FormS-8 Registration Statement
As
filed
with the Securities and Exchange Commission on April 27, 2007.
Registration
No. 333-_____
UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
DELTA
AIR LINES, INC.
(Exact
name of registrant as specified in its charter)
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Delaware
(State
or other jurisdiction of
incorporation
or organization)
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58-0218548
(I.R.S.
Employer
Identification
No.)
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Hartsfield-Jackson
Atlanta International Airport
Atlanta,
Georgia 30320
(404)
715-2000
(Address
of Principal Executive Offices,
including
Zip Code)
DELTA
AIR LINES, INC. 2007 PERFORMANCE COMPENSATION PLAN
(Full
title of the plans)
Kenneth
F. Khoury, Esq.
Executive
Vice President and General Counsel
Delta
Air
Lines, Inc.
P.O
Box
20706
Atlanta,
Georgia 30320-6001
(Name
and
address of agent for service)
(404)
715-2191
(Telephone
number, including area code, of agent for service)
___________________________________________________
CALCULATION
OF REGISTRATION FEE
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Title
of Securities To
Be
Registered (1)
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Amount
To Be
Registered
(2)
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Proposed
Maximum
Offering
Price Per share (3)
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Proposed
Maximum
Aggregate
Offering Price
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Amount
of
Registration
Fee
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Common
Stock
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30,000,000
shares
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$22.95
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$688,500,000
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$21,137
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| (1) |
The
Common Stock being registered hereunder will be authorized under
the
registrant’s amended and restated certificate filed with the State of
Delaware to be effective upon the registrant’s emergence from bankruptcy
on April 30, 2007.
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| (2) |
Pursuant
to Rule 416 under the Securities Act of 1933, as amended (the
“Securities
Act”),
this Registration Statement shall also cover any additional shares
of
Common Stock which become issuable under the above-named plan by
reason of
any stock dividend, stock split, recapitalization or other similar
transaction effected without the receipt of consideration which results
in
an increase in the number of outstanding shares of Common
Stock.
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| (3) |
Estimated
pursuant to Rules 457(c) and (h) under the Securities Act solely for
purposes of calculating the amount of the registration fee, based
upon the
average of the high and low prices per share of Common Stock of Delta
as
reported on the New York Stock Exchange on April 26, 2007.
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EXPLANATORY
NOTE
On
September 14, 2005 (the “Petition Date”), we and substantially all of our
subsidiaries (the “Debtors”) filed voluntary petitions for reorganization under
Chapter 11 of the United States Bankruptcy Code in the United States Bankruptcy
Court for the Southern District of New York. On December 19, 2006, we filed
with
the Bankruptcy Court a Plan of Reorganization, which contemplates that Delta
will emerge from bankruptcy as an independent airline. The Plan of
Reorganization, as amended, was approved by the holders of claims against the
Debtors. On April 25, 2007, the Bankruptcy Court confirmed the Plan of
Reorganization, and we expect to emerge from bankruptcy on April 30,
2007.
The
Common Stock being registered pursuant to this Registration Statement on Form
S-8 is being issued under an Amended and Restated Certificate of Incorporation
filed with the State of Delaware pursuant to the Plan of Reorganization. The
Amended and Restated Certificate of Incorporation will be effective in
connection with our emergence from bankruptcy on April 30, 2007. All references
in this Registration Statement to our Certificate of Incorporation shall be
deemed to be to the Amended and Restated Certificate of Incorporation, effective
as of April 30, 2007.
The
financial information incorporated by reference into this Registration Statement
reflects our historical consolidated results of operations and financial
condition for the periods presented. That financial information for periods
prior to our emergence from bankruptcy does not fully reflect, among other
things, the effects of the transactions contemplated in the Plan of
Reorganization or the impact of the adoption of fresh-start accounting, which
we
expect to adopt upon our emergence from bankruptcy. As a result, historical
financial information for periods prior to our emergence from bankruptcy likely
will not be representative of our results of operation or financial condition
after the effective date of the Plan of Reorganization.
Unless
otherwise indicated, the terms “Delta,” the “Company,” “we,” “us,” and “our”
refer to Delta Air Lines, Inc. and its subsidiaries.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
document(s) containing the information specified in Part I of Form S-8 will
be
sent or given to participants in the Delta Air Lines, Inc. 2007 Performance
Compensation Plan (the “Plan”)
as
specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the
“Securities
Act”).
These
documents and the documents incorporated by reference into this Registration
Statement pursuant to Item 3 of Part II of this Registration Statement, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
ITEM
3.
INCORPORATION OF DOCUMENTS BY REFERENCE.
The
following documents filed or to be filed by Delta Air Lines, Inc. (“Delta”
or
the
“Company”)
with
the Securities and Exchange Commission are hereby incorporated by reference
into
this Registration Statement as of their respective dates:
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The
Company’s Annual Report on Form 10-K for the fiscal year ended December
31, 2006;
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The
Company’s Quarterly Report on Form 10-Q for the fiscal quarter ended March
31, 2007, filed on April 27, 2007;
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Current
Reports on Form 8-K filed on January 30, 2007, February 14, 2007,
March 2,
2007, March 9, 2007, March 22, 2007 (only with respect to Item 5.02),
March 29, 2007, April 23, 2007 and April 26, 2007;
and
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The
description of the Company's Common Stock contained in the Company’s Form
8-A filed on April 26, 2007.
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All
documents filed by Delta pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the
Exchange Act after the date of this Registration Statement and before the filing
of a post-effective amendment to this Registration Statement that indicates
that
all securities registered hereunder have been sold or that deregisters all
such
securities then remaining unsold shall be deemed to be incorporated by reference
into this Registration Statement and to be a part hereof from the date of filing
of such documents (other than current reports containing information furnished,
as opposed to filed, on Form 8-K). Any statement contained in a document
incorporated or deemed incorporated by reference herein 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 other subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies
or
supersedes such statement. Any such 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.
