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As filed with the Securities and Exchange Commission on March 19, 1997
Registration No. 333-______________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
KITTY HAWK, INC.
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(Exact name of registrant as specified in its charter)
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<S> <C>
DELAWARE 75-2564006
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1515 WEST 20TH STREET
P.O. BOX 612787
DALLAS/FORT WORTH INTERNATIONAL AIRPORT, TEXAS 75261
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(Address of Principal Executive Offices) (Zip Code)
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KITTY HAWK, INC. AMENDED AND RESTATED OMNIBUS SECURITIES PLAN
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(Full title of the Plan)
M. TOM CHRISTOPHER
CHIEF EXECUTIVE OFFICER
1515 WEST 20TH STREET
P.O. BOX 612787
DALLAS/FORT WORTH INTERNATIONAL AIRPORT, TEXAS 75261
(Name and address of agent for service)
(972) 456-2200
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(Telephone number, including area code, of agent for service)
With a copy to:
MICHAEL M. BOONE
GREG R. SAMUEL
Haynes and Boone, LLP
901 Main Street
3100 NationsBank Plaza
Dallas, Texas 75202-3789
(214) 651-5000
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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Title of Securities Amount Maximum Offering Proposed Maximum Amount
To Be Registered To Be Registered Price Per Share Aggregate Offering Price of Registration Fee
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<S> <C> <C> <C> <C>
Common Stock
$.01 par value . . . . 300,000 shares $11.9375 (1) $3,581,250 (1) $1,085.23 (1)
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</TABLE>
(1) The offering price per share, the aggregate offering price and the
registration fee have been calculated in accordance with paragraphs (c) and
(h)(1) of Rule 457 promulgated under the Securities Act of 1933 based on
the average of the high and low sale prices for the Company's Common Stock
reported on the NASDAQ National Market on March 14, 1997 ($11.9375 per
share).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Kitty Hawk, Inc. (the "Company") hereby incorporates by reference the
following documents filed with the Securities and Exchange Commission (the
"Commission"):
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended August 31, 1996;
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended November 30, 1996;
(c) The Company's Form 8-K dated December 4, 1996; and
(d) The description of Common Stock set forth in "Item 1.
Description of Registrant's Securities to be Registered,"
included in the Company's Registration Statement on Form 8-A
as filed with the Commission on October 1, 1996.
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, as amended,
prior to the filing of a post-effective amendment which indicates that all
securities offered hereunder have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be a part hereof from the date such documents are filed.
Item 5. Interests of Named Experts and Counsel.
Legal Matters
The validity of the shares of Common Stock being sold in this offering
will be passed upon for the Company by Haynes and Boone, LLP of Dallas, Texas,
special counsel to the Company.
Experts
The consolidated financial statements of Kitty Hawk, Inc. appearing in
Kitty Hawk, Inc.'s Annual Report on Form 10-K for the fiscal year ended August
31, 1996 have been audited by Ernst & Young LLP, independent auditors, as set
forth in their report thereon included therein and incorporated herein by
reference. Such financial statements are, and audited financial statements to
be included in subsequently filed documents will be, incorporated herein in
reliance upon the reports of Ernst & Young LLP pertaining to such financial
statements (to the extent covered by consents filed with the Securities and
Exchange Commission) given upon the authority of such firm as experts in
accounting and auditing.
Item 6. Indemnification of Directors and Officers
The Company's Certificate of Incorporation provides that no director
of the Company will be personally liable to the Company or any of its
stockholders for monetary damages arising from the director's breach of
fiduciary duty as a director. However, this does not apply with respect to any
action in which the director would be liable under Section 174 of the General
Corporation Law of the State of Delaware ("Delaware Code") nor does it apply
with respect to any liability in which the director (i) breached his duty of
loyalty to the Company or its stockholders; (ii) did not act in good faith or,
in failing to act, did not act in good faith; (iii) acted in a manner involving
intentional misconduct
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or a knowing violation of law or, in failing to act, shall have acted in a
manner involving intentional misconduct or a knowing violation of law; or (iv)
derived an improper personal benefit.
