As filed with the Securities and Exchange Commission on February 11, 2005.
REGISTRATION NO. 333-
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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.
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(Exact name of registrant as specified in its charter)
DELAWARE 58-0218548
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Hartsfield-Jackson Atlanta International Airport, Atlanta, Georgia 30320
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(Address of Principal Executive Offices) (Zip Code)
DELTA FAMILY-CARE SAVINGS PLAN
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(Full title of the plan)
Gregory L. Riggs, Esq.
Senior Vice President - General Counsel and Chief Corporate Affairs Officer
Delta Air Lines, Inc.
P.O Box 20706
Atlanta, Georgia 30320-6001
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(Name and address of agent for service)
(404) 715-2611
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(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Title of Proposed Proposed maximum Amount of
securities to Amount to be maximum offering aggregate offering registration
be registered registered (1) price per share (2) price (2) fee
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Common Stock, par
value $1.50 per share, 15 million shares $5.84 $87,600,000 $10,310.52
and related rights
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(1) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the
"Securities Act"), this registration statement also covers an indeterminate
amount of interests to be offered or sold under the Delta Family-Care
Savings Plan (the "Plan"). Also, each share of Common Stock to be issued
under the Plan includes one-half of a preferred stock purchase right
("Right") to be issued pursuant to the terms and conditions of the Rights
Agreement dated as of October 24, 1996, as amended as of July 22, 1999,
between registrant and First Chicago Trust Company of New York, as Rights
Agent. Each whole Right, when exercisable, would entitle its registered
holder to purchase one one-hundreth of a share of Series D Junior
Participating Preferred Stock of registrant at an exercise price of $300,
subject to adjustment in certain circumstances. The Rights will expire at
the close of business on November 4, 2006, unless earlier exchanged or
redeemed.
(2) Estimated solely for purposes of computing the registration fee pursuant to
Rule 457(h) under the Securities Act on the basis of the average of the
high and low prices per share of Common Stock of Delta as reported on the
New York Stock Exchange composite transaction listing on February 7, 2005.
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 Family-Care Savings Plan (the
"Plan") as specified by Rule 428(b)(1) under 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:
o The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2003 (except for Item 6, Item 7 "Management's Discussion
and Analysis of Financial Condition and Results of
Operations--Business Environment," "--Results of Operations--2003
Compared to 2002" and "--Results of Operations--2002 Compared to 2001"
and Item 8 of such report);
o Annual Report on Form 11-K for the Plan for the year ended December
31, 2003.
o Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31,
2004, June 30, 2004 and September 30, 2004; and
o Current Reports on Form 8-K filed on February 3, 2004, April 16, 2004,
May 19, 2004 (two such reports were filed on this date), July 2, 2004,
July 13, 2004, July 30, 2004, August 18, 2004 (two such reports were
filed on this date), September 8, 2004, September 15, 2004 (which
includes updated Item 6, Item 7 "Management's Discussion and Analysis
of Financial Condition and Results of Operations--Business
Environment," "--Results of Operations--2003 Compared to 2002" and
"--Results of Operations--2002 Compared to 2001" and Item 8 of the
Annual Report on Form 10-K for the fiscal year ended December 31,
2003), September 16, 2004, September 28, 2004, October 15, 2004,
October 25, 2004, October 26, 2004, October 28, 2004, November 1,
2004, November 3, 2004, November 19, 2004, November 23, 2004, November
24, 2004, December 1, 2004, December 2, 2004, December 6, 2004,
January 20, 2005 and January 27, 2005.
o "Description of Capital Stock" contained in the Company's Form S-1
Registration Statement (File No. 333-121473), filed under Section 12
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), including all amendments and reports filed for the purpose of
updating such description.
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
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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.
The legality of the shares of Common Stock has been passed upon for the
Company by Leslie P. Klemperer, Esq., Vice President - Deputy General Counsel &
Secretary of the Company. At January 1, 2005, Mr. Klemperer beneficially owned
9,857 shares of Common Stock of the Company; had options to purchase 37,652
shares of Common Stock of the Company under Delta's 2000 Performance
Compensation Plan; 18,400 stock appreciation rights under Delta's 2000
Performance Compensation Plan, the value of which is based on the Common Stock
of the Company; and beneficially owned 1,542.144 shares of Common Stock and
239.360 shares of Series B ESOP Convertible Preferred Stock of the Company under
the Delta Family-Care Savings 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
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 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.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index
ITEM 9. UNDERTAKINGS.
(a) The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of securities registered hereby, a post-effective amendment to this
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 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;
(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 (i) and (ii) above do not apply if
the registration statement is on Form S-8, and the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by Delta pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated
by reference in this 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 herein, 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 Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of
Delta'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 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 may be permitted to directors, officers and controlling
persons of Delta pursuant to the foregoing provisions, or
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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.
SIGNATURES
Pursuant to the requirements of the Securities Act, Delta 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, and the State of Georgia, on the 9th day of February, 2005.
DELTA AIR LINES, INC.
By: /s/ Michael J. Palumbo
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Michael J. Palumbo
Executive Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act, this registration
statement has been signed below on the 9th day of February, 2005, by the
following persons on behalf of Delta and in the capacities indicated.
SIGNATURE TITLE
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* Chairman of the Board
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John F. Smith, Jr.
* Director
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Edward H. Budd
* Director
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David R. Goode
* Director and
------------------------------- Chief Executive Officer
Gerald Grinstein (Principal Executive Officer)
/s/ Karl J. Krapek Director
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Karl J. Krapek
* Director
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Paula Rosput Reynolds
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* Director
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Joan E. Spero
Director
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Larry D. Thompson
* Director
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Kenneth B. Woodrow
/s/ Michael J. Palumbo Executive Vice President and
------------------------------- Chief Financial Officer
Michael J. Palumbo (Principal Financial Officer and
Principal Accounting Officer)
*By: /s/ Michael J. Palumbo Attorney-In-Fact
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Michael J. Palumbo
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EXHIBIT INDEX
Exhibit No. Description of Exhibits
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4.1 Delta's Certificate of Incorporation (Filed as Exhibit 3.1 to
Delta's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1998).*
4.2 Delta's By-Laws (Filed as Exhibit 3 to Delta's Current Report on
Form 8-K dated January 27, 2005).*
4.3 Rights Agreement dated as of October 24, 1996, between Delta and
First Chicago Trust Company of New York, as Rights Agent, as
amended by Amendment No. 1 thereto dated as of July 22, 1999
(Filed as Exhibit 1 to Delta's Form 8-A/A Registration Statement
dated November 4, 1996, and Exhibit 3 to Delta's Amendment No. 1
to Form 8-A/A Registration Statement dated July 30, 1999).*
5 Opinion of Leslie P. Klemperer, Esq.
15 Letter from Deloitte & Touche LLP regarding unaudited interim
financial information.
23.1 Consent of Leslie P. Klemperer, Esq. (included in Exhibit 5).
23.2 Consent of Deloitte & Touche LLP.
24 Powers of Attorney.
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* Incorporated herein by reference.
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