As filed with the Securities and Exchange Commission on November 8, 1996
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
ATLANTIC COAST AIRLINES, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 13-3621051
(State or Other (I.R.S. Employer
Jurisdiction Identification Number)
of Incorporation or
Organization)
One Export Drive 20164
Sterling, VA (Zip Code)
(Address of Principal
Executive Offices)
1995 Stock Incentive Plan
(Full Title of the Plan)
RICHARD J. KENNEDY, ESQ.
General Counsel
Atlantic Coast Airlines, Inc.
One Export Drive
Sterling, VA 20164
(Name and Address of Agent for Service)
(703) 406-6500
(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
PETER J. WALLISON, ESQ.
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, NW, Suite 900
Washington, DC 20036
(202) 955-8500
CALCULATION OF REGISTRATION FEE
Proposed Proposed Amount of
Title of Amount to be Maximum Maximum Registrati
Securities Registered Offering Aggregate on
to be Price Per Offering Fee (2)
registered Share Price (1)
Common Stock,
par value $.02 750,000 N/A $8,015,625 $2,428.98
per share. . .
. . . . . .
(1) Estimated solely for the purpose of determining the
registration fee.
(2) Calculated pursuant to Rule 457(c) based upon the average of
the high and low prices of the Common Stock on the Nasdaq
National Market on November 1, 1996, which was $10 11/16.
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not filed as part of this Registration Statement
pursuant to Note to Part 1 of Form S-8.
Item 2. Registrant Information and Employee Plan Annual
Information.
Not filed as part of this Registration Statement
pursuant to Note to Part 1 of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents of the Registrant heretofore
filed with the Securities and Exchange Commission (the
"Commission") are hereby incorporated in this Registration
Statement by reference:
(1) The Registrant's latest annual report or latest prospectus
filed pursuant to Rule 424(b) under the Securities Act of
1933, as amended (the "Securities Act"), that contains
audited financial statements for the Registrant's latest
fiscal year for which such statements have been filed;
(2) All other reports filed pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since the end of the fiscal year covered by
Registrant's latest annual report or prospectus referred to
in (1) above;
(3) The description of the Common Stock set forth under the
caption "Description of Capital Stock" in the Registrant's
registration statement on Form 8-A, filed with the
Commission on June 23, 1993, File No. 0-21976, together with
any amendment or report filed with the Commission for the
purpose of updating such description.
All reports and other documents subsequently filed by
the Registrant pursuant to Sections 13(a) and (c), 14 and 15(d)
of the Exchange Act prior to the filing of a post-effective
amendment which indicates that all securities offered hereunder
have been sold or which deregisters all such securities 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 of such reports and documents.
Any statement contained herein or in a document
incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained
herein or in any other subsequently filed document which also is
or is deemed to be incorporated by reference herein modifies or
supersedes such earlier 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.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 ("Section 145") of the Delaware General
Corporation Law, as amended, provides a detailed statutory
framework covering indemnification of officers and directors
against liabilities and expenses arising out of legal proceedings
brought against them by reason of their being or having been
directors or officers. Section 145 generally provides that a
director or officer of a corporation (i) shall be indemnified by
the corporation for all expenses of such legal proceedings when
he is successful on the merits, (ii) may be indemnified by the
corporation for the expenses, judgments, fines and amounts paid
in settlement of such proceedings (other than a derivative suit),
even if he is not successful on the merits, 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 corporation, and, with
respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful, and (iii) may be
indemnified by the corporation for the expenses of a derivative
suit (a suit by a stockholder alleging a breach by a director or
officer of a duty owed to the corporation), even if he is not
successful on the merits, 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 corporation. No indemnification may be made
under clause (iii) above, however, if the director or officer is
adjudged liable for negligence or misconduct in the performance
of his duties to the corporation, unless a corporation determines
that, despite such adjudication, but in view of all the
circumstances, he is entitled to indemnification. The
indemnification described in clauses (ii) and (iii) above may be
made only upon a determination that indemnification is proper
because the applicable standard of conduct has been met. Such a
determination may be made by a majority of a quorum of
disinterested directors, independent legal counsel, the
stockholders or a court of competent jurisdiction.
The indemnification of directors and officers is
provided for by Article VIII, Section 2 of the Registrant's
Certificate of Incorporation which provides in substance that, to
the fullest extent permitted by Delaware law as it now exists or
as amended, each director and officer shall be indemnified
against reasonable costs and expenses, including attorney's fees,
and any liabilities which he may incur in connection with any
action to which he may be made a party by reason of his being or
having been a director or officer of the Registrant. The
indemnification provided by the Registrant's Certificate of
Incorporation is not deemed exclusive of or intended in any way
to limit any other rights to which any person seeking
indemnification may be entitled.
Section 102(b)(7) of the Delaware General Corporation
Law, as amended, permits a corporation to provide in its
Certificate of Incorporation that a director of the corporation
shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as
a director, except for liability (i) for any breach of the
director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived
an improper personal benefit.
Article VIII, Section 1 of the Registrant's Certificate
of Incorporation provides for the elimination of personal
liability of a director for breach of fiduciary duty, as
permitted by Section 102(b)(7) of the Delaware General
Corporation Law.
