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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)
Kitty Hawk, Inc.
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(Name of Issuer)
Common Stock, par value $.01 per share
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(Title of Class of Securities)
498326 10 7
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(CUSIP Number)
Gregory R. Samuel, Haynes and Boone, LLP
3100 NationsBank Plaza, Dallas, TX 75202
(214) 651-5645
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
January 21, 1999
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box [ ].
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Section 240.13d-7(b) for
other persons to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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SCHEDULE 13D
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CUSIP No. 498326 10 7 Page 2 of 6 Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
M. Tom Christopher
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
N/A
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) 9
N/A
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
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7 SOLE VOTING POWER
10,047,586
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NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 0
OWNED BY --------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 5,948,436
WITH
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10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
10,047,586
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
N/A
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
59.1%
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14 TYPE OF REPORTING PERSON
IN
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Item 1. Security and Issuer
This statement relates to the common stock, par value $0.01 per share ("Common
Stock"), of Kitty Hawk, Inc. (the "Company"). The address of the principal
executive offices of the Company is 1515 West 20th Street, Dallas/Fort Worth
International Airport, Texas 75261.
Item 2. Identity and Background
(a) M. Tom Christopher.
(b) 1515 West 20th Street, Dallas/Fort Worth International Airport, Texas
75261.
(c) Mr. Christopher is the Chairman of the Board and Chief Executive Officer of
the Company.
(d) Mr. Christopher has not, during the last five years, been convicted in a
criminal proceeding (excluding traffic violations and similar
misdemeanors).
(e) Mr. Christopher has not, during the last five years, been a party to a
civil proceeding of a judicial or administrative body of competent
jurisdiction where as a result of such proceeding he was or is subject to a
judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
(f) Mr. Christopher is a citizen of the United States.
Item 3. Source and Amount of Funds or Other Consideration.
The filing of this statement is necessitated by a change in the beneficial
ownership of and voting power of Mr. Christopher arising solely by virtue of the
execution by Mr. Christopher, Conrad A. Kalitta, the Company and others of an
Agreement dated January 21, 1999 (the "Agreement"), pursuant to which Mr.
Kalitta irrevocably granted Mr. Christopher the right to vote all shares of
Common Stock owned by Mr. Kalitta until June 30, 2000.
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Item 4. Purposes of the Transaction.
Not applicable.
Item 5. Interest in Securities of the Issuer.
(a) Mr. Christopher beneficially owns 10,047,586 shares of
Common Stock, which represents approximately 59.1% of the
outstanding shares of Common Stock. Of these 10,047,586
shares, Mr. Christopher (a) owns 5,948,436 shares of
Common Stock directly and (b) has the power to vote
4,099,150 shares of Common Stock owned by Mr. Kalitta
until June 30, 2000.
(b) Mr. Christopher has sole voting power over 10,047,586
shares of Common Stock and does not share voting power
over any shares of Common Stock. Mr. Christopher has sole
dispositive power over 5,948,436 shares of Common Stock
and does not share dispositive power over any shares of
Common Stock.
(c) In the past 60 days, Mr. Christopher has not engaged in
any transactions in respect of shares of Common Stock.
(d) With respect to the 5,948,436 shares of Common Stock that
Mr. Christopher owns directly, Mr. Christopher does not
know of any other person who has the right to receive or
the power to direct the receipt of dividends from, or the
proceeds from the sale of, such shares of Common Stock.
With respect to the 4,099,150 shares of Common Stock owned
directly by Mr. Kalitta that Mr. Christopher has the power
to vote through June 30, 2000, Mr. Kalitta has the right
to receive any dividends on or the proceeds from the sale
of any such shares.
(e) Not applicable.
Item 6. Contracts, Arrangements Understandings or Relations with Respect to
Securities of the Issuer.
Mr. Christopher, Mr. Kalitta, the Company and others entered into the Agreement
as of January 21, 1999. Pursuant to the Agreement, among other things, Mr.
Kalitta irrevocably granted Mr. Christopher the right to vote all shares of
Common Stock owned by Mr. Kalitta until June 30, 2000.
