger, consolidation or reorganization or have lapsed. In
the event that at any time an Award is outstanding, the Company should make an
extraordinary dividend or other extraordinary distribution (whether in cash,
property, securities or any combination thereof) with respect to shares of
Common Stock, or repurchase shares of Common Stock pursuant to a tender offer or
exchange offer subject to Section 13(e) of the Exchange Act or any other offer
available to substantially all holders of the Common
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Stock (other than repurchases of shares of Common Stock by the Company in open
market transactions), the Board of Directors may consider the economic impact of
such share repurchases and may, in its discretion, make such adjustments as it
deems appropriate under the circumstances.
Section 9. WITHHOLDING.
To the extent that the Company is required to withhold any Federal, state
or local taxes in respect of any Award granted hereunder or in respect of any
shares of Common Stock acquired pursuant to an Award, whether upon the lapse or
waiver of restrictions thereon or as a result of any election made by a
Participant pursuant to Section 83(b) of the Code or for any other reason, the
Company shall deduct from any payments of any kind otherwise due to such
Participant the aggregate amount of such Federal, state or local taxes required
to be so withheld or, if such payments are insufficient to satisfy such Federal,
state or local taxes, or if no such payments are due or to become due to such
Participant, then, such Participant will be required to pay to the Company, or
make other arrangements satisfactory to the Company regarding payment to the
Company of, the aggregate amount of any such taxes. At the Company's option and
only to the extent permitted by applicable law, a Participant may satisfy a
withholding tax payment obligation by electing to have the Company or any
Subsidiary apply outstanding shares of Common Stock owned by the Participant,
including shares acquired by it pursuant to an Award (provided that all
restrictions and limitations on such shares shall have lapsed or been waived),
against the taxes required to be withheld, and the shares so applied shall be
that number of shares of Common Stock the Fair Market Value of which is equal to
the tax required to be withheld (determined on the date that the amount of
withholding tax is to be determined). All matters with respect to the amount and
payment of taxes to be withheld in respect of any such compensation income shall
be determined by the Board of Directors in its sole discretion.
Section 10. EVIDENCE OF AWARDS; STOCK CERTIFICATES.
Awards may be evidenced in any manner the Board of Directors deems
appropriate, including without limitation, Award Agreements, book entry
registration or the issuance of stock certificates. Certificates evidencing
shares of Common Stock acquired pursuant to an Award shall bear an appropriate
legend referring to the restrictions imposed on such Stock and such other
matters as the Board of Directors may determine. The Board of Directors may
require that stock certificates or other instruments evidencing the shares of
Common Stock issued in respect of Awards shall be held by the Company or other
person, until all restrictions, limitations and conditions thereon shall have
lapsed.
Section 11. COMPLIANCE WITH SECURITIES LAWS.
If the shares of Common Stock that have been issued to a Participant
pursuant to the Plan have not been registered under the Securities
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Act pursuant to an effective registration statement, such Participant, if the
Board of Directors deems it advisable, may be required to represent and agree in
writing that (i) no such shares acquired by the Participant pursuant to the Plan
will be sold except pursuant to an effective registration statement under the
Securities Act or pursuant to an exemption from registration thereunder and (ii)
such Participant is acquiring such shares for his or her own account and not
with a view to the distribution thereof. The Company shall have the right to
require that any certificate evidencing Common Stock issued pursuant to the Plan
bear any restrictive legend required by law, the Plan or the Award Agreement
relating to such Award. The Company may, but shall not be required to, cause
shares of Common Stock acquired pursuant to an Award to be registered under the
Securities Act or applicable state securities laws or to be listed or admitted
to trading on any established securities exchange or market in which the Common
Stock is listed or traded.
Section 12. RIGHTS AS STOCKHOLDER.
A Participant shall have absolute ownership of such shares of Common Stock,
including the right to vote and receive dividends declared thereon, from the
date on which the Participant's holding of shares of Common Stock is entered
upon the records of the Company or its duly authorized transfer agent, subject
to the terms, conditions, limitations and restrictions set forth in the Plan and
in the Award Agreement relating to such Award. Except as expressly provided in
the Plan or an Award Agreement, no adjustment shall be made for dividends or
other rights for which the record date is prior to the date on which the
Participant's holding of shares is so recorded.
Section 13. EFFECT OF THE PLAN ON EMPLOYMENT RELATIONSHIP.
