As filed with the Securities and Exchange Commission on May 16,
2022
Registration
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SKY HARBOUR GROUP CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
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Delaware
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85-2732947
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(State or Other Jurisdiction
of Incorporation or Organization)
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(I.R.S. Employer
Identification No.)
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136 Tower Road, Suite 205
Westchester County Airport
White Plains, New York
(Address of Principal Executive Offices) (Zip Code)
Sky Harbour Group Corporation 2022 Incentive Award Plan
(Full Title of the Plan)
Tal Keinan
Chief Executive Officer
Sky Harbour Group Corporation
136 Tower Road, Suite 205
Westchester County Airport
White Plains, New York 10604
(Name and Address of Agent for Service)
(212) 554-5990
(Telephone Number, including area code, of agent for
service)
Copies to:
John Owen
John Hensley
Morrison & Foerster LLP
250 West 55th
Street
New York, New York 10019
Tel: (212) 468-8000
Indicate by check mark whether the Registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer, a
smaller reporting company, or an emerging growth company. See
definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company,” and “emerging growth company” in Rule
12b-2 of the Exchange Act. (Check one):
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Large accelerated filer
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☐
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Accelerated filer
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☐
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Non-accelerated filer
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☒
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Smaller reporting company
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☒
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Emerging growth company
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☒
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If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of the
Securities Act. ☐
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
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Item 1.
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Plan Information.
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Information required by this Item 1 to be contained in the
Section 10(a) prospectus is omitted from this Registration
Statement in accordance with Rule 428 under the Securities Act of
1933, as amended (the “Securities Act”) and the instructions to
Form S-8. In accordance with the rules and regulations of the
Securities and Exchange Commission (the “Commission”) and the
instructions to Form S-8, such documents are not being filed with
the Commission either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424 under
the Securities Act.
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Item 2.
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Registrant Information and Employee Plan Annual
Information.
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Information required by this Item 2 to be contained in the
Section 10(a) prospectus is omitted from this Registration
Statement in accordance with Rule 428 under the Securities Act and
the instructions to Form S-8. In accordance with the rules and
regulations of the Commission and the instructions to Form S-8,
such documents are not being filed with the Commission either as
part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424 under the Securities
Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3.
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Incorporation of Documents by Reference.
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The following documents filed by the Registrant with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), are incorporated herein by reference:
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(i)
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The Registrant’s Annual Report on Form 10-K (File No. 001-39648)
for the year ended December 31, 2021, filed
with the Commission on March 28, 2022 (including information
specifically incorporated by reference therein from the
Registrant’s Proxy Statement filed with the Commission on April 29, 2022), which contains
audited financial statements for the Registrant’s latest fiscal
year;
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(ii)
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The Registrant’s Quarterly Report on Form 10-Q (File No. 001-39648)
for the quarter ended March 31, 2022, filed with the
Commission on May 12, 2022;
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(ii)
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The Registrant’s Current Reports on Form 8-K or 8-K/A, as
applicable, File No. 001-39648 (other than information furnished
rather than filed), filed with the Commission on January 18, 2022, January 25, 2022, January 26, 2022, January 31, 2022, March 11, 2022, March 28, 2022(1) and March 28, 2022(2); and
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(iii)
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The description of the Registrant’s Common Stock which is contained
in a registration statement on Form 8-A filed on January 25,
2022 (File No. 001-39648) under the Exchange Act, as updated in
Exhibit 4.4 to the 2021 Annual Report on Form 10-K, as well as any
additional amendments or reports filed for the purpose of updating
such description.
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All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment, which indicates that all
securities offered hereby have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the
date of the filing of such documents, except as to specific
sections of such statements as set forth therein.
Unless expressly incorporated into this Registration Statement, a
report furnished on Form 8-K prior or subsequent to the date hereof
shall not be incorporated by reference into this Registration
Statement, except as to specific sections of such statements as set
forth therein. Any statement contained in a document incorporated
or deemed to be 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 in any
subsequently filed document, which also is deemed to be
incorporated by reference herein, modifies or supersedes such
statement.
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Item 4.
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Description of Securities.
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Not applicable.
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Item 5.
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Interests of Named Experts and Counsel.
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Not applicable.
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Item 6.
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Indemnification of Directors and Officers.
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The Registrant’s second amended and restated certificate of
incorporation contains provisions that limit the liability of the
Registrant’s directors for monetary damages to the fullest extent
permitted by Delaware law. Consequently, the Registrant’s directors
will not be personally liable to the Registrant or its stockholders
for monetary damages for any breach of fiduciary duties as
directors, except liability for the following:
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•
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for any breach of their duty of loyalty to the Registrant or its
stockholders;
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for any act or omission not in good faith or that involves
intentional misconduct or a knowing violation of law;
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•
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unlawful payments of dividends or unlawful stock repurchases or
redemptions as provided in Section 174 of the Delaware General
Corporation Law; or
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•
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for any transaction from which they derived an improper personal
benefit.
