<PAGE> 1
As filed with the Securities and Exchange Commission on September 5, 1995
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
----------------------
SKYWEST, INC.
(Exact name of registrant as specified in its charter)
Utah 87-0292166
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
--------------------
444 South River Road
St. George, Utah 84770
(Address of Principal Executive Offices,
including Zip Code)
SKYWEST'S ALLSHARE INCENTIVE STOCK OPTION PLAN
(Full title of the plan)
BRADFORD R. RICH Copy to:
Executive Vice President and RICHARD G. BROWN
Chief Financial Officer Kimball, Parr, Waddoups, Brown & Gee
Skywest, Inc. 185 South State Street, Suite 1300
444 South River Road Salt Lake City, Utah 84111
St. George, Utah 84770 (801) 532-7840
(801) 634-3000
(Name, address and telephone
number, including area code,
of agent for service)
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
OFFERING AGGREGATE
AMOUNT TO BE PRICE PER OFFERING AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED SHARE(1) PRICE(1) REGISTRATION FEE(1)
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value......... 500,000 shares $20.64 $10,320,000 $3,559
===========================================================================================================
</TABLE>
(1) Estimated pursuant to Rule 457(h)(1) for purposes of calculating the
registration fee. With respect to 120,000 shares of the 500,000 being
registered, the offering price per share, aggregate offering price and
registration fee have been calculated upon the basis of the exercise price
at which such options may be exercised, pursuant to Rule 457(h)(1). With
respect to the remaining 380,000 shares being registered, for which the
exercise price is not known, the offering price per share, aggregate
offering price and registration fee are computed on the basis of the
average of the high and low sales prices as reported on the NASDAQ Stock
Market (National Market System) on August 28, 1995.
================================================================================
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Plan Annual Information.*
* Information required by Part I 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 Note to Part I of
Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by SkyWest, Inc. (the "Registrant") with
the Securities and Exchange Commission are hereby incorporated by reference in
this Registration Statement:
(1) The Registrant's Annual Report on Form 10-K (File No. 0-14719)
for the fiscal year ended March 31, 1995, which contains, among other things,
the consolidated financial statements of the Registrant for the three-year
period ended March 31, 1995, together with the report thereon of Arthur
Andersen LLP, independent public accountants.
(2) The Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 1995.
(3) The description of the Registrant's Common Stock, no par
value, contained in the Registrant's Registration Statement on Form 8-A filed
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
including any amendment or report filed under the Exchange Act for the purpose
of updating such description.
In addition, 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 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 a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated by reference herein shall be
deemed to be modified or superseded for purposes hereof to the extent that a
statement contained herein (or in any other subsequently filed document which
also is incorporated by reference herein) modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed to
constitute a part hereof except as so modified or superseded.
The financial statements and schedule of the Registrant included in or
incorporated by reference in the Registrant's Annual Report on Form 10-K for
the fiscal year ended March 31, 1995, and incorporated by reference in this
Registration Statement, have been audited by Arthur Andersen LLP, independent
public accountants, as indicated in their reports with respect thereto, and are
incorporated herein in reliance upon the authority of said firm as experts in
giving said reports.
Future financial statements of the Registrant and the reports thereon
of Arthur Andersen LLP also will be incorporated by reference in this
Registration Statement in reliance upon the authority of said firm as experts in
2
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giving those reports to the extent said firm has audited those financial
statements and consented to the use of their reports thereon.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 16-10a-902 ("Section 902") of the Utah Revised Business
Corporation Act (the "Revised Act") provides that a corporation may indemnify
any individual who was, is, or is threatened to be made a named defendant or
respondent (a "Party") in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative and
whether formal or informal (a "Proceeding"), because he is or was a director of
the corporation or is or was serving at its request as a director, officer,
partner, trustee, employee, fiduciary or agent of another corporation or other
person or of an employee benefit plan (an "Indemnified Director"), against any
obligation incurred with respect to a Proceeding, including any judgment,
settlement, penalty, fine or reasonable expenses (including attorneys' fees),
incurred in the Proceeding if his conduct was in good faith, he reasonably
believed that his conduct was in, or not opposed to, the best interests of the
corporation, and, in the case of any criminal Proceeding, he had no reasonable
cause to believe his conduct was unlawful; except that (i) indemnification
under Section 902 in connection with a Proceeding by or in the right of the
corporation is limited to payment of reasonable expenses (including attorneys'
fees) incurred in connection with the proceeding and (ii) the corporation may
not indemnify a director in connection with a Proceeding by or in the right of
the corporation in which the director was adjudged liable to the corporation,
or in connection with any other Proceeding charging that the director derived
an improper personal benefit, whether or not involving action in his official
capacity, in which Proceeding he was adjudged liable on the basis that he
derived an improper personal benefit.
