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As filed with the Securities and Exchange Commission on June 30, 1999
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)
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, including 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
(972) 456-2200
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(Name and address of agent for service, including telephone number)
With a copy to:
GREG R. SAMUEL
GARRETT A. DEVRIES
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 . . . . 400,000 shares $6.66(1) $2,664,000(1) $740.59(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 June 25, 1999 ($6.66 per share).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Kitty Hawk, Inc. (the "Company") hereby incorporates by reference the
Company's (i) Registration Statement on Form S-8 (No. 333-28553), as filed with
the Securities and Exchange Commission on June 5, 1997 (the "1997 Form S-8"),
including without limitation the description of Common Stock and the description
of director and officer indemnification included therein and (ii) Post-Effective
Amendment No. 1 (the "Amendment") to the 1997 Form S-8, as filed with the
Securities and Exchange Commission on February 6, 1998.
By means of the 1997 Form S-8, as amended by the Amendment, the Company
registered 100,000 shares of Common Stock to be issued pursuant to the Kitty
Hawk, Inc. Amended and Restated Employee Stock Purchase Plan (the "Employee
Stock Purchase Plan"). This Registration Statement registers an additional
400,000 shares of Common Stock issuable pursuant to the Employee Stock Purchase
Plan, as authorized by the Company's stockholders at the Company's Annual
Meeting of Stockholders held on May 28, 1999.
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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 Dallas, State of Texas, on the 30th day of June,
1999.
KITTY HAWK, INC.
By: /s/ RICHARD R. WADSWORTH
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Richard R. Wadsworth
Senior Vice President -- Finance,
Chief Financial Officer and Secretary
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 30th day of June, 1999:
<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 Chief Operating Officer, President
- ---------------------------------- and Director
Tilmon J. Reeves
/s/ CONRAD A. KALITTA Director
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Conrad A. Kalitta
/s/ RICHARD R. WADSWORTH Senior Vice President -- Finance,
- ---------------------------------- Chief Financial Officer, Secretary,
Richard R. Wadsworth Principal Financial and Accounting
Officer and Director
/s/ PHILIP J. SAUDER Director
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Philip J. Sauder
/s/ TED J. COONFIELD Vice President and Director
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Ted J. Coonfield
/s/ LEWIS S. WHITE Director
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Lewis S. White
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Exhibit
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<S> <C>
4.1 Specimen Common Stock Certificate, filed as an exhibit to the
Registrant's Registration Statement on Form S-1 (Reg. No. 333-8307)
dated as of October 1996, which exhibit is incorporated herein by
reference.
4.2 The Kitty Hawk, Inc. Amended and Restated Employee Stock Purchase Plan
("Employee Stock Purchase Plan"), filed as an exhibit to the
Registrant's Registration Statement on Form S-1 (Reg. No. 333-8307)
dated as of October 1996, which exhibit is incorporated herein by
reference.
4.3* Amendment No. 1 to the Employee Stock Purchase Plan.
5.1* Opinion of Haynes and Boone, LLP, Special Counsel of the Company, as
to the validity of Common Stock to be offered.
23.1* Consent of Haynes and Boone, LLP, contained in the opinion filed as
Exhibit 5.1.
23.2* Consent of Ernst & Young LLP.
</TABLE>
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* Filed herewith.
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EXHIBIT 4.3
AMENDMENT NO. 1 TO THE
KITTY HAWK, INC.
AMENDED AND RESTATED EMPLOYEE STOCK PURCHASE PLAN
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AMENDMENT NO. 1 TO THE
KITTY HAWK, INC.
AMENDED AND RESTATED EMPLOYEE STOCK PURCHASE PLAN
The name of the plan is the KITTY HAWK, INC. AMENDED AND RESTATED
EMPLOYEE STOCK PURCHASE PLAN (the "EMPLOYEE STOCK PURCHASE PLAN"). The Employee
Stock Purchase Plan was adopted by the Board of Directors of KITTY HAWK, INC., a
Delaware corporation (the "COMPANY"), effective as of September 3, 1996. This
Amendment No. 1 to the Employee Stock Purchase Plan (the "AMENDMENT") was
adopted by the Board of Directors of the Company on April 14, 1999.
