dal_s8pos-111008.htm
As filed
with the Securities and Exchange Commission on November 10, 2008.
Registration
No. 333-151060
UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
POST-EFFECTIVE
AMENDMENT NO. 2
TO
FORM
S-4
REGISTRATION
STATEMENT
ON
FORM
S-8
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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1040
Delta Boulevard
Hartsfield-Jackson Atlanta International Airport
Atlanta,
Georgia 30354
(404)
715-2600
(Address
of Principal Executive Offices,
including
Zip Code)
NORTHWEST
AIRLINES CORPORATION 2007 STOCK INCENTIVE PLAN
(Full
title of the plans)
Richard
B. Hirst, Esq.
Senior
Vice President – 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)
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Large
accelerated filer
x
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Accelerated
filer o
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Non-accelerated
filer o
(Do
not check if a smaller reporting company)
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Smaller
reporting company o
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Calculation
of Registration Fee
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Title
of Each Class of
Securities
to be
Registered
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Amount
of Shares to
be
Registered(1)(2)
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Proposed
Maximum
Offering
Price Per
Share
(3)
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Proposed
Maximum
Aggregate
Offering
Price
(3)
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Amount
of
Registration
Fee (3)
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Common
Stock, par value $0.0001 per share
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11,701,277
shares
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N/A
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N/A
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N/A
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(1)
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The
number of shares registered is based on an estimate of the maximum number
of shares of common stock of Delta Air Lines, Inc. issuable under the
Northwest Airline Corporation 2007 Stock Incentive
Plan.
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(2)
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Pursuant
to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities
Act”), this registration statement shall be deemed to cover an
indeterminate number of additional shares that may become issuable as a
result of stock splits, stock dividends or similar transactions pursuant
to the anti-dilution provisions of the NWA
Plan.
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(3)
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The
proposed maximum offering price was calculated and the fee was previously
paid in connection with the filing with the U.S. Securities and Exchange
Commission (the “SEC”)
of the Registration Statement on Form S-4 of Delta (File No. 333-151060)
on May 20, 2008.
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EXPLANATORY
NOTE
Delta Air Lines, Inc., a Delaware
corporation (“Delta” or
the “Registrant”),
hereby amends its Registration Statement on Form S-4 (File No. 333-151060),
which was declared effective on August 7, 2008 (the “Form
S-4”), by filing this Post-Effective Amendment No. 2 on Form S-8 relating
to shares of common stock, par value $0.0001 per share, that are issuable by
Delta pursuant to awards granted under the Northwest Airlines Corporation 2007
Stock Incentive Plan (the “NWA
Plan”). All such shares of Delta common stock were originally
registered on the Form S-4. Unless otherwise indicated, the terms
“Delta,” the “Company,” “we,” “us,” and “our” refer to Delta Air Lines, Inc. and
its subsidiaries.
On October 29, 2008, Nautilus Merger
Corporation, a Delaware corporation and wholly-owned subsidiary of Delta (“Merger
Sub”), merged with and into Northwest Airlines Corporation (“Northwest”)
pursuant to the Agreement and Plan of Merger dated as of April 14, 2008, by and
among Delta, Merger Sub and Northwest. Pursuant to the Merger
Agreement, at the effective time of the merger, each share of common stock of
Northwest issued and outstanding (including those shares issuable pursuant to
Northwest’s plan of reorganization under Chapter 11) immediately prior to the
effective time of the merger, subject to certain exceptions, was converted into
the right to receive 1.25 shares of Delta common stock (the “Exchange
Ratio”).
In addition, pursuant to the Merger
Agreement, at the effective time of the merger, the NWA Plan was assumed by
Delta. Any award outstanding under the NWA Plan at the effective time
of the merger that was not otherwise settled upon the merger was assumed by
Delta and converted into an award referenced by Delta common stock subject to,
and in accordance with, the same terms and conditions applicable to the
corresponding Northwest award, except that the number of shares of Delta common
stock subject to each such converted award is equal to the product, rounded down
to the nearest whole number of shares of Delta common stock, of (x) the
number of shares of Northwest common stock subject to the corresponding
Northwest stock option or in respect of the corresponding Northwest stock
appreciation right and (y) 1.25. The exercise price for
converted options and stock appreciation rights is equal the applicable per
share exercise price for the shares of Northwest common stock divided by 1.25
(rounded up to the nearest whole cent).
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
document(s) containing the information specified in Part I of Form S-8 have been
or will be sent or given to participants in the NWA 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 with the Securities and
Exchange Commission are hereby incorporated by reference into this Registration
Statement as of their respective dates:
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·
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Annual
Report on Form 10-K for the fiscal year ended December 31,
2007;
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·
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Quarterly
Reports on Form 10-Q for the quarterly periods ended March 31,
2008, June 30, 2008, and September 30,
2008;
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·
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Current
Reports on Form 8-K and 8-K/A filed on February 8, 2008, February 13,
2008, April 4, 2008, April 15, 2008, April 18, 2008, May 22, 2008, June 6,
2008, July 2, 2008, July 16, 2008, August 26, 2008, September 25, 2008;
October 31, 2008 and November 7, 2008 (other than the portions of those
documents not deemed to be filed);
and
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·
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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 have been passed upon for the Company by
Kenneth F. Khoury, Esq., former Executive Vice President and General Counsel of
the Company. Mr. Khoury participated in Delta’s 2007 Performance
Compensation Plan and received 166,140 shares of restricted Common Stock,
options to purchase 130,780 shares of Common Stock and 79,340 performance shares
under that plan. Mr. Khoury is also eligible for benefits under
Delta’s 2007 Officer and Director Severance Plan.
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.
(a)
The undersigned registrant hereby undertakes:
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(1) to
file, during any period in which offers or sales are being made, a
post-effective amendment to the Registration
Statement:
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(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 November 10, 2008.
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Delta
Air Lines, Inc.
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By: /s/ Richard H.
Anderson
Name:
Richard H. Anderson
Title:
Chief Executive Officer
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Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed on November 10, 2008 by the following persons in the capacities
indicated.
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Richard
H. Anderson
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Chief
Executive Officer and Director (Principal Executive
Officer)
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Hank
Halter
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Senior
Vice President and Chief Financial Officer (Principal Financial Officer
and Principal Accounting Officer)
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Roy
J. Bostock
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Director
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John
S. Brinzo
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Director
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Daniel
A. Carp
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Chairman
of the Board
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Eugene
I. Davis
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Director
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John
M. Engler
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Director
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Mickey
P. Foret
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Director
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David
R. Goode
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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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Kenneth
C. Rogers
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Director
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Rodney
E. Slater
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Director
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Douglas
M. Steenland
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Director
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Kenneth
B. Woodrow
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Director
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Exhibit
No.
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Description
of Exhibits
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5
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Opinion
of Kenneth F. Khoury, Esq. as to the validity of the securities being
registered (contained in the Pre-Effective Amendment No. 1 to Form S-4
previously filed on August 6, 2008 to which this Post-Effective Amendment
No. 1 relates).*
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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) (included in the
opinion previously filed as Exhibit 5 to Pre-Effective Amendment No. 1 to
Form S-4 previously filed on August 6, 2008 to which this Post-Effective
Amendment No. 1 relates).*
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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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23.4
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Consent
of Ernst & Young LLP.
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__________________________
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*
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Incorporated
herein by reference.
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5