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As filed with the Securities and Exchange Commission on February 6, 1998
Registration No. 333-28553
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
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)
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)
KITTY HAWK, INC. AMENDED AND RESTATED EMPLOYEE STOCK PURCHASE 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
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(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
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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 Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997;
(d) The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1997;
(e) The Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1997;
(f) The Company's Form 8-K dated December 4, 1996;
(g) The Company's Form 8-K dated September 17, 1997;
(h) The Company's Amendment No. 1 to its Form 8-K dated
November 6, 1997;
(i) The Company's Form 8-K dated November 19, 1997;
(j) The Company's Transition Report on Form 10-K for the
transition period from September 1, 1996 to December 31, 1996;
(k) The Company's Amendment to its Transition Report on Form
10-K/A filed with the Commission on April 7, 1997; and
(l) 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 and Transition Reports on Form 10-K and 10-K/A for the transition
period from September 1, 1996 to December 31, 1996 have been audited by Ernst &
Young LLP, independent auditors, as set forth in their reports 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.
The combined financial statements of American International Airways, Inc.
and related companies as of December 31, 1996 and 1995 and for each of the three
years in the period ended December 31, 1996, and the related financial schedule
incorporated by reference from Kitty Hawk, Inc.'s Form 8-K dated November 19,
1997 have been audited by Deloitte & Touche LLP, independent auditors, as stated
in their reports incorporated herein by reference (which reports express an
unqualified opinion and include an explanatory paragraph which indicates that
there are matters that raise substantial doubt about the ability of American
International Airways, Inc. and related companies to continue as a going
concern). The statements of certain assets sold of AIA for the years ended
December 31, 1996 and 1995, and the related statements of revenues and direct
expenses for the years ended December 31, 1996 and 1995 incorporated by
reference from Kitty Hawk, Inc.'s Amendment No. 1 to Form 8-K dated November 6,
1997 have been audited by Deloitte & Touche LLP, independent auditors, as stated
in their report incorporated herein by reference. Such reports have been so
incorporated in reliance upon the reports of such firm given upon their
authority as experts in accounting and auditing.
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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 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
<TABLE>
<CAPTION>
Exhibit No. Exhibit
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<S> <C> <C>
4.1 - Specimen Common Stock Certificate, filed as Exhibit 4.1 to the Company's Registration Statement on Form
S-1 (Reg. 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 (Reg. No. 33-85698) dated as of December 1994 (the "1994 Form S-1") and incorporated
by reference herein.
</TABLE>
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<TABLE>
<S> <C> <C>
4.3 - 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.
4.4 - Amended and Restated Bylaws of the Company, filed as Exhibit 3.3 to the Company's Registration Statement
on Form S-4 (Reg. No. 333-43645) and incorporated by reference herein.
4.6 - Kitty Hawk, Inc. Amended and Restated Employee Stock Purchase Plan, filed as Exhibit 10.30 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).
23.3* - Consent of Deloitte & Touche, LLP.
</TABLE>
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* Filed herewith.
** Previously filed.
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
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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 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 AND POWER OF ATTORNEY
THE COMPANY:
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 Amendment to the
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Dallas, State of Texas, on the 29th day of
January, 1998.
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 Amendment to
the Registration Statement has been signed by the following persons in the
capacities indicated on the 29th day of January, 1998.
<TABLE>
<CAPTION>
Name Capacities
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<S> <C>
/s/ M. TOM CHRISTOPHER Chairman of the Board of Directors,
- ------------------------------------------- and Chief Executive Officer
M. Tom Christopher
/s/ TILMON J. REEVES President and Director
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Tilmon J. Reeves
/s/ CONRAD A. KALITTA Vice Chairman and Director
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Conrad A. Kalitta
/s/ RICHARD R. WADSWORTH Senior Vice President - Finance and
- ------------------------------------------- Chief Financial Officer (Principal Financial
Richard R. Wadsworth and Accounting Officer) and Secretary
/s/ PHILIP J. SAUDER Director
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Philip J. Sauder
/s/ TED J. COONFIELD Director
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Ted J. Coonfield
/s/ GEORGE W. KELSEY Director
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George W. Kelsey
/s/ LEWIS S. WHITE Director
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Lewis S. White
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
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<S> <C> <C>
4.1 - Specimen Common Stock Certificate, filed as Exhibit 4.1 to the
Company's Registration Statement on Form S-1 (Reg. 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 (Reg. No.
33-85698) dated as of December 1994 (the "1994 Form S-1") and
incorporated by reference herein.
4.3 - 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.
4.4 - Amended and Restated Bylaws of the Company, filed as Exhibit 3.3 to
the Company's Registration Statement on Form S-4 (Reg. No. 333-43645)
and incorporated by reference herein.
4.6 - Kitty Hawk, Inc. Amended and Restated Employee Stock Purchase
Plan, filed as Exhibit 10.30 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).
23.3* - Consent of Deloitte & Touche, LLP.
</TABLE>
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* Filed herewith.
** Previously filed.
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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 Employee Stock Purchase 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, and our report dated February 7,
1997, with respect to the consolidated financial statements of Kitty Hawk, Inc.
included in its Transition Report (Form 10-K) and its Transition Report, as
amended (Form 10-K/A) for the four months ended December 31, 1996, filed with
the Securities and Exchange Commission.
Ernst & Young LLP
Dallas, Texas
January 30, 1998
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EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
To the Board of Directors and Stockholders of
American International Airways, Inc. and Related Companies
Ypsilanti, Michigan
We consent to the incorporation by reference in this Registration Statement No.
333-28553 of Kitty Hawk, Inc. on Form S-8 of: our report relating to the
combined financial statements of American International Airways, Inc. and
related companies (collectively the "Companies") dated October 16, 1997 (which
report expresses an unqualified opinion and includes an explanatory paragraph
which indicates that there are matters that raise substantial doubt about the
Companies' ability to continue as a going concern) appearing in the Form 8K
dated November 19, 1997, our report dated October 16, 1997 relating to the
financial statement schedule of the Companies and to our report relating to the
statements of certain assets sold of AIA dated September 29, 1997 appearing in
Amendment No. 1 to Form 8K of Kitty Hawk, Inc. dated November 6, 1997.
We also consent to the reference to us under the Heading "Experts" in the
Prospectus, which is part of the Registration Statement.
Ann Arbor, Michigan
February 3, 1998