Section 16-10a-906 of the Revised Act provides that a corporation may
not indemnify a director under Section 902 unless authorized and a determination
has been made (by the board of directors, a committee of the board of directors
or by the stockholders) that indemnification of the director is permissible in
the circumstances because the director has met the applicable standard of
conduct set forth in Section 902.
Section 16-10a-903 ("Section 903") of the Revised Act provides that,
unless limited by its articles of incorporation, a corporation shall indemnify
a director who was successful, on the merits or otherwise, in the defense of
any Proceeding, or in the defense of any claim, issue or matter in the
proceeding, to which he was a Party because he is or was a director of the
corporation, against reasonable expenses (including attorneys' fees) incurred
by him in connection with the Proceeding or claim.
In addition to the indemnification provided by Sections 902 and 903,
Section 16-10a-905 ("Section 905") of the Revised Act provides that, unless
otherwise limited by a corporation's articles of incorporation, a director may
apply for indemnification to the court conducting the Proceeding or to another
court of competent jurisdiction. On receipt of an application and after giving
any notice the court considers necessary, (i) the court may order mandatory
indemnification under Section 903, in which case the court shall also order the
corporation to pay the director's reasonable expenses to obtain court-ordered
indemnification, or (ii) upon the court's determination that the director is
fairly and reasonably entitled to indemnification in view of all the relevant
circumstances and regardless of whether the director met the applicable
standard of conduct set forth in Section 902, the court may order
indemnification as the court determines to be proper, except that
indemnification with respect to certain
3
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Proceedings resulting in a director being found liable for certain actions
against the corporation may be limited to reasonable expenses (including
attorneys' fees) incurred by the director.
Section 16-10a-904 ("Section 904") of the Revised Act provides that a
corporation may pay for or reimburse the reasonable expenses (including
attorneys' fees) incurred by a director who is a Party to a Proceeding in
advance of the final disposition of the Proceeding if (i) the director
furnishes the corporation a written affirmation of his good faith belief that
he has met the applicable standard of conduct described in Section 902, (ii)
the director furnishes to the corporation a written undertaking, executed
personally or in his behalf, to repay the advance if it is ultimately
determined that he did not meet the required standard of conduct, and (iii) a
determination is made that the facts then known to those making the
determination would not preclude indemnification under Section 904.
Section 16-10a-907 of the Revised Act provides that, unless a
corporation's articles of incorporation provide otherwise, (i) an officer of
the corporation is entitled to mandatory indemnification under Section 903 and
is entitled to apply for court ordered indemnification under Section 905, in
each case to the same extent as a director, (ii) the corporation may indemnify
and advance expenses to an officer, employee, fiduciary or agent of the
corporation to the same extent as a director, and (iii) a corporation may also
indemnify and advance expenses to an officer, employee, fiduciary or agent who
is not a director to a greater extent than the right of indemnification granted
to directors, if not inconsistent with public policy, and if provided for by
its articles of incorporation, bylaws, general or specific action of its board
of directors or contract.
The Registrant's Amended and Restated Bylaws (the "Bylaws") provide
that, subject to the limitations described below, the Registrant shall, to the
maximum extent and in the manner permitted by the Revised Act, indemnify any
individual made party to a proceeding because he is or was a director or
officer of the Registrant, against liability incurred in the proceeding if his
conduct was in good faith, he reasonably believed that his conduct was in, or
not opposed to, the Registrant's best interest and, in the case of any criminal
proceeding he had no reasonable cause to believe his conduct was unlawful. The
Registrant may not, however, extend such indemnification to an officer or
director in connection with a proceeding by or in the right of the Registrant
in which such person was adjudged liable to the Registrant, or in connection
with any other proceeding charging that such person derived an improper
personal benefit, whether or not involving action in his official capacity, in
which proceeding he was adjudged liable on the basis that he derived an
improper personal benefit, unless ordered by a court of competent jurisdiction.
