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As filed with the Securities and Exchange Commission on August 18, 1997
Registration No. 333-_________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
------------------
VALUJET, INC.
(Exact name of registrant as specified in its charter)
------------------
Nevada 58-2189551
(State or other Jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1800 PHOENIX BOULEVARD
SUITE 126
ATLANTA, GEORGIA 30349
(Address, including zip code, including area code,
of registrant's principal executive offices)
VALUJET, INC. 1994 EMPLOYEE STOCK TRUST
(Full title of the plan)
MICHAEL D. ACKS
1800 PHOENIX BOULEVARD, SUITE 126
ATLANTA, GEORGIA 30349
(770) 907-2580
(Name, address, including zip code, and telephone number
including area code, of agent for service)
------------------------
Copies to:
ROBERT B. GOLDBERG, ESQ.
ELLIS, FUNK, GOLDBERG, LABOVITZ & DOKSON, P.C.
SUITE 400
3490 PIEDMONT ROAD, N.E.
ATLANTA, GEORGIA 30305
(404) 233-2800
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
========================================================================================================
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Securities to be Offering Price Aggregate Registration
to be Registered Registered Per Share (1) Offering Price (2) Fee
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value per share 39,680 $5.72 $226,920 $100.00
========================================================================================================
</TABLE>
(1) The average of the high and low sales prices of the Common Stock as reported
on the NASDAQ Stock Market on August 13, 1997.
<PAGE>
TABLE OF CONTENTS
Item 1: Plan Information *
Item 2: Registrant Information and Employee Plan Annual Information *
Item 3: Incorporation of Documents by Reference 2
Item 4: Description of Securities 3
Item 5: Interests of Named Experts and Counsel 3
Item 6: Indemnification of Directors and Officers 3
Item 7: Exemption From Registration Claimed 4
Item 8: Exhibits 4
Item 9: Undertakings 5
* Separately given to participants. Pursuant to the rules for filing a
Registration Statement on Form S-8, such information is contained in a
document which does not constitute a part of this Registration Statement but
which shall, together with the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II hereof, constitute a
prospectus under Section 10(a) of the Securities Act of 1933.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1: PLAN INFORMATION
Omitted.
ITEM 2: REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Omitted.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by ValuJet, Inc. (the "Company") with the
Commission are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended December
31, 1997.
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1997 and June 30, 1997, and the Company's Current Reports on
Form 8-K dated July 10, 1997 and August 13, 1997.
(c) The description of the Company's Common Stock contained in its
Registration Statement on Form 8-A dated September 29, 1995.
In addition to the foregoing, 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, prior to the filing of a post-effective amendment
indicating that all of the securities offered hereunder have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be part hereof
from the date of filing of such documents. Any statement contained in a
document incorporated by reference in this Registration Statement shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any subsequently filed
document that is also incorporated by reference herein modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Common Stock offered hereby has been passed on for the
Company by Ellis, Funk, Goldberg, Labovitz & Dokson, P.C., Atlanta, Georgia.
Certain shareholders of Ellis, Funk, Goldberg, Labovitz & Dokson, P.C. own
approximately 23,000 shares of Common Stock of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Articles of Incorporation provide that directors of the
Company will not be personally liable for monetary damages to the Company for
certain breaches of their fiduciary duty as directors to the fullest extent
allowable by Nevada law. Under current Nevada law, directors would remain
liable for: (i) acts or omissions which involve intentional misconduct, fraud
or a knowing violation of law, and (ii) approval of certain illegal dividends or
redemptions. In appropriate circumstances, equitable remedies or nonmonetary
relief, such as an injunction, will remain available to a stockholder seeking
redress from any such violation. In addition, the provision applies only to
claims against a director arising out of his role as a director and not in any
other capacity (such as an officer or employee of the Company).
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The Company also has the obligation, pursuant to the Company's By-laws, to
indemnify any director or officer of the Company for all expenses incurred by
them in connection with any legal action brought or threatened against such
person for or on account of any action or omission alleged to have been
committed while acting in the course and scope of the person's duties, if the
person acted in good faith and in a manner which the person reasonably believed
to be in or not opposed to the best interests of the Company, and with respect
to criminal actions, had no reasonable cause to believe the person's conduct was
unlawful, provided that such indemnification is made pursuant to then existing
provisions of Nevada Revised Statutes at the time of any such indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
4 - ValuJet, Inc. 1994 Employee Stock Trust.
5 - Opinion of Ellis, Funk, Goldberg, Labovitz & Dokson, P.C.