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Item 7. Material to be filed as Exhibits.
7.1 Agreement, dated as of January 21, 1999, by and among M. Tom Christopher,
Conrad A. Kalitta, Kitty Hawk, Inc. and others.
* * * * *
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Date: January 31, 1999
/s/ M. TOM CHRISTOPHER
--------------------------------
M. Tom Christopher
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
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<S> <C>
7.1 Agreement, dated as of January 21, 1999, by and among M. Tom
Christopher, Conrad A. Kalitta, Kitty Hawk, Inc. and others.
</TABLE>
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EXHIBIT 7.1
AGREEMENT
THIS AGREEMENT (the "AGREEMENT") is entered into January 21, 1999, by
and among, Kitty Hawk, Inc., a Delaware corporation (collectively with its
subsidiaries, unless the context otherwise requires, the "COMPANY"), M. Tom
Christopher ("CHRISTOPHER"), Conrad A. Kalitta ("KALITTA"), Kalitta Motorsports,
L.L.C., a Michigan limited liability company ("MOTORSPORTS"), American
International Airways, Inc., a Michigan corporation ("AIA"), American
International Travel, Inc., a Michigan corporation ("AIT"), Flight One
Logistics, Inc., a Michigan corporation ("FOL"), Kitty Hawk Charters, Inc.
(f/k/a Kalitta Flying Service, Inc.), a Michigan corporation ("KHC"), and O.K.
Turbines, Inc., a Michigan corporation ("OKT"). AIA, AIT, FOL, KHC and OKT shall
be collectively referred to as the "KALITTA COMPANIES."
RECITALS
A. The parties hereto have entered into certain contractual arrangements,
including, among others, (i) a Separation Agreement dated as of April
17, 1998, by and among the parties hereto, among others, as amended to
date (as amended, the "SEPARATION AGREEMENT"); (ii) a Stockholders'
Agreement dated as of November 19, 1997, by and among the Company,
Christopher and Kalitta, as amended by the Separation Agreement (as
amended, the "STOCKHOLDERS' AGREEMENT"); (iii) an Agreement and Plan of
Merger dated as of September 22, 1997, by and among certain of the
parties hereto, as amended to date (the "MERGER AGREEMENT"); (iv) a
Racing Entity Purchase Agreement, dated as of November 19, 1997, by and
among AIA and Motorsports (the "RACING ENTITY PURCHASE AGREEMENT"); and
(v) a Race Shop Facilities Lease, dated as of November 19, 1997, by and
among AIA and Motorsports (the "RACE SHOP LEASE").
B. The parties desire to amend certain provisions of the Stockholders'
Agreement, the Merger Agreement, the Racing Entity Purchase Agreement
and the Race Shop Lease.
NOW, THEREFORE, in consideration of the premises, the terms and
conditions set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
AGREEMENT
1. Demand Registration Rights. The parties hereto hereby amend the
Stockholders' Agreement, in accordance with Section 8.4 thereof, by deleting
Section 6.1.1(a) of the Stockholders' Agreement in its entirety and replacing it
with the following:
(a) General. At any time prior to June 30, 2000, Kalitta
may make a single request, by a written notice signed by Kalitta and
delivered to the Company (the "FIRST DEMAND REQUEST"), that the
Company effect the registration under the Securities Act of no less
than exactly 2,900,000 shares of Common Stock that constitute
Registrable Securities (the "SHARES") and are beneficially owned by
any Kalitta Stockholder. In the event the managing underwriter or
underwriters shall advise Kalitta that the amount of Shares proposed
to be included in the registration statement filed pursuant to such
First
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Demand Request (the "FIRST DEMAND REGISTRATION") by Kalitta exceeds
the number of such Shares that can be sold in such offering within a
price range acceptable to Kalitta, the Shares to be included in such
First Demand Registration shall be reduced to the number of Shares
that the Company and Kalitta are so advised can be sold in such
First Demand Registration without a material adverse effect on the
price of, or the likelihood of successful completion of, such
offering. In the event, and only in the event, that not all of the
Shares are sold pursuant to the First Demand Request as a result of
the inability of the underwriters to sell such Shares at a price
acceptable to Kalitta, Kalitta will be entitled to make a second
single demand request on behalf of himself and any other Kalitta
Stockholder whose Shares were excluded from the First Demand
Registration by a written notice signed by Kalitta and delivered to
the Company that the Company effect the registration (the "SECOND
DEMAND REGISTRATION," and, collectively with the First Demand
Registration, the "DEMAND REGISTRATIONS" and each individually a
"DEMAND REGISTRATION") of those Shares not sold in the First Demand
Registration (the "SECOND DEMAND REQUEST," and, collectively with
the First Demand Request, the "DEMAND REQUESTS" and each
individually a "DEMAND REQUEST") at any time prior to June 30, 2000.