Notwithstanding the foregoing, the Bylaws obligate the Registrant to indemnify
an officer or director who was successful on the merits or otherwise, in the
defense of any proceeding or the defense of any claim, issue or matter in the
proceeding to which he was a party because he is or was a director or officer
of the Registrant against reasonable expenses incurred in connection with the
proceeding or claim with respect to which he was successful. The Bylaws also
permit the Registrant to pay for or reimburse the reasonable expenses incurred
by an officer or director who is party to a proceeding in advance of final
disposition of the proceeding if (i) the officer or director furnishes to the
Registrant a written affirmation of his good faith belief that he has met the
applicable standard of conduct necessary for indemnification, (ii) the officer
or director furnishes to the Registrant a written undertaking to repay the
advance if it is ultimately determined that he did not meet the standard of
conduct, and (iii) a determination is made that the facts then known to those
making the determination would not preclude indemnification pursuant to the
Bylaws. The Bylaws also provide that any indemnification or advancement of
expenses provided thereby shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be entitled
under any articles of incorporation, bylaw, agreement, stockholders or
disinterested directors, or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office.
Utah law permits director liability to be eliminated in accordance
with Section 16-10a-841 of the Revised Act, which provides that the liability
of a director to the corporation or its stockholders for monetary damages for
any action taken or any failure to take any action, as a director, may be
limited or eliminated by the corporation except for liability for (i) the
amount of financial benefit received by a director to which he is not entitled;
(ii) an intentional infliction of harm on the corporation or its stockholders;
(iii) a violation of Section 16-10a-842 of the Revised Act which prohibits
unlawful distributions by a corporation to its stockholders; or (iv) an
intentional violation of criminal law. Such a provision may appear either in a
corporation's articles of incorporation or bylaws; however, to be effective,
such a provision must be approved by the corporation's stockholders.
4
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The Registrant's Restated Articles of Incorporation, as amended by the
Registrant's stockholders at the 1993 Annual Meeting of Stockholders (the
"Restated Articles"), provide that the personal liability of any director to
the Registrant or its stockholders for monetary damages for any action taken or
the failure to take any action, as a director, is eliminated to the fullest
extent permitted by Utah law.
The Bylaws provide that the Registrant may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee,
fiduciary or agent of the Registrant, or is or was serving at the request of
the Registrant as a director, officer, employee, fiduciary or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him or incurred by him in such capacity or arising
out of his status in such capacity, whether or not the Registrant would have
the power to indemnify him against such liability under the indemnification
provisions of the Bylaws or the laws of the State of Utah, as the same may
hereafter be amended or modified.
The Registrant maintains insurance from commercial carriers against
certain liabilities which may be incurred by its directors and officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See the Exhibit Index on page 9.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made of the 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 of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of this 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 this
Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in this Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3 or 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 the
Registrant pursuant to Section 13 or Section 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 a new Registration Statement relating to the
securities
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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 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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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 St. George, State of Utah, on August 8, 1995.
SKYWEST, INC.
By /s/ Jerry C. Atkin
-------------------------------------
Jerry C. Atkin
Chairman, President and Chief
Executive Officer
POWER OF ATTORNEY
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. Each person whose signature to this
Registration Statement appears below hereby constitutes and appoints Jerry C.
Atkin and Bradford R. Rich, and each of them, as his true and lawful
attorney-in-fact and agent, with full power of substitution, to sign on his
behalf individually and in the capacity stated below and to perform any acts
necessary to be done in order to file all amendments and post-effective
amendments to this Registration Statement, and any and all instruments or
documents filed as part of or in connection with this Registration Statement or
the amendments thereto and each of the undersigned does hereby ratify and
confirm all that said attorney-in-fact and agent, or his substitutes, shall do
or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Jerry C. Atkin Chairman, President and Chief Executive August 8, 1995
- ------------------------- Officer (Principal executive officer)
Jerry C. Atkin
/s/ Bradford R. Rich Executive Vice President and Chief August 8, 1995
- ------------------------- Financial Officer (Principal financial
Bradford R. Rich and accounting officer)
/s/ J. Ralph Atkin Director August 8, 1995
- -------------------------
J. Ralph Atkin
/s/ Sidney J. Atkin Director August 8, 1995
- -------------------------
Sidney J. Atkin
/s/ W. Martin Braham Director August 8, 1995
- -------------------------
W. Martin Braham
/s/ Mervyn K. Cox Director August 8, 1995
- -------------------------
Mervyn K. Cox
</TABLE>
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<TABLE>
<S> <C> <C>
Director August ___, 1995
- -------------------------
Ian M. Cumming
/s/ Henry J. Eyring Director August 8, 1995
- -------------------------
Henry J. Eyring
/s/ Steven F. Udvar-Hazy Director August 8, 1995
- -------------------------
Steven F. Udvar-Hazy
/s/ Hyrum W. Smith Director August 8, 1995
- -------------------------
Hyrum W. Smith
</TABLE>
8
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SKYWEST, INC.