The Certificate of Incorporation of the Company provides that the
Company shall indemnify its directors and officers and former directors and
officers to the fullest extent permitted by the Delaware Code. Pursuant to the
provisions of Section 145 of the Delaware Code, the Company has the power to
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 (other
than an action by or in the right of the Company) by reason of the fact that he
is or was a director, officer, employee, or agent of the Company, against any
and all expenses, judgments, fines, and amounts paid in settlement actually and
reasonably incurred in connection with such action, suit, or proceeding. The
power to indemnify applies only if such person acted in good faith and in a
manner he reasonably believed to be in the best interest, or not opposed to the
best interest, of the Company and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
The power to indemnify applies to actions brought by or in the right
of the Company as well, but only to the extent of defense and settlement
expenses and not to any satisfaction of a judgment or settlement of the claim
itself, and with the further limitation that in such actions no indemnification
shall be made in the event of any adjudication of negligence or misconduct
unless the court, in its discretion, believes that in light of all the
circumstances indemnification should apply.
The statute further specifically provides that the indemnification
authorized thereby shall not be deemed exclusive of any other rights to which
any such officer or director may be entitled under any bylaws, agreements, vote
of stockholders or disinterested directors, or otherwise.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, or persons controlling
the Company pursuant to the foregoing provisions, the Company has been advised
that in the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act of 1933, as amended, and is therefore
unenforceable.
Item 8. Exhibits
Exhibit No. Exhibit
4.1 - Specimen Common Stock Certificate, filed as Exhibit 4.1 to the
Company's Registration Statement on Form S-1 (No. 333-8307)
dated as of October 1996 (the "1996 Form S-1") and
incorporated by reference herein.
4.2 - Certificate of Incorporation of the Company, filed as Exhibit
3.1 to the Company's Registration Statement on Form S-1 (No.
33-85698) dated as of December 1994 (the "1994 Form S-1") and
incorporated by reference herein.
4.3 - Bylaws of the Company, filed as Exhibit 3.2 to the 1994 Form
S-1 and incorporated by reference herein.
4.4 - Amendment No. 1 to the Certificate of Incorporation of the
Company, filed as Exhibit 3.3 to the 1994 Form S-1 and
incorporated by reference herein.
4.5 - Amendment No. 1 to the Bylaws of the Company, filed as Exhibit
3.4 to the 1994 Form S-1 and incorporated by reference herein.
4.6 - Kitty Hawk, Inc. Amended and Restated Omnibus Securities Plan,
filed as Exhibit 10.28 to the 1996 Form S-1 and incorporated
by referenced herein.
*5.1 - Opinion of Haynes and Boone, LLP with respect to validity of
issuance of securities.
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*23.1 - Consent of Ernst & Young LLP.
*23.2 - Consent of Haynes and Boone, LLP (included in Exhibit 5.1).
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* Filed herewith.
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;
(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 (a)(1)(i) and (a)(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 Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this 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; and
(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 the
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 this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, 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 Securities Act of 1933 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
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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 Securities Act of 1933 and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company 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 Dallas, State of Texas, on the 19th day of
March, 1997.
KITTY HAWK, INC.
By: /s/ Richard R. Wadsworth
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Richard R. Wadsworth
Senior Vice President - Finance, Chief Financial
Officer, Secretary, and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 19th day of March, 1997.
Name Capacities
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/s/ M. TOM CHRISTOPHER
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M. Tom Christopher Chairman of the Board of Directors,
and Chief Executive Officer
/s/ TILMON J. REEVES
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Tilmon J. Reeves President, Chief Operating Officer,
and Director
/s/ RICHARD R. WADSWORTH
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Richard R. Wadsworth Senior Vice President - Finance,
Chief Financial Officer (Principal
Financial and Accounting Officer),
and Director
/s/ TED J. COONFIELD
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Ted J. Coonfield Director
/s/ JAMES R. CRAIG
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James R. Craig Director
/s/ ROBERT F. GRAMMER
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Robert F. Grammer Director
/s/ LEWIS S. WHITE
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Lewis S. White Director
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EXHIBIT INDEX
Exhibit No. Description Sequential
Page No.
4.1 - Specimen Common Stock Certificate, filed as
Exhibit 4.1 to the Company's Registration Statement
on Form S-1 (No. 333-8307) dated as of October 1996
(the "1996 Form S-1") and incorporated by reference
herein.