Neither the Plan nor any Award granted hereunder to a Participant shall be
construed as conferring upon such Participant any right to continue in the
employ of (or otherwise provide services to) the Company or any Subsidiary, or
limit in any respect the right of the Company or any Subsidiary to terminate
such Participant's employment or other relationship with the Company or such
Subsidiary, as the case may be, at any time.
Section 14. AMENDMENT OF THE PLAN.
The Board of Directors may amend the Plan from time to time as it deems
desirable, provided, however, that, if required by (i) the certificate of
incorporation or by-laws of the Company, (ii) any stockholders' or voting trust
agreement to which the Company is a party or (iii) Rule 16b-3 (if the Board of
Directors has determined that the Plan should comply with and be qualified under
Rule 16b-3), the Board of Directors shall not amend the Plan without the
approval of stockholders, to the extent required thereby. No amendment made
after the date an Award is made shall adversely affect any right of a
Participant with respect to such Award without the written consent of such
Participant.
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Section 15. EXPENSES, INDEMNITY.
(a) All expenses and liabilities incurred in the administration of the Plan
shall be borne by the Company. The Board of Directors may employ attorneys,
consultants, accountants or other persons in connection with the administration
of the Plan, and shall be entitled to rely upon the advice, opinions or
valuations of any such persons.
(b) No member of the Board of Directors shall be liable for any action,
determination or interpretation taken or made in good faith with respect to the
Plan or any Award granted thereunder.
(c) Each member of the Board of Directors or the Stock Plan Committee
acting in the administration of the plan shall be indemnified by the Company
from all claims, liabilities and expenses he or she may suffer or incur by
reason thereof, to the fullest extent permitted by the New Jersey Business
Corporation Act.
Section 16. TERMINATION OF THE PLAN.
The Board of Directors may terminate the Plan at any time. Unless the Plan
shall theretofore have been terminated by the Board of Directors, the Plan shall
terminate ten years after the date of its initial adoption by the Board of
Directors. No Award may be granted hereunder after termination of the Plan. The
termination of the Plan shall not alter or impair any rights or obligations
under any Award theretofore granted under the Plan.
Section 17. EFFECTIVE DATE OF THE PLAN.
The Plan was adopted by the Board of Directors on April 23, 1996 and shall
be effective as of May 1, 1996, subject to approval on or before May 1, 1997 by
the holders of at least 51% of all classes of capital stock of the Company
present and voting at a meeting of the stockholders of the Company for such
purpose; provided, however, that the failure to obtain such stockholders'
approval within the period specified shall not affect the validity of any Award
granted prior to the earlier to occur of: (i) the date of the meeting at which
stockholders take action to disapprove the Plan, or (ii) May 1, 1997, or any
Common Stock issued pursuant to any such Award.
* * * * *
9
May 2, 1996
KIWI International Air Lines, Inc.
Hemisphere Center
Route 1 & 9 South
Newark, New Jersey 07114
Ladies and Gentlemen:
We refer you to the proposed Registration Statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1993, of KIWI
International Air Lines, Inc. (the "Company") pertaining to the offer and sale
by the Company of 3,400,000 shares of the Company's Class A Common Stock, no par
value (the "Class A Common Shares") and 100,000 shares of Class C Common Stock,
no par value (the "Class C Common Shares") pursuant to awards made from time to
time under the Company's 1996 Employee Stock Purchase Plan (the "Plan").
We have acted as counsel to the Company in connection with the Registration
Statement. In such capacity, we have examined the Registration Statement, copies
of the Company's Certificate of Incorporation and amendments thereto,
certificates of officers of the Company and of public officials and such other
corporate records and documents as we have deemed necessary in order to express
the opinion set forth below.
Based upon the foregoing examination, it is our opinion that upon the
issuance of certificates evidencing the Class A Common Shares and Class C Common
Shares and delivery thereof in exchange for payment therefor of the amounts
described in the award agreements properly granted under the Plan from time to
time, and upon satisfaction of all other conditions, if any, set forth in such
award agreements, then the Class A Common Shares and the Class C Common Shares
shall be validly issued, fully paid and nonassessable.
<PAGE>
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and the reference to our firm in prospectus included in
such Registration Statement under the heading "Validity of Common Stock."
Very truly yours,
NORRIS, McLAUGHLIN & MARCUS
Douglas R. Brown
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 March 15, 1996
included in KIWI International Air Lines, Inc. Form 10-K for the year ended
December 31, 1995 and to all references to our Firm included in this
registration statement.
ARTHUR ANDERSEN LLP
Roseland, New Jersey
May 6, 1996
