Registration No. 333-
As filed with the Securities and Exchange Commission on May 19, 1997
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
WESTERN PACIFIC AIRLINES, INC.
Exact name of registrant as specified in its charter)
Delaware 86-0758778
(State of Incorporation) (I.R.S. Employer Identification No.)
2864 South Circle Drive, Suite 1100
Colorado Springs, Colorado 80906
(719) 579-7737
(Address and telephone number of principal executive offices)
WESTERN PACIFIC AIRLINES, INC.
1996 RESTRICTED STOCK PLAN FOR NON-EMPLOYEE DIRECTORS;
WESTERN PACIFIC AIRLINES, INC.
AMENDED AND RESTATED 1995 DIRECTORS' OPTION PLAN;
AND
STOCK TO BE ISSUED TO ROBERT A. PEISER
UNDER WRITTEN COMPENSATION CONTRACT
(Full Title of the Plans)
Nina Ortega
Secretary
Western Pacific Airlines, Inc.
2864 South Circle Drive
Suite 1100
Colorado Springs, Colorado 80906
(719) 579-7737
(Name, address and telephone number of agent for service)
Copy to:
Allan J. Reich
D'Ancona & Pflaum
30 North LaSalle Street
Suite 2900
Chicago, Illinois 60602
(312) 580-2000
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum
Amount to be Aggregate Offering Aggregate Offering Amount of
Title of Securities to be Registered Registered Price Per Share<F4> Price <F4> Registration Fee<F4>
- --------------------------------------- ------------ ------------------- ------------------ --------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.001 per share 96,495<F1> $6.38 $615,638.10 $187.00
Common Stock, par value $.001 per share 100,000<F2> $6.38 $638,000.00 $194.00
Common Stock, par value $.001 per share 100,000<F3> $6.38 $638,000.00 $194.00
-------
Total Registration Fee $575.00
-------
<FN>
<F1>
The number of shares set forth is the number of shares remaining to be
granted under the provisions of the 1996 Restricted Stock Plan for Non-
Employee Directors (the "1996 Plan").
<F2>
The number of shares set forth is the number of additional shares which
may be purchased upon exercise of stock options which may hereafter be granted
under the provisions of the Amended and Restated 1995 Directors' Option Plan
(the "1995 Plan").
<F3>
Represents the number of shares to be issued to Robert A. Peiser
pursuant to the terms of his Employment Agreement dated November 21, 1996.
<F4>
Determined pursuant to Rule 457(h)(1) of the Securities Act of 1933, based
upon the average high and low sales prices reported on the NASDAQ National
Market on May 14, 1997.
</FN>
</TABLE>
EXPLANATORY NOTE
THIS PROSPECTUS REGISTERS (I) 96,495 SHARES OF THE COMMON STOCK OF WESTERN
PACIFIC AIRLINES, INC. (THE "COMPANY") REMAINING TO BE ISSUED UNDER THE 1996
PLAN;(II) 100,000 ADDITIONAL SHARES OF THE COMPANY'S COMMON STOCK TO BE ISSUED
UNDER THE COMPANY'S 1995 PLAN (FOR WHICH 200,000 SHARES WERE PREVIOUSLY
REGISTERED ON THE COMPANY'S FORM S-8, FILE NO. 33-80031, FILED ON DECEMBER 5,
1995 ("33-80031"); AND (III) 100,000 SHARES OF THE COMPANY'S COMMON STOCK TO
BE ISSUED TO ROBERT A. PEISER PURSUANT TO HIS EMPLOYMENT AGREEMENT DATED
NOVEMBER 21, 1996.
ALL 200,000 SHARES UNDER THE 1995 PLAN THAT WERE PREVIOUSLY REGISTERED ON 33-
80031 AS DESCRIBED ABOVE HAVE BEEN CARRIED FORWARD AND THE AMOUNT OF THE PRIOR
REGISTRATION FEE WITH RESPECT TO THESE SHARES WAS $1,310.35.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been filed by Western Pacific Airlines,
Inc. (the "Company") (File No. 0-27238) with the Securities and Exchange
Commission (the "Commission") pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), are incorporated by reference herein and shall
be deemed to be a part hereof:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996.
2. The Company's current reports on Form 8-K (i) dated December 18, 1996 and
filed January 3, 1997 and (ii) dated January 31, 1997 and filed February
11, 1997, and the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997.
3. The description of the Company's Common Stock contained in the
registration statement on Form 8-A dated November 17, 1995, filed under
Section 12(g) of the Securities Exchange Act of 1934, File No. 0-27238,
together with any amendments or reports filed for the purpose of updating
such description.
All documents subsequently filed by the Company with the Commission pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing
of a post-effective amendment to this registration statement which indicate
that all securities offered have been sold or which deregisters all securities
then remaining unsold shall be deemed to be incorporated by reference in this
registration statement and made a part hereof from their respective dates of
filing.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Generally, Section 145 of the General Corporation Law of the State of Delaware
(the "Delaware Corporation Law") permits a corporation to indemnify certain
persons made 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, by reason of the fact that such person is or
was a director or officer of the corporation or is or was serving at the
request of the corporation as a director or officer of another corporation or
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with any such action, suit or proceeding if he acted in good faith
and in a manner that 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, if he had no reasonable cause to believe that his conduct was
unlawful. If, however, any threatened, pending or completed action, suit or
proceeding is by or in the right of the corporation, the director or officer is
not permitted to be indemnified in respect of any claim, issue or matter as to
which he is adjudged to be liable to the corporation unless the Delaware Court
of Chancery determines otherwise.