4.2 - Certificate of Incorporation of the Company, filed
as Exhibit 3.1 to the Company's Registration
Statement on Form S-1 (No. 33-85698) dated as of
December 1994 (the "1994 Form S-1") and incorporated
by reference herein.
4.3 - Bylaws of the Company, filed as Exhibit 3.2 to the
1994 Form S-1 and incorporated by reference herein.
4.4 - Amendment No. 1 to the Certificate of Incorporation
of the Company, filed as Exhibit 3.3 to the 1994
Form S-1 and incorporated by reference herein.
4.5 - Amendment No. 1 to the Bylaws of the Company,
filed as Exhibit 3.4 to the 1994 Form S-1 and
incorporated by reference herein.
4.6 - Kitty Hawk, Inc. Amended and Restated Omnibus
Securities Plan, filed as Exhibit 10.28 to the
1996 Form S-1 and incorporated by referenced herein.
*5.1 - Opinion of Haynes and Boone, LLP with respect to
validity of issuance of securities.
*23.1 - Consent of Ernst & Young LLP.
*23.2 - Consent of Haynes and Boone, LLP (included in
Exhibit 5.1).
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* Filed herewith.
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EXHIBIT 5.1
March 19, 1997
Kitty Hawk, Inc.
1515 West 20th Street
P.O. Box 612787
Dallas/Forth Worth International Airport, Texas 75261
Gentlemen:
We have acted as special counsel to Kitty Hawk, Inc., a Delaware
corporation (the "Company"), in connection with the preparation of the
Registration Statement on Form S-8 (the "Registration Statement") filed with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended, relating to the registration of 300,000 shares of Common Stock, par
value $.01 per share (the "Common Stock"), of the Company that may be issued
pursuant to the Kitty Hawk, Inc. Amended and Restated Omnibus Securities Plan
(the "Plan"). The laws covered by the opinions expressed herein are limited to
the federal laws of the United States and the Delaware General Corporation Law.
In connection therewith, we have examined (i) the Certificate of
Incorporation and the Bylaws of the Company, each as amended; (ii) minutes and
records of the corporate proceedings of the Company with respect to the
adoption of the Plan and related matters; (iii) the Plan; and (iv) such other
documents as we have deemed necessary for the expression of the opinions
contained herein.
In making the foregoing examination, we have assumed the genuineness of
all signatures and the authenticity of all documents submitted to us as
originals, and the conformity to original documents of all documents submitted
to us as certified or photostatic copies. As to questions of fact material to
this opinion, where such facts have not been independently established, and as
to the content and form of the Certificate of Incorporation (as amended),
Bylaws (as amended), minutes, records, resolutions and other documents or
writings of the Company, we have relied, to the extent we deem reasonably
appropriate, upon representations or certificates of officers or directors of
the Company and upon documents, records and instruments furnished to us by the
Company, without independent check or verification of their accuracy. In
addition, we have assumed that all formalities required by the Company's
Certificate of Incorporation and Bylaws and the Delaware General
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Kitty Hawk, Inc.
March 19, 1997
Page 2
Corporation Law will be complied with when the shares of Common Stock are
issued pursuant to the terms of the Plan.
Based upon the foregoing, and having due regard for such legal
considerations as we deem relevant, assuming that the cash consideration
received by the Company in exchange for the issuance of Common Stock under the
Plan equals or exceeds the par value of such Common Stock, we are of the
opinion that the 300,000 shares of Common Stock covered by the Registration
Statement which may be issued from time to time in accordance with the terms of
the Plan have been duly authorized for issuance by the Company, and, when so
issued in accordance with the terms and conditions of the Plan, will be validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement and to the
reference to our firm under the caption "Legal Matters" in the Registration
Statement.
Very truly yours,
Haynes and Boone, LLP
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EXHIBIT 23.1
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-8) pertaining to the Kitty Hawk, Inc. Amended
and Restated Omnibus Securities Plan and to the incorporation by reference
therein of our report dated October 31, 1996, with respect to the consolidated
financial statements of Kitty Hawk, Inc. included in its Annual Report (Form
10-K) for the year ended August 31, 1996, filed with the Securities and
Exchange Commission.
Ernst & Young LLP
Dallas, Texas
March 18, 1997