EXHIBIT INDEX
<TABLE>
<CAPTION>
Regulation S-K Sequential System
Exhibit No. Description Page No.
- --------------- ----------- ------------------
<S> <C> <C>
4.1 Restated Articles of Incorporation of the
Registrant and all amendments thereto
(incorporated by reference to Exhibit No. 4.1
of the Registrant's Registration Statement on
Form S-8 (Reg. No. 33-60173) filed on June 12,
1995.
4.2 Amended and Restated Bylaws (incorporated by
reference to Exhibit No. 4.2 of the Registrant's
Registration Statement on Form S-3 (Reg. No.
33-74290) filed January 20, 1994.
4.3 SkyWest's AllShare Incentive Stock Option Plan.
5 Opinion of Kimball, Parr, Waddoups, Brown
& Gee, a professional corporation, as to the
legality of the securities offered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Kimball, Parr, Waddoups, Brown
& Gee (included in Exhibit No. 5).
24 Powers of Attorney (included on pages 7-8
hereof).
</TABLE>
9
<PAGE> 1
Exhibit 4.3
---------------------------
SKYWEST, INC.
---------------------------
SKYWEST'S ALLSHARE
INCENTIVE STOCK OPTION PLAN
SECTION 1. PURPOSE.
This SkyWest AllShare Incentive Stock Option Plan (hereinafter referred
to as the "Plan") is intended as a means whereby employees (hereinafter referred
to as "Employee" or "Employees" and "Optionee" or "Optionees") of SkyWest, Inc.
(hereinafter referred to as the "Company") or its subsidiaries (hereinafter
referred to as the "Subsidiaries") can each enlarge his or her proprietary
interest in the Company, thereby encouraging the judgment, initiative and
efforts of the Employees for the successful conduct of the Company's business.
The Plan is also intended to create common interests between the Employees and
the other shareholders of the Company, and to assist the Company in attracting,
retaining and motivating Employees.
SECTION 2. ADMINISTRATION OF THE PLAN.
The Board of Directors of the Company shall appoint a Stock Option
Committee (hereinafter referred to as the "Committee") of not less than three
(3) directors to administer the Plan. The members of the Committee shall serve
at the pleasure of the Board, which shall have the power at any time, or from
time to time, to remove members from the Committee or to add members thereto.
The Committee shall construe and interpret the Plan, establish such operating
guidelines and rules as it deems necessary for the proper administration of the
plan and make such determinations and take such other action in connection with
the Plan as it deems necessary and advisable. It shall determine the individuals
to whom and the time or times at which Options shall be granted, the number of
shares to be subject to each Option, the Option price and the duration of leaves
of absence which may be granted to participants without constituting a
termination of their employment for purposes of the Plan. Any such construction,
interpretation, rule, determination or other action taken by the Committee
pursuant to the Plan shall be final, binding and conclusive on all interested
parties, including the Company, its subsidiaries and all former, present and
future Employees of the Company or its Subsidiaries.
Actions by a majority of the Committee at a meeting at which a quorum is
present, or actions approved in writing by all of the members of the Committee,
shall be the valid acts of the Committee. No member of the Board of Directors or
the Committee shall be liable for any action or determination made in good faith
with respect to the Plan or any Option granted under it.
<PAGE> 2
SECTION 3. MAXIMUM NUMBER OF SHARES SUBJECT TO PLAN.
Subject to any adjustment as provided in the Plan, the shares to be
offered under the Plan may be, in whole or in part, authorized but unissued
Common Shares of the Company, or issued Common Shares which shall have been
reacquired by the Company and held by it as treasury shares. The aggregate
number of Common Shares to be delivered upon exercise of all Options granted
under the Plan shall not exceed 500,000 plus the amount of any additional Common
Shares which may result from any share distributions effected after the approval
of this Plan by the Board of Directors of the Company. If any Option granted
hereunder shall expire or terminate for any reason without having been exercised
in full, the unpurchased shares with respect thereto shall again be available
for other Options to be granted under the Plan unless the Plan shall have been
terminated.
