Registration No. 333- -
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ATLANTIC COAST AIRLINES HOLDINGS, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 515-A Shaw Road 13-3621051
(State or Dulles, VA 20166 (I.R.S.
Other Employer
Jurisdiction Identificatio
of n No.)
Incorporation
or
Organization)
(Address of Principal Executive
Offices Including Zip Code)
ATLANTIC COAST AIRLINES HOLDINGS, INC.:
2000 STOCK INCENTIVE PLAN
NON-EXECUTIVE OFFICER STOCK PLAN
NON-OFFICER OPTION GRANT PROGRAM
(Full Title of the Plans)
Copies to:
Richard J. Kennedy Ronald O. Mueller, Esq.
Atlantic Coast Airlines Holdings, Gibson, Dunn & Crutcher LLP
Inc. 1050 Connecticut Avenue, N.W.
515-A Shaw Road Washington, D.C. 20036
Dulles, VA 20166 (202) 955-8500
(Name and Address of Agent For Service)
(703) 925-6000
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
Title of Amount to be Proposed Proposed Amount of
Securities Registered(1) Maximum Maximum Registration
to be Offering Aggregate Fee
Registered Price Offering
Per Share(2) Price(2)
Common Stock, 3,200,000 $32.59 $104,288,000 $27,532.05
par value shares
$0.01 per
share
(1)Pursuant to Rule 416, there is also being registered
such additional Common Stock that become available under the
foregoing plans in connection with certain changes in the
number of outstanding Common Stock because of events such as
recapitalizations, stock dividends, stock splits and reverse
stock splits, and any other securities with respect to which
the outstanding Shares are converted or exchanged.
(2)Estimated solely for the purpose of calculating the
registration fee. The registration fee has been calculated
in accordance with Rule 457(h) under the Securities Act of
1933 based upon the average high and low prices for the
Common Stock on July 18, 2000, which was $32.59.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information requested in Part I of this Registration
Statement is included in the prospectus for the 2000 Stock
Incentive Plan, which the Registrant has excluded from this
Registration Statement in accordance with the instructions to
Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed with the Securities
and Exchange Commission ("Commission") are hereby incorporated by
reference into this Registration Statement:
1. Atlantic Coast Airlines Holdings, Inc.'s Annual Report
on Form 10-K for the year ended December 31, 1999.
2. Atlantic Coast Airlines Holdings Inc.'s Quarterly
Report on Form 10-Q for the quarter ended March 31,
2000.
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, File
No. 0-21976, filed with the Commission on June 23,
1993, together with any amendment or report filed with
the Commission for the purpose of updating such
description.
All reports and other documents that the Registrant
subsequently files with the Commission pursuant to Sections
13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment indicating that the Registrant has sold
all of the securities offered under this Registration Statement
or that deregisters the distribution of all such securities then
remaining unsold, shall be deemed to be incorporated by reference
into this Registration Statement from the date that the
Registrant files such report or document. Any statement
contained in this Registration Statement or any report or
document incorporated into this Registration Statement by
reference, however, shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a
statement contained in a subsequently dated report or document
that is also considered part of this Registration Statement, or
in any amendment to this Registration Statement, is inconsistent
with such prior statement. The Registrant's file number with the
Commission is 0-21976.
Item 4. Description of Securities.
Inapplicable.
Item 5. Interests of Named Experts and Counsel.
Inapplicable.
Item 6. Indemnification of Directors and Officers.
Section 145(a) of the Delaware General Corporation Law
provides that a Delaware corporation may indemnify any person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation) by reason
of the fact that such person is or was a director, officer,
employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or
agent of another corporation or enterprise, 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 if he or she
acted in good faith and in a manner he or she 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
cause to believe his or her conduct was unlawful.
Section 145(b) of the Delaware General Corporation Law
provides that a Delaware corporation may indemnify any person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by
reason of the fact that such person acted in any of the
capacities set forth above, against expenses (including
attorneys' fees) actually and reasonably incurred by such person
in connection with the defense or settlement of such action or
suit if he or she acted under similar standards, except that no
indemnification may be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the
court in which such action or suit was brought shall determine
that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and
reasonably entitled to be indemnified for such expenses which the
court shall deem proper.
Section 145 of the Delaware General Corporation Law further
provides that (i) to the extent that a former or present director
or officer of a corporation has been successful in the defense of
any action, suit or proceeding referred to in subsections (a) and
(b) or in the defense of any claim, issue or matter therein, such
person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him or her
in connection therewith; (ii) indemnification provided for by
Section 145 shall not be deemed exclusive of any other rights to
which the indemnified party may be entitled; and (iii) the
corporation may purchase and maintain insurance on behalf of any
present or former director, officer, employee or agent of the
corporation or any person who at the request of the corporation
was serving in such capacity for another entity against any
liability asserted against such person and incurred by him or her
in any such capacity or arising out of his or her status as such,
whether or not the corporation would have the power to indemnify
him or her against such liabilities under Section 145.
As permitted by Section 102(b)(7) of the Delaware General
Corporation Law, our Certificate of Incorporation provides that a
director shall not be liable to Atlantic Coast Airlines Holdings,
Inc. or its stockholders for monetary damages for breach of
fiduciary duty as a director. However, such provision does not
eliminate or limit the liability of a director for acts or
omissions not in good faith or for breaching his or her duty of
loyalty, engaging in intentional misconduct or knowingly
violating a law, paying a dividend or approving a stock
repurchase which was illegal, or obtaining an improper personal
benefit. In addition, our Bylaws contain provisions authorizing
Atlantic Coast Airlines Holdings, Inc. to indemnify any person
entitled to indemnity under the General Corporation Law of the
State of Delaware (the "DGCL") to the fullest extent permitted by
the DGCL; provided, however, that the Corporation shall not be
permitted to indemnify any person in connection with any
proceeding initiated by such person, unless such proceeding is
authorized by a majority of the directors of the corporation.