Certain
matters relating to the validity of the shares of the Company’s Common Stock
(the “Common
Stock”)
being
registered hereby are being passed upon for the Company by Kenneth F. Khoury,
Esq., Executive Vice President and General Counsel of the Company. Mr. Khoury
will be eligible to participate in the Plan and it is expected that he will
receive 136,400 shares of restricted Common Stock, options to purchase 105,500
shares of Common Stock and 49,600 performance shares under the Plan upon the
Company’s emergence from bankruptcy.
ITEM
6.
INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section
145 of the Delaware General Corporation Law provides that a corporation may
indemnify directors and officers as well as other employees and individuals
against expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection
with
any threatened, pending or completed actions, suits or proceedings in which
such
person is made a party by reason of such person being or having been a director,
officer, employee or agent of Delta. The Delaware General Corporation Law
provides that Section 145 is not exclusive of other rights to which those
seeking indemnification may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise. Delta’s Amended and
Restated Certificate of Incorporation provides for indemnification by Delta
of
any of its directors, officers or employees to the fullest extent permitted
by
the Delaware General Corporation Law against all expenses, liability and loss
incurred in connection with any action, suit or proceeding in which any such
person may be involved by reason of the fact that he or she is or was a
director, officer or employee.
Section
102(b)(7) of the Delaware General Corporation Law permits a corporation to
provide in its certificate of incorporation that a director of the corporation
shall not be personally liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director’s duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith
or
which involve intentional misconduct or a knowing violation of law, (iii) for
unlawful payments of dividends or unlawful stock repurchases, redemptions or
other distributions, or (iv) for any transaction from which the director derived
an improper personal benefit. Delta’s Amended and Restated Certificate of
Incorporation provides for such limitation of liability.
Delta
maintains standard policies of insurance under which coverage is provided (a)
to
its directors and officers against loss rising from claims made by reason of
breach of duty or other wrongful act, and (b) to Delta with respect to payments
which may be made by Delta to such officers and directors pursuant to the above
indemnification provision or otherwise as a matter of law.
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of Delta pursuant
to
the foregoing provisions, or otherwise, Delta 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 Delta of expenses incurred or paid by a director, officer
or
controlling person of Delta 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 Delta 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.
ITEM
7.
EXEMPTION FROM REGISTRATION CLAIMED.
Not
applicable.
ITEM
8.
EXHIBITS.
See
Exhibit Index.
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 the Registration Statement:
(i)
to
include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii)
to
reflect in the prospectus any facts or events arising after the effective date
of the Registration Statement (or 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. Notwithstanding the
foregoing, any increase or decrease in the volume of securities offered (if
the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective
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 (a)(1)(i) and (a)(1)(ii) of this section do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration Statement;
(2) that,
for
the purpose of determining any liability under the Securities Act, 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 purposes of determining
any
liability under the Securities Act, each filing of the Company’s annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in the
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 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 Commission such indemnification is against
public policy as expressed in the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
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 April
27, 2007.
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Delta
Air Lines, Inc.
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By:
/s/
Edward H.
Bastian
Name:
Edward H. Bastian
Title:
Executive Vice President and Chief Financial
Officer
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Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed on April 27, 2007 by the following persons in the capacities
indicated.
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Signature
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Title
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/s/
Gerald Grinstein
Gerald
Grinstein
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Chief
Executive Officer and Director (Principal Executive Officer)
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/s/
Edward H. Bastian
Edward
H. Bastian
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Executive
Vice President and Chief Financial Officer (Principal Financial
Officer
and Principal Accounting Officer)
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/s/
Edward H. Budd
Edward
H. Budd
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Director
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/s/
Domenico De Sole
Domenico
De Sole
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Director
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/s/
David R. Goode
David
R. Goode
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Director
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/s/
Patricia L. Higgins
Patricia
L. Higgins
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Director
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/s/
Arthur E. Johnson
Arthur
E. Johnson
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Director
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/s/
Karl J. Krapek
Karl
J. Krapek
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Director
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/s/
Paula Rosput Reynolds
Paula
Rosput Reynolds
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Director
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/s/
John F. Smith, Jr.
John
F. Smith, Jr.
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Chairman
of the Board
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/s/
Kenneth B. Woodrow
Kenneth
B. Woodrow
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Director
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EXHIBIT
INDEX
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Exhibit
No.
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Description
of Exhibits
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4.1
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Delta's
Amended and Restated Certificate of Incorporation (Filed as Exhibit
3 to
Delta's Form 8-A as filed on April 26, 2007).*
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4.2
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Delta's
By-Laws (Filed as Exhibit 4 to Delta's Current Report on Form 8-A
as filed
on April 26, 2007).*
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5
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Opinion
of Kenneth F. Khoury, Esq.
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10.1
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Delta
Air Lines, Inc. 2007 Performance Compensation Plan (Filed as Exhibit
10.1
to Delta’s Form 8-K as filed on March 22, 2007).**
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15
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Letter
from Ernst & Young LLP regarding unaudited interim financial
information.
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23.1
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Consent
of Kenneth F. Khoury, Esq. (included in Exhibit 5).
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23.2
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Consent
of Ernst & Young LLP
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23.3
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Consent
of Deloitte & Touche LLP.
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| * |
Incorporated
herein by reference. This document will be effective as of the
registrant’s emergence from bankruptcy, currently expected to be April 30,
2007.
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| ** |
Incorporate
herein by
reference.
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