SECTION 1. The Amendment amends and restates Section 9.1 of the
Employee Stock Purchase Plan in its entirety as follows:
9.1 The maximum number of Shares which shall be made available for sale under
the Plan shall be five hundred thousand (500,000), subject to adjustment upon
changes in capitalization of the Company as provided in Articles XIV and XV.
SECTION 2. The remaining provisions of the Plan are not modified or
changed by this Amendment.
* * * * *
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IN WITNESS WHEREOF, the Company has caused this instrument to be
executed as of April 14, 1999 by its duly authorized representative.
KITTY HAWK, INC.
By: /s/ M. TOM CHRISTOPHER
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Name: M. Tom Christopher
Title: Chairman of the Board and Chief Executive
Officer
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EXHIBIT 5.1
June 30, 1999
Kitty Hawk, Inc.
1515 West 20th Street
Dallas/Forth Worth International Airport, Texas 75261
Gentlemen:
We have acted as counsel to Kitty Hawk, Inc., a Delaware corporation (the
"COMPANY"), in connection with the preparation of a Registration Statement on
Form S-8 (the "REGISTRATION STATEMENT") to be filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended. The
Registration Statement relates to the registration of 400,000 additional shares
of the Company's common stock, par value $.01 per share (the "COMMON STOCK"),
that may be issued pursuant to the Kitty Hawk, Inc. Amended and Restated
Employee Stock Purchase Plan (the "PLAN"), as amended by that certain Amendment
No. 1 to the Kitty Hawk, Inc. Amended and Restated Employee Stock Purchase Plan
(the "AMENDMENT"). The Amendment was approved by the Company's stockholders at
the 1999 Annual Meeting of Stockholders held on May 28, 1999.
The opinions expressed herein relate solely to, are based solely upon and are
limited exclusively to, the internal substantive laws of the State of Texas, the
General Corporation Laws of the State of Delaware and applicable federal laws of
the United States of America.
In connection therewith, we have examined and relied upon the original, or
copies certified to our satisfaction, of (i) the Company's Certificate of
Incorporation, as amended (the "CERTIFICATE OF INCORPORATION"), and the
Company's Amended and Restated Bylaws (the "BYLAWS"); (ii) the minutes and
records of the corporate proceedings of the Company with respect to the adoption
of the Plan, the Amendment and related matters; (iii) the Plan; (iv) the
Amendment; (v) the Registration Statement on Form S-8 (Reg. No. 333-28553) (the
"1997 FORM S-8") filed with the Securities and Exchange Commission on June 5,
1997, relating to the registration of 100,000 shares of Common Stock issuable
under the Plan; (vi) Post-Effective Amendment No. 1 to the 1997 Form S-8, as
filed with the Securities and Exchange Commission on February 6, 1998; (vii) the
specimen Common Stock certificate filed as Exhibit 4.1 to the Company's
Registration Statement on Form S-1 (Reg. No. 333-8307); and (viii) 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, Bylaws, the Plan, the
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Kitty Hawk, Inc.
June 30, 1999
Page 2
Amendment, 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 Corporation Law will be
complied with when the shares of Common Stock are issued pursuant to the terms
of the Plan, as amended by the Amendment.
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, as amended by the
Amendment, equals or exceeds the par value of such Common Stock, we are of the
opinion that the 400,000 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, as amended by the Amendment, have been duly authorized for issuance by
the Company, and, when so issued in accordance with the terms and conditions of
the Plan, as amended by the Amendment, 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.
Very truly yours,
Haynes and Boone, LLP
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Kitty Hawk, Inc. Amended and Restated Employee
Stock Purchase Plan, of our report dated March 30, 1999, with respect to the
consolidated financial statements of Kitty Hawk, Inc. included in its Annual
Report (Form 10-K) for the year ended December 31, 1998, filed with the
Securities and Exchange Commission.
Ernst & Young LLP
Dallas, Texas
June 29, 1999