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The Registrant’s bylaws provide that the Registrant shall
indemnify, to the fullest extent permitted by law, any person who
is or was a party or is threatened to be made a party to any
action, suit or proceeding, by reason of the fact that he or she is
or was one of the Registrant’s directors or officers or is or was
serving at the Registrant’s request as a director or officer of
another corporation, partnership, joint venture, trust, non-profit
entity or other enterprise. The Registrant’s amended and restated
bylaws provide that the Registrant may indemnify the Registrant’s
employees or agents. The Registrant’s amended and restated bylaws
also provide that the Registrant must advance expenses incurred by
or on behalf of a director or officer in advance of the final
disposition of any action or proceeding, subject to limited
exceptions.
The Registrant maintains insurance policies under which, subject to
the limitations of the policies, coverage is provided to its
directors and officers against loss arising from claims made by
reason of breach of fiduciary duty or other wrongful acts as a
director or officer, including claims relating to public securities
matters, and to the Registrant with respect to payments that may be
made by the Registrant to these officers and directors pursuant to
the Registrant’s indemnification obligations or otherwise as a
matter of law.
The Registrant entered into indemnification agreements with each of
its directors and executive officers that are broader than the
specific indemnification provisions contained in the Delaware
General Corporation Law. These indemnification agreements require
the Registrant, among other things, to indemnify the Registrant’s
directors and executive officers against liabilities that may arise
by reason of their status or service. These indemnification
agreements also require the Registrant to advance all expenses
incurred by the directors and executive officers in investigating
or defending any such action, suit or proceeding.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons
controlling the Registrant’s company pursuant to the foregoing
provisions, the Registrant has been informed that, in the opinion
of the Commission, such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
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Item 7.
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Exemption from Registration Claimed.
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Not applicable.
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a.
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The undersigned Registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the
Securities Act;
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(ii)
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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
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(iii)
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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;
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Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
above do not apply if the information required to be included in a
post-effective amendment by such paragraphs is contained in 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.
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(2)
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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.
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(3)
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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.
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b.
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The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of
the Registrant’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.
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c.
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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 hereby, 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.
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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 White
Plains, State of New York, on May 16, 2022.
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Sky Harbour Group
Corporation
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By:
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/s/ Tal
Keinan
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Name:
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Tal Keinan
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Title:
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Chair and Chief
Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned
officers and directors of Sky Harbour Group Corporation, a Delaware
corporation, do hereby constitute and appoint Tal Keinan and
Francisco Gonzalez, and each of them, the lawful attorneys-in-fact
and agents with full power and authority to do any and all acts and
things and to execute any and all instruments which said attorneys
and agents, and any one of them, determine may be necessary or
advisable or required to enable said corporation to comply with the
Securities Act of 1933, as amended, and any rules or regulations or
requirements of the Securities and Exchange Commission in
connection with this Registration Statement. Without limiting the
generality of the foregoing power and authority, the powers granted
include the power and authority to sign the names of the
undersigned officers and directors in the capacities indicated
below to this Registration Statement, to any and all amendments,
both pre-effective and post-effective, and supplements to this
Registration Statement, and to any and all instruments or documents
filed as part of or in conjunction with this Registration Statement
or amendments or supplements thereof, and each of the undersigned
hereby ratifies and confirms that all said attorneys and agents, or
any one of them, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the
following persons on behalf of the Registrant in the capacities and
on the dates indicated.
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Signature
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Title
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Date
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/s/ Tal Keinan
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Chair and Chief Executive Officer
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May 16, 2022
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Tal Keinan
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(Principal Executive
Officer) |
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/s/ Francisco Gonzalez
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Chief Financial Officer
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May 16, 2022
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Francisco Gonzalez
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(Principal
Financial Officer) |
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/s/ Michael W. Schmitt
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Chief Accounting Officer
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May 16, 2022
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Michael W. Schmitt
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(Principal
Accounting Officer) |
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/s/ Walter Jackson
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Director
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May 16, 2022
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Walter Jackson
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/s/ Alethia Nancoo
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Director
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May 16, 2022
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Alethia Nancoo
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/s/ Alex B. Rozek
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Director
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May 16, 2022
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Alex B. Rozek
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/s/ Lysa Leiponis
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Director
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May 16, 2022
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Lysa Leiponis
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/s/ Nick Wellmon
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Director
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May 16, 2022
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Nick Wellmon
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/s/ Robert S. Rivkin
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Director
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May 16, 2022
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Robert S. Rivkin
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