The Company shall file a registration statement under the Securities
Act necessary to effect a Demand Registration on or before the
Required Filing Date. The offering of Shares pursuant to the First
Demand Request and the Second Demand Request shall both be in the
form of a firm commitment underwritten offering, and Morgan Stanley
Dean Witter & Co., BT Alex. Brown Incorporated, or any successors
thereof, or such other nationally recognized investment banking firm
or firms as are mutually agreed upon by the Company and Kalitta,
shall manage such underwritten offerings of the Shares. The Company
shall have the exclusive right to grant to the managing underwriter
or managing underwriters an option to sell additional shares of
Common Stock for the purpose of covering over-allotments, if any, in
the offering of Shares pursuant to the First Demand Request and the
Second Demand Request. The number of Registrable Securities
constituting Shares shall be appropriately adjusted in the event
that, subsequent to January 21, 1999, the outstanding shares of
Common Stock of the Company shall have been increased, decreased,
changed into or exchanged for, a different number or kind of shares
or securities through a reorganization, recapitalization, stock
split, reverse stock split or other similar change in the Company's
capitalization. In no event shall the Company be required pursuant
to this Section 6.1.1 to effect a shelf registration pursuant to
Rule 415 promulgated under the Securities Act.
2. Limit on Sales of Common Stock. The parties hereto hereby amend the
Stockholders' Agreement, in accordance with Section 8.4 thereof, by adding the
following to the end of Section 6.1.1:
(g) Prior to June 30, 2000, Kalitta agrees to not sell
more than 25,000 shares of Common Stock in any three month period
except pursuant to a Demand Registration.
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3. Race Shop Lease.
(a)The parties hereto hereby amend the Race Shop Lease by deleting
Section 3 of the Race Shop Lease in its entirety and replacing it with the
following:
3.Term. This lease shall be for a term commencing on November 17,
1997 (the "commencement date") and ending on June 30, 1999.
(b)The parties hereto hereby amend the Race Shop Lease by deleting
Section 4 of the Race Shop Lease in its entirety and replacing it with the
following:
4. Rental. Through December 31, 1998, Tenant shall pay to Landlord
as annual rent the sum of $12.00, payable in monthly installments,
in advance, on the first day of each month. After December 31, 1998,
Tenant shall pay to Landlord as annual rent $5.50 per square foot of
leased space in accordance with Exhibit A attached hereto, payable
in monthly installments, in advance, on the first day of each month.
TENANT ASSURES LANDLORD THAT IT SHALL VACATE AND LEAVE EMPTY AND IN
PROPER CONDITION THE LEASED SPACE BY JUNE 30, 1999.
4. Voting by Kalitta prior to June 30, 2000. Until June 30, 2000,
Kalitta hereby irrevocably appoints Christopher as his proxy to vote all KTTY
Voting Securities (as defined in the Separation Agreement) Beneficially Owned
(as defined in the Stockholders' Agreement) by Kalitta, at any meeting of
stockholders (whether annual or special and whether or not an adjourned meeting)
of the Company, or express written consent or dissent in any action taken in
lieu of such a meeting. This proxy is irrevocable and is coupled with an
interest sufficient in law to support an irrevocable proxy. This proxy shall
revoke any other proxy granted by Kalitta with respect to the KTTY Voting
Securities, and Kalitta shall not grant any subsequent proxies with respect to
the KTTY Voting Securities.