Section 102(b)(7) of the Delaware Corporation Law enables a Delaware
corporation to include a provision in its certificate of incorporation limiting
the personal liability of a director to the corporation or its stockholders for
monetary damages for breaches of fiduciary duty as a director, except that such
provision may not eliminate or limit the liability of a director for (1) any
breach of the director's duty of loyalty to the corporation or its
stockholders, (2) for acts or omissions that are not in good faith or which
involve intentional misconduct or a knowing violation of the law, (3) under
Section 174 of the Delaware Corporation Law or (4) for any transaction from
which the director derived an improper personal benefit.
The Company's Restated Certificate of Incorporation provides for the
elimination of director liability (pursuant to Section 102(b)(7) of the
Delaware Corporation Law) and indemnification of its directors and officers to
the fullest extent permitted by law. In addition, the Bylaws of the Company
provide for indemnification of its directors and officers to the fullest extent
permitted by the Delaware Corporation Law and by the Restated Certificate of
Incorporation, upon a determination by a majority vote of a quorum consisting
of the disinterested directors of the Board of Directors or if a quorum is not
obtainable, or even if obtainable if a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion or by the
stockholders that indemnification is proper in the circumstances because the
applicable standards of conduct set forth in the Delaware Corporation Law have
been met.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index on page 6.
ITEM 9. UNDERTAKINGS.
(1) The Company 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;
(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;
(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 Company pursuant to
Section 13(a) or Section 15(d) of the 1934 Act that are incorporated by
reference 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.
(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 Company hereby undertakes that, for the purpose of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to 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 the time shall be deemed to be the initial bona fide offering hereof.
(3) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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 Company 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 Securities 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 Colorado Springs, Colorado, on May 15, 1997.
WESTERN PACIFIC AIRLINES, INC.
(Registrant)
By: /S/ Robert A. Peiser
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Robert A. Peiser
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below this registration statement hereby
severally constitutes and appoints Robert A. Peiser, George Leonard and Stacy
Mihalsky, and each of them acting singly, our true and lawful attorneys-in-fact
and agent, with full power of substitution and resubstitution, to sign for him
or her and in his or her name, place and stead in any and all capacities
indicated below, the registration statement on Form S-8 filed herewith and any
and all post-effective amendments to the said registration statement, and to
file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary fully to all
intents and purposes as he might or could do in person thereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration
statement or amendment thereto has been signed below by the following persons
in the capacities and on the date indicated below.
SIGNATURE TITLE DATE
/S/ Robert A. Peiser
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President and Chief Executive Officer (Principal Executive Officer), Director
May 15, 1997
/S/ George Leonard
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Vice President Finance and Chief Financial Officer (Principal Financial Officer)
May 15, 1997
/S/ Stacy A. Mihalsky
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Controller (Chief Accounting Officer)
May 15, 1997
/S/ Edward R. Beauvais
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Chairman of the Board
May 15, 1997
/S/ Clayton I. Bennett
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Director
May 15, 1997
/S/ Glenn M. Stinchcomb
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Director
May 15, 1997
/S/ Ivan Irwin, Jr.
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Director
May 15, 1997
/S/ James R. Wikert
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Director
May 15, 1997
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
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3.1 Restated Certificate of Incorporation of the Company (incorporated
by reference to Exhibit 3.1 to the Company's registration
statement on Form S-1 (Registration No. 33-97862)).
3.2 Restated By-laws of the Company (incorporated by reference to
Exhibit 3.3 to the Company's annual report on Form 10-K for the
fiscal year ended December 31, 1996.
5 Opinion of D'Ancona & Pflaum as to the legality of the Company's
Common Stock.
23.1 Consent of D'Ancona & Pflaum (included in the Opinion filed as
Exhibit 5 hereto).
23.2 Consent of Arthur Andersen LLP.
24 Power of Attorney is included on the signature pages of the
registration statement.
Exhibit 5
May 15, 1997
Western Pacific Airlines, Inc.
2864 South Circle Drive
Suite 1100
Colorado Springs, Colorado 80906
Attn: Robert A. Peiser, President and Chief Executive Officer
Dear Mr. Peiser:
We have acted as special counsel for Western Pacific Airlines, Inc. (the
"Company") in connection with the preparation, execution and filing of a
Registration Statement under the Securities Act of 1933 on Form S-8 (the
"Registration Statement") relating to the registration of 96,495 shares of
Western Pacific Airlines, Inc. Common Stock, $.001 par value ("Common Stock"),
which may be issued to participants in the Western Pacific Airlines, Inc. 1996
Restricted Stock Plan for Non-Employee Directors, 100,000 shares of Common
Stock which may be issued to participants in the Western Pacific Airlines, Inc.
Amended and Restated 1995 Directors' Option Plan (collectively, the "Plans"),
and 100,000 shares of Common Stock issuable to Robert A. Peiser pursuant to the
terms of his Employment Agreement (the "Employment Agreement") with the Company
dated November 21, 1996.
In connection with this opinion, we have made such factual inquiries and have
examined or caused to be examined such questions of law as we have deemed
appropriate. On the basis of such inquiries or examinations, it is our opinion
that any shares of Common Stock issued by the Company pursuant to the Plans,
and any shares of Common Stock issued to Mr. Peiser pursuant to the Employment
Agreement, will be duly authorized, validly issued, 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 in such Registration Statement.
Very truly yours,
D'Ancona & Pflaum
By: /S/ Allan J. Reich
------------------------
Allan J. Reich, Partner
AJR/MAF/CEW
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 4, 1997
included in the Company's Form 10-K for the year ended December 31, 1996 and to
all references to our Firm included in this registration statement.
/S/ ARTHUR ANDERSEN LLP
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Phoenix, Arizona
May 12, 1997.