23(a) - Consent of Ernst & Young LLP
23(b) - Consent of Ellis, Funk, Goldberg, Labovitz & Dokson, P.C.
(included in Exhibit 5).
24 - Power of Attorney (included on signature page).
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; and
(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)(i) and (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 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the 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
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<PAGE>
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.
(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 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 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 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 Act
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 Act and will be governed by the final adjudication of
such issue.
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<PAGE>
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 Atlanta, State of Georgia on the 18th day of August,
1997.
VALUJET, INC.
By: /s/ ROBERT L. PRIDDY
---------------------------------------
Robert L. Priddy
Chairman of the Board and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints ROBERT L. PRIDDY and LEWIS H. JORDAN, and ether
of them (with full power in each to act alone), his true and lawful attorneys-
in-fact, with full power of substitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto each said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact, or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated below.
/s/ ROBERT L. PRIDDY Chairman of the Board August 18, 1997
------------------------------ (principal executive officer)
Robert L. Priddy and Director
/s/ LEWIS H. JORDAN President and Director August 18, 1997
------------------------------
Lewis H. Jordan
/s/ STEPHEN C. NEVIN Senior Vice President-Finance August 18, 1997
------------------------------ (principal financial officer)
Stephen C. Nevin
[SIGNATURES CONTINUED ON NEXT PAGE]
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<PAGE>
/s/ MICHAEL D. ACKS Controller (principal
------------------------------ accounting officer) August 18, 1997
Michael D. Acks
/s/ DON L. CHAPMAN Director August 18, 1997
------------------------------
Don L. Chapman
/s/ D. JOSEPH CORR Director August 18, 1997
- -----------------------------
D. Joseph Corr
- ------------------------------- Director
Timothy P. Flynn
- ------------------------------- Director
Maurice J. Gallagher, Jr.
-7-
<PAGE>
EXHIBIT 4
VALUJET 1994 EMPLOYEE STOCK TRUST
THIS TRUST AGREEMENT, to be known as the VALUJET 1994 EMPLOYEE STOCK
TRUST, is made and entered into this 28th day of June, 1994, between VALUJET
AIRLINES, INC., a Nevada corporation (the "Company") as the Grantor, and STEPHEN
C. NEVIN, as Trustee.
The Company has this day transferred to the Trustee Nine Thousand Nine
Hundred Ten (9,910) shares of the Company's Common Stock, $.01 par value per
share (which 9,910 shares of stock, along with any other stock in the Company
purchased by the Trustee or received by the Trustee as the result of any stock
dividend, stock split or other capital change in the Company, is hereinafter
referred to as the "Stock") as the initial corpus of the VALUJET 1994 EMPLOYEE
STOCK TRUST. The Stock and any other property that may be received by the
Trustee hereunder shall be held and disposed of upon the following terms and
conditions.
ARTICLE I
A. This Trust is and shall be irrevocable and the Company shall have
no right, title or interest in or power, privilege or incident of ownership in
regard to any property held under this Trust Agreement, whether income or
corpus, and shall have no right to alter, amend, revoke or terminate this Trust
Agreement or any provision hereof.
B. This Trust shall be for the benefit of those employees and
temporary employees of the Company listed on Exhibit "A" attached hereto and
hereby made a part hereof who remain in the continuous employ of the Company
until the date (the "Termination Date") which is the earlier of June 28, 1997 or
<PAGE>
the date all of the Stock is transferred or sold in connection with the
acquisition of the Company by, or the merger of the Company into, another
entity. Such persons who are listed on Exhibit "A" and who remain in the
Company's employ on the Termination Date are hereinafter referred to as the
"Beneficiaries." No person who is not employed by the Company on the
Termination Date shall be a Beneficiary hereunder, regardless of whether the
Beneficiary's employment with the Company terminates by reason of death,
disability or other involuntary or voluntary action or event.
ARTICLE II
A. Until the Termination Date, the Trust property shall be held as
follows:
1. The Trustee shall vote the Stock in his sole and absolute
discretion.
2. All cash received by the Trustee from cash dividends payable
with respect to the Stock shall be applied to the purchase of additional Common
Stock of the Company, which Common Stock purchased shall thereafter become part
of the "Stock" hereunder. Until additional stock is purchased, the Trustee
shall be authorized to maintain such cash in interest bearing or non-interest
bearing accounts with any financial institutions selected by the Trustee, in his
sole and absolute discretion.