5. Amendment to Merger Agreement. The parties hereto agree that Section
9.4 of the Merger Agreement is hereby deleted in its entirety.
6. Amendment to Racing Entity Purchase Agreement. The parties hereto
hereby amend the Racing Entity Purchase Agreement by deleting the last sentence
of Section 4.1 of the Racing Entity Purchase Agreement in its entirety and
replacing it with the following:
Until November 19, 1999, Seller shall make available to Racing
Entity Thursdays through Sundays for racing activities on weekends
of scheduled NHRA races (without a pilot or fuel, both of which
shall be provided by the Racing Entity at its expense) either (i) a
Learjet at $275.00 per block hour or (ii) a MU-2 aircraft at $150.00
per block hour. In addition, until November 19, 1999, Seller shall
make available to Conrad A. Kalitta (without a pilot or fuel, both
of which shall be provided by Conrad A. Kalitta at his expense)
either (i) a Learjet at $275.00 per block hour or (ii) a MU-2
aircraft at $150.00 per block hour, for use at such times as Seller
reasonably determines that such aircraft will not be utilized by
Seller in revenue service.
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7. Miscellaneous.
7.1 Entire Agreement. This Agreement contains the entire understanding
of the parties with respect to the subject matter hereof and may be amended only
by an agreement in writing executed by the parties hereto.
7.2 Headings. Descriptive headings are for convenience only and shall
not control or affect the meaning or construction of any provision of this
Agreement.
7.3 Number; Gender. Whenever the singular number is used herein, the
same shall include the plural where appropriate, and words of any gender shall
include each other gender where appropriate.
7.4 Notices. All notices, consents, requests, instructions, approvals
and other communications provided for herein and all legal process in regard
hereto shall be validly given, made or served, if in writing and sent by U.S.
certified mail, return receipt requested:
if to the Company, M. Tom Christopher
AIA, AIT, FOL, Chairman of the Board
KHC, OKT or and Chief Executive Officer
Christopher: 1515 West 20th Street
DFW Airport, Texas 75261
with a copy to: Haynes and Boone, LLP
901 Main Street, Suite 3100
Dallas, Texas 75202-3789
Attention: Greg R. Samuel, Esq.
if to Kalitta or Conrad A. Kalitta
Motorsports 2395 South Huron Parkway
Ann Arbor, Michigan 48104
with a copy to: David N. Parsigian, Esq.
Miller, Canfield, Paddock & Stone, P.L.C.
101 N. Main Street, 7th Floor
Ann Arbor, Michigan 48108
7.5 Enforceability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated. It is hereby stipulated and
declared to be the intention of the parties that the parties would have executed
the remaining terms, provisions, covenants and restrictions without including
any such term which may be hereafter declared invalid, void or unenforceable. In
addition, the parties agree to use their commercially reasonable efforts to
agree upon and substitute a valid and enforceable term,
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provision, covenant or restriction for any of such that is held invalid, void or
unenforceable by a court of competent jurisdiction.
7.6 Law Governing. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Texas, without regard
to any conflict of laws provisions thereof; provided that Section 3 hereof
relating to amendments to the Race Shop Lease shall be construed in accordance
with and governed by the laws of the State of Michigan without regard to any
conflict of laws provisions thereof.
7.7 Jurisdiction and Venue. The state or federal courts located in
Dallas County, Texas shall have exclusive jurisdiction and venue over all
disputes arising out of or related to this Agreement and will be the sole proper
forum in which the parties and any of their officers, directors, employees,
representatives and affiliates shall adjudicate any such dispute. The parties
agree that this choice of jurisdiction and venue is enforceable by the issuance
of injunctive relief against the parties and that its violation constitutes
irreparable harm for which there is an inadequate remedy at law.
7.8 Legal Fees and Expenses. The prevailing party in any legal
proceeding based upon this Agreement shall be entitled to reasonable attorney's
fees and court costs, in addition to and other recoveries allowed by law.