The Registrant maintains liability insurance in the
amount of $15 million insuring its officers and directors against
liabilities that they may incur in such capacities, including
liabilities arising under the Federal securities laws other than
liabilities arising out of the filing of a registration statement
with the Securities and Exchange Commission.
The Registration Rights Agreement by and between the
Company and JSX Capital Corporation ("JSX") provides for cross-
indemnification of JSX if its shares with registration rights are
included in a registration under the Securities Act of 1933, as
amended, and of the Company, its officers and directors for
certain liabilities arising in connection with such registration.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Unless otherwise indicated below as being incorporated
by reference to another filing of the Company with the
Commission, each of the following exhibits is filed herewith:
5 Opinion of Gibson, Dunn & Crutcher LLP.
23.1 Consent of Gibson, Dunn & Crutcher LLP (included
in Exhibit 5).
23.2 Consent of BDO Seidman, LLP (independent
auditors).
Item 9. Undertakings.
(1) The undersigned Registrant hereby undertakes:
(a) 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;
(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
and 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 percent 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)(a)(i) and
(1)(a)(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 Section 15(d) of the Exchange Act that are
incorporated by reference in this registration statement.
(b) That, for the purpose of determining any liability
under the Securities Act, 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.
(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,
each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act 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) Insofar as indemnification for liabilities arising
under the Securities Act 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.
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 the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its
behalf by the undersigned, there-unto duly authorized, in the
City of Sterling, State of Virginia, on this 5th day of November,
1996.
ATLANTIC COAST AIRLINES, INC.
By:
/s/
Kerry B. Skeen
President and Chief Executive
Officer
Each person whose signature appears below constitutes and
appoints Kerry B. Skeen and Richard J. Kennedy, and each of them,
his true and lawful attorney-in-fact, each with full power of
substitution and resubstitution, severally, 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 said attorney-
in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his 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.
Signature Title Date
/s/ President, November 5,
Chief Executive 1996
Kerry B. Skeen Officer,
Chief Operating
Officer
and Director
(Principal Executive
Officer)
/s/ Senior Vice November 5,
President, 1996
James B. Glennon Chief Financial
Officer, Treasurer,
Assistant Secretary
and Director
(Principal Financial
Officer and Principal
Accounting Officer)
Chairman of the
Board of Directors
C. Edward Acker
/s/ Director November 5,
1996
Gordon A. Cain
/s/ Director November 5,
1996
Robert E. Buchanan
/s/ Director November 5,
1996
Joseph W. Elsbury
Director
James J. Kerley
/s/ Director November 5,
1996
James C. Miller
Director
John M. Sullivan
EXHIBIT INDEX
Exhibit Description
Sequentially
Number Numbered
Page
5 Opinion of Gibson, Dunn & Crutcher LLP.
23.1 Consent of Gibson, Dunn & Crutcher LLP
(included in Exhibit 5).
23.2 Consent of BDO Seidman, LLP (independent
auditors).
November 5, 1996
C 03596-00001
Atlantic Coast Airlines, Inc.
One Export Drive
Sterling, VA 20164
Re: Proposed Offering of up to 750,000 Shares of
Common Stock
Ladies and Gentlemen:
We refer to an aggregate of 750,000 shares of Common Stock,
par value $.02 per share, of Atlantic Coast Airlines, Inc., a
Delaware corporation (the "Company"), which are the subject of a
registration statement on Form S-8 (the "Registration Statement")
to be filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the
"Act"). The shares of Common Stock (the "Shares") subject to the
Registration Statement are to be issued under the Company's
1995 Stock Incentive Plan (the "Plan").
We have examined the original, or a photostatic or certified
copy, of such records of the Company, certificates of officers of
the Company and of public officials and such other documents as
we have determined relevant and necessary as the basis for the
opinion set forth below. In such examination, we have assumed
the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified
or photostatic copies and the authenticity of the originals of
such copies.
Based upon our examination mentioned above, we are of the
opinion that the Shares have been validly authorized for issuance
and, when issued and sold in accordance with the terms set forth
in the Registration Statement and the Plan, and, when (a) the
Registration Statement has become effective under the Act,
(b) the pertinent provisions of any applicable state securities
law have been complied with, and (c) in the case of options
issued under the Plans, the Shares have been paid for, the Shares
so issued will be legally issued and will be fully paid and
nonassessable.
We consent to the filing of this opinion as an Exhibit to
the Registration Statement and to the reference to our firm
appearing on the cover of the Registration Statement. In giving
this consent, we do not admit that we are within the category of
persons whose consent is required under Section 7 of the Act or
the General Rules and Regulations of the Commission.
Very truly yours,
/s/
GIBSON, DUNN & CRUTCHER LLP
PJW/ROM/LML
Exhibit 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
To the Board of Directors
Atlantic Coast Airlines, Inc.
We hereby consent to the incorporation by reference in the
Registration Statement on Form S-8 of our reports dated
February 16, 1996, relating to the consolidated financial
statements and schedules of Atlantic Coast Airlines, Inc.
appearing in the Company's Annual Report on Form 10-K for the
year ended December 31, 1995.
/s/
BDO SEIDMAN, LLP
Washington, D.C.
November 5, 1996