3. The Trustee shall not sell or otherwise transfer the Stock or
any portion thereof unless such sale or transfer is in connection with the
acquisition of the Company by, or the merger of the Company into, another
entity.
2
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B. Within a reasonable time after the Termination Date, the Trustee
shall distribute and dispose of the Trust property as follows:
1. Any Stock shall be divided equally among and distributed to
the Beneficiaries; provided, however, that no fractional shares shall be issued.
The Company shall cause a stock certificate representing the appropriate number
of shares to be issued to each Beneficiary. Such stock certificates shall
contain such restrictive legends as the Company or its counsel may deem
appropriate to reflect that the stock has not been registered with the
Securities and Exchange Commission.
2. As soon as practicable after the Termination Date, the
Company shall purchase from the Trust the aggregate number of shares of Stock
not distributed to the Beneficiaries as a result of no fractional shares being
issued. The purchase price for such stock shall be the closing price for such
stock as reported in The Wall Street Journal on the last business day preceding
-----------------------
the Termination Date. The net proceeds of such sale shall be divided equally
among and distributed to the Beneficiaries.
3. The proceeds of the sale or transfer of all of the Stock in
connection with the acquisition of the Company by, or the merger of the Company
into, another entity shall, as soon as practicable after the Termination Date,
be divided equally among and distributed to the Beneficiaries.
3
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ARTICLE III
A. The Trustee may interpret this Trust and make such determinations
and take such other action as he deems necessary or desirable for the
administration of this Trust. Without limiting the generality of the foregoing,
the Trustee, in his discretion, may treat all or any part of any period during
which a person is on military duty or on an approved leave of absence from the
Company as a period of employment of such person by the Company for purposes of
determining his rights under this Trust. Any interpretation, determination or
other action made or taken by the Trustee shall be final, binding and
conclusive.
B. A person who is or may qualify as a Beneficiary hereunder shall
not have any rights as a stockholder with respect to any Stock owned by this
Trust until the issuance of a stock certificate for such shares. No adjustment
shall be made on the issuance of a stock certificate to a Beneficiary as to any
dividends or other rights for which the record date occurred prior to the date
of issuance of such certificate.
C. The interest of any beneficiary in the income or corpus of this
Trust shall not be subject to assignment, alienation, pledge, attachment or
claims of creditors and may not otherwise be voluntarily or involuntarily
alienated or encumbered by such beneficiary.
D. Use of pronouns in any form wherever they appear in this Trust
Agreement shall be read as either masculine, feminine or neuter, and either
singular or plural, whenever the context and facts permit that construction.
4
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E. If any provision of this Trust Agreement shall be unenforceable,
the remaining provisions shall nevertheless be carried into effect.
ARTICLE IV
A. If STEPHEN C. NEVIN shall at any time fail, cease or otherwise be
unable or unwilling to serve as Trustee hereunder, then MICHAEL D. ACKS shall
serve in his place and stead as the Trustee hereunder. If MICHAEL D. ACKS or
any successor Trustee shall fail, cease or otherwise be unable or unwilling to
serve as the Trustee hereunder, then the Company shall have the right,
exercisable by written instrument, to appoint any one or more persons to serve
as successor Trustee hereunder.
B. All expenses incurred in the administration of this Trust
including any Trustee compensation, shall be paid by the Company and no such
amount shall be charged against the assets of this Trust.
C. Any Trustee may renounce the appointment by giving written notice
or may resign by giving thirty (30) days' prior written notice to the Company.
D. No successor Trustee shall be liable or responsible in any way for
any acts or defaults of any predecessor Trustee, or for any loss or expense
caused by anything done or neglected to be done by any predecessor Trustee, but
5
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such successor Trustee shall be liable for his own acts and defaults with
respect to the property actually received by him as Trustee.
E. Any successor Trustee qualified and acting hereunder shall have
all the title, privileges, powers, exemptions and duties of the original
Trustee.
F. No successor Trustee shall be required to inquire into or audit
the acts or doings of any predecessor Trustee or to make any claim against any
such predecessor Trustee or his estate.
G. The Trustee shall keep records for this Trust, showing all
disbursements, charges for commissions, receipts of income and corpus, and all
investments and changes of investments. These records shall be open for
inspection at all reasonable times to the Company or its agents.
H. Any power and right granted to the Trustee may be exercised by the
Trustee without posting any bond, without obtaining any order from or the
approval of any court, without any notice to or consent of anyone, and the
Trustee shall not be required to make any inventory, appraisement, return or
report to any court at any time or for any purpose.