7.9 Binding Effect; No Assignment. This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the successors and assigns of
the parties hereto. Nothing in this Agreement, expressed or implied, is intended
to confer on any person or entity other than the parties hereto or their
respective heirs, successors, executors, administrators and assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement. No
party to this Agreement may assign its rights or delegate its obligations
hereunder (whether voluntarily, involuntarily, or by operation of law) without
the prior written consent of the other party. Any such attempted assignment
shall be null and void.
7.10 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7.11 Section Headings. The headings contained in this Agreement are for
reference purposes only and will not affect in any way the meaning or
interpretation of this Agreement.
7.12 No Construction Against Drafting Party. The parties agree that
each has been represented by competent legal counsel in connection with this
Agreement and that this Agreement shall not be construed against the party on
whose behalf this Agreement has been drafted.
7.13 Cooperation. The parties agree to cooperate to the extent
necessary to give full effect to the provisions of this Agreement.
7.14 REMEDIES. EACH PARTY HERETO HEREBY ACKNOWLEDGES AND AGREES THAT
IRREPARABLE HARM WOULD OCCUR IN THE EVENT ANY OF THE PROVISIONS OF THIS
AGREEMENT
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WERE NOT PERFORMED IN ACCORDANCE WITH THEIR SPECIFIC TERMS OR WERE OTHERWISE
BREACHED. IT IS ACCORDINGLY AGREED THAT THE PARTIES SHALL BE ENTITLED TO
SPECIFIC PERFORMANCE HEREUNDER, INCLUDING, WITHOUT LIMITATION, AN INJUNCTION OR
INJUNCTIONS TO PREVENT AND ENJOIN BREACHES OF THE PROVISIONS OF THIS AGREEMENT
AND TO ENFORCE SPECIFICALLY THE TERMS AND PROVISIONS HEREOF IN ANY STATE OR
FEDERAL COURT IN ADDITION TO ANY OTHER REMEDY TO WHICH THEY MAY BE ENTITLED AT
LAW OR IN EQUITY. ANY REQUIREMENTS FOR THE SECURING OR POSTING OF ANY BOND WITH
SUCH REMEDY ARE WAIVED. ALL RIGHTS AND REMEDIES UNDER THIS AGREEMENT ARE
CUMULATIVE, NOT EXCLUSIVE, AND SHALL BE IN ADDITION TO ALL RIGHTS AND REMEDIES
AVAILABLE TO EITHER PARTY AT LAW OR IN EQUITY.
* * * * *
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The parties hereto have duly executed this Agreement as of the date
first above written.
KITTY HAWK, INC.
By: /s/ M. TOM CHRISTOPHER
------------------------------------------
Name: M. Tom Christopher
Title: Chairman and Chief Executive Officer
/s/ M. TOM CHRISTOPHER
- ------------------------------------------------
M. Tom Christopher
/s/ CONRAD A. KALITTA
- ------------------------------------------------
Conrad A. Kalitta
KALITTA MOTORSPORTS, L.L.C.
By: /s/ CONRAD A. KALITTA
------------------------------------------
Name: Conrad A. Kalitta
Title: Authorized Member
AMERICAN INTERNATIONAL
AIRWAYS, INC.
By: /s/ TILMON J. REEVES
------------------------------------------
Name: Tilmon J. Reeves
Title: President
AMERICAN INTERNATIONAL
TRAVEL, INC.
By: /s/ TILMON J. REEVES
------------------------------------------
Name: Tilmon J. Reeves
Title: President
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FLIGHT ONE LOGISTICS, INC.
By: /s/ TILMON J. REEVES
------------------------------------------
Name: Tilmon J. Reeves
Title: President
KITTY HAWK CHARTERS, INC. (F/K/A
KALITTA FLYING SERVICE, INC.)
By: /s/ TILMON J. REEVES
------------------------------------------
Name: Tilmon J. Reeves
Title: President
O.K. TURBINES, INC.
By: /s/ TILMON J. REEVES
------------------------------------------
Name: Tilmon J. Reeves
Title: President
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