We may, to the fullest extent permitted by the Delaware
General Corporation Law, purchase and maintain insurance on
behalf of any officer, director, employee or agent against any
liability which may be asserted against such person.
Atlantic Coast Airlines Holdings, Inc. 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 Commission.
Item 7. Exemption from Registration Claimed.
Inapplicable.
Item 8. Exhibits.
Description
Exhibit No.
5.1 Opinion of Gibson, Dunn & Crutcher, LLP
23.1 Consent of Gibson, Dunn & Crutcher, LLP
(contained in Exhibit 5.1)
23.2 Consent of KPMG LLP, independent auditors
24.1 Power of Attorney (included on the
signature page of this Registration
Statement)
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 of 1933, as
amended (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 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 Sterling, State of Virginia, on this 20th day of
July, 2000.
ATLANTIC COAST AIRLINES HOLDINGS, INC.
By: /s/
Name: Kerry B. Skeen
Title: Chairman of the Board of Directors
and Chief Executive Officer
POWER OF ATTORNEY
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 date indicated. Each of the
directors and/or officers of the Registrant whose signature
appears below hereby appoints Kerry B. Skeen and Richard J.
Kennedy, and each of them severally as his attorney-in-fact to
sign his name and on his behalf, in any and all capacities stated
below, and to file with the Securities and Exchange Commission
any and all amendments, including post-effective amendments to
this Registration Statement as appropriate, and generally to do
all such things in their behalf in their capacities as officers
and directors to enable Registrant to comply with the provisions
of the Securities Act of 1933, and all requirements of the
Securities and Exchange Commission.
Name and Signature Title Date
/s/
Kerry B. Skeen Chairman of the Board July 20, 2000
of Directors and
Chief Executive
Officer
/s/ Director, President July 20, 2000
Thomas J. Moore and Chief Operating
Officer
/s/ Director July 20, 2000
C. Edward Acker
/s/ Director July 20, 2000
Robert E. Buchanan
/s/ Director July 20, 2000
Susan MacGregor Coughlin
/s/ Director July 20, 2000
Daniel L. McGinnis
/s/ Director July 20, 2000
James C. Miller III
/s/ Director July 20, 2000
Judy Shelton
/s/ Director July 20, 2000
John M. Sullivan
EXHIBIT INDEX
Sequential
ly
Exhibit Description Numbered
No. Page
5.1 Opinion of Gibson, Dunn & Crutcher, LLP
23.1 Consent of Gibson, Dunn & Crutcher, LLP N/A
(contained in Exhibit 5.1)
23.2 Consent of Independent Auditors
24.1 Power of Attorney (included on the N/A
signature page of this Registration
Statement)
EXHIBIT 5.1
OPINION OF GIBSON, DUNN & CRUTCHER LLP
[Letterhead of Gibson, Dunn & Crutcher LLP]
1050 Connecticut Avenue N.W., Suite 900
Washington, DC 20036
July 20, 2000
Atlantic Coast Airlines Holdings, Inc.
515-A Shaw Road
Dulles, VA 20166
Re: Registration Statement on Form S-8 of Atlantic Coast
Airlines Holdings, Inc.
Ladies and Gentlemen:
We refer to the registration statement on Form S-8
("Registration Statement"), under the Securities Act of 1933, as
amended (the "Securities Act") filed by Atlantic Coast Airlines
Holdings, Inc., a Delaware corporation (the "Company"), with
respect to the proposed offering by the Company of up to
2,000,000 shares of the common stock of the Company, $0.01 par
value per share (the "Common Stock"), which are subject to
issuance by the Company under the 2000 Stock Incentive Plan of
Atlantic Coast Airlines Holdings, Inc.; up to 200,000 shares of
Common Stock which are subject to issuance by the Company under
certain stock options authorized by the Company's Board of
Directors in January 2000; and up to 1,000,000 shares of the
Common Stock, which are subject to issuance by the Company under
the Non-Executive Officer Stock Plan of Atlantic Coast Airlines
Holdings, Inc. (all such shares of Common Stock collectively, the
"Shares").
We have examined the originals or certified copies of such
corporate records, certificates of officers of the Company and/or
public officials and such other documents and have made such
other factual and legal investigations as we have deemed relevant
and necessary as the basis for the opinions 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 on our examination mentioned above, subject to the
assumptions stated above and relying on the statements of fact
contained in the documents that we have examined, we are of the
opinion that the issuance by the Company of the Shares has been
duly authorized and, when issued and paid for 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, and (b) the Shares are issued and paid for in
accordance with the terms of the Plan, the Shares will be duly
and validly issued, fully paid and non-assessable shares of
Common Stock.
We hereby 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 Securities Act or the General Rules and Regulations of the
Securities and Exchange Commission.
Very truly yours,
/s/GIBSON, DUNN & CRUTCHER LLP
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Atlantic Coast Airlines Holdings, Inc.
We consent to the incorporation by reference in this
Registration Statement on Form S-8 of Atlantic Coast Airlines
Holdings, Inc., of our report dated January 26, 2000, relating to
the consolidated balance sheets of Atlantic Coast Airlines
Holdings, Inc. as of December 31, 1999 and 1998, and the related
consolidated statements of operations, stockholders' equity, and
cash flows for each of the years in the three-year period ended
December 31, 1999, which report appears in the December 31, 1999
annual report on Form 10-K of Atlantic Coast Airlines Holdings,
Inc.
Our report refers to a change, effective January 1, 1999, in
the Company's method of accounting for preoperating costs.
/s/ KPMG LLP
July 20, 2000