I. Any reference in this Trust Agreement to the word "Trustee" shall
also include any successor Trustee and shall be read as either masculine,
feminine or neuter whenever the context and facts permit such construction.
J. The Company agrees to indemnify, defend and hold the Trustee
harmless from and against any and all loss, damage, tax, liability and expense,
including attorneys fees, that may be incurred by the Trustee arising out of or
6
<PAGE>
in connection with his serving as Trustee hereunder, except as caused by the
Trustee's gross negligence or willful misconduct, including the legal costs and
expenses of defending the Trustee against any claim or liability in connection
with his performance hereunder, and the legal costs and expenses of any action
instituted by him to resolve any dispute as to the property held in this Trust.
ARTICLE V
The Trustee and his successors in office shall have all privileges,
powers, exemptions and duties conferred by statute or case law in the State of
Georgia, which are incorporated by reference herein and which may be exercised
without order of any court. Such powers specifically include the power:
1. To hold any moneys in cash or to deposit the same in any bank
organized under the laws of any state or of this or any foreign country,
regardless of whether such moneys may earn interest, for such periods of time as
the Trustee alone may deem advisable.
2. To vote stock by himself by proxy, to deposit securities with
and transfer title to committees representing security holders and to
participate in voting trusts, reorganizations and other transactions involving
the common interest of security holders; to enter into any plan or agreement for
the sale, merger, consolidation, liquidation, recapitalization or other
disposition of any trust property subject to this Trust Agreement or of any
corporation issuing securities held as part of any Trust created hereunder and
to accept in such transactions any cash, securities or property that the Trustee
deems proper.
3. To select an annual accounting period for this Trust; to pay
taxes, assessments and other expenses incurred in the collection, care,
administration and protection of the Trust created hereunder; to have the sole
and absolute discretion to exercise any rights of election available under or in
respect to any tax law.
7
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4. To exercise all power and authority after the termination of
the Trust created hereunder until the same is fully distributed.
IN WITNESS WHEREOF, the Company and the Trustee have caused this
instrument to be executed the day and year first above written.
VALUJET AIRLINES, INC.
By: /s/ Robert L. Priddy
_______________________________
Title: Chairman of the Board
____________________________
/s/ Stephen C. Nevin
______________________________(SEAL)
STEPHEN C. NEVIN, Trustee
8
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[LETTERHEAD OF ELLIS, FUNK, GOLDBERG, LABOVITZ & DOKSON, P.C. APPEARS HERE]
EXHIBIT 5
---------
August 18, 1997
ValuJet, Inc.
Suite 126
1800 Phoenix Blvd.
Atlanta, Georgia 30349
Re: ValuJet, Inc. Registration Statement on Form S-8
Gentlemen:
At your request, we have examined the Registration Statement on Form S-8 filed
by ValuJet, Inc. (the "Company"), a Nevada corporation, with the Securities and
Exchange Commission with respect to the registration under the Securities Act of
1933, as amended, of 39,680 shares of Common stock, $0.001 par value per share,
of the Company (the "Common Stock") issuable by the Company under the ValuJet
1994 Employee Stock Trust (referred to herein as the "Plan").
As your counsel, and in connection with the preparation of the Registration
Statement, we have examined the originals or copies of such documents, corporate
records, certificates of public officials, officers of the Company and other
instruments relating to the authorization and issuance of the Common Stock as we
deemed relevant or necessary for the opinion herein expressed.
Upon the basis of the foregoing, it is our opinion that the Common Stock to be
issued under the Plan will be legally issued, fully-paid and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name in the "Legal" section of
the Registration Statement, including the Prospectus constituting a part
thereof, and any amendments thereto.
Yours truly,
ELLIS, FUNK, GOLDBERG, LABOVITZ & DOKSON, P.C.
By: /s/ Robert B. Goldberg
-------------------------------------
Robert B. Goldberg
RBG:wc
<PAGE>
EXHIBIT 23(a)
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm in the Registration Statement Form S-8
pertaining to the ValuJet, Inc. 1994 Employee Stock Trust and to the
incorporation by reference therein of our report dated February 10, 1997, except
for Note 4 as to which the date is March 27, 1997, with respect to the
consolidated financial statements and schedule of ValuJet, Inc. included in its
Annual Report (Form 10-K) for the end year ended December 31, 1996, filed with
the Securities and Exchange Commission.
ERNST & YOUNG LLP
Atlanta, Georgia
August 12, 1997