SECTION 4. SELECTION OF OPTIONEES.
All those Employees of the Company or its Subsidiaries as shall be
determined from time to time by the Committee shall be eligible to participate
in the Plan, provided, however, that directors who are not Employees of the
Company and Employees of the Company who are subject to Section 16 of the
Securities Exchange Act of 1934 with respect to the Company's securities, will
not be eligible to receive Options under the Plan and, provided further, that no
Employee may be granted Options in the aggregate which would result in that
Employee receiving more than ten percent (10%) of the maximum number of shares
available for issuance under the Plan. Except as provided herein, any person who
has been granted an Option under a prior stock option plan of the Company may be
granted an additional Option or Options under the Plan if the Committee shall so
determine.
SECTION 5. OPTION PRICE.
The purchase price for the shares covered by each Option granted shall
be the fair market value of the shares on the date of the grant of the Option.
Such fair market value shall be equal to the closing sale price for Common
Shares of the Company as reported on The NASDAQ Stock Market, National Market
System, on such date.
SECTION 6. OPTION REQUIREMENTS.
The Options granted pursuant to the Plan shall be authorized by the
Committee and shall be evidenced in writing in a form approved by the Committee
and shall include the following terms and conditions:
(a) Optionee. Each Option shall state the name of the Optionee.
(b) Number of Shares. Each Option shall state the number of shares
to which that Option pertains.
(c) Purchase Price. Each Option shall state the Option price,
which shall be not less than one hundred percent (100%) of the fair market value
of the shares covered by such Option on the date of grant of such Option. See
Section 5, Option Price, and Section 27, date of grant.
(d) Payment. The purchase price for the Options being exercised
must be paid in full at the time of exercise in a manner acceptable to the
Committee. In addition, in order to enable the Company to meet any applicable
federal (including FICA), state and local withholding tax requirements,
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<PAGE> 3
an Optionee shall also be required to pay the amount of tax to be withheld at
the time of exercise. No Common shares will be delivered to any Optionee until
all such amounts have been paid.
(e) Length of Option. Each Option shall be granted for a period to
be determined by the Committee but in no event to exceed more than ten (10)
years. However, subject to Sections 9 and 10, each Option shall be exercisable
only during such portion of its term as the Committee shall determine, and only
if the Optionee is employed by the Company or a Subsidiary of the Company within
three months of the time of such exercise.
SECTION 7. METHOD OF EXERCISE OF OPTIONS.
Each Option shall be exercised pursuant to the terms of such Option and
pursuant to the terms of the plan by giving written notice to the Company at its
principal place of business or other address designated by the Company,
accompanied by a cash, check, shares or other property acceptable to the
Committee, in payment of the Option price for the number of shares specified and
paid for. From time to time the Committee may establish procedures relating to
effecting such exercises. No fractional shares shall be issued as a result of
exercising an Option. The Company shall make delivery of such shares as soon as
possible; provided, however, that if any law or regulation requires the Company
to take action with respect to the shares specified in such notice before
issuance thereof, the date of delivery of such shares shall then be extended for
the period necessary to take such action.
SECTION 8. NON-TRANSFERABILITY OF OPTIONS.
Except as set forth in Section 10, an Option is exercisable during an
Optionee's lifetime only by the Optionee. The Options shall not be transferable
except by will or the laws of descent and distribution, and shall terminate as
provided in this Plan.
SECTION 9. EARLIER TERMINATION OF OPTIONS.
Upon the termination of the Optionee's employment for any reason
whatsoever, including retirement, the Options will terminate as to all shares
covered by Options which have not become exercisable as of the date of such
termination and shall terminate as to all shares covered by Options which have
not been exercised within three (3) months of the date of such termination.
Notwithstanding the preceding sentence, however, Options shall be exercisable
following the death or disability of the Optionee as set forth in Section 10.
SECTION 10. EXERCISE UPON DEATH OR DISABILITY.
In the event an Optionee dies while employed by the Company or a
Subsidiary, the estate of the deceased Optionee shall have the right to exercise
any rights the Optionee would otherwise have under this Plan for a period of six
(6) months after the date of the Optionee's death, with exercise to be made as
set forth in Section 7.
In the event an Optionee becomes Disabled while employed by the Company
or a Subsidiary, the Optionee (or, in the event the Optionee is incapacitated
and unable to exercise Options, the Optionee's legal guardian or legal
representative whom the Committee deems appropriate based on applicable facts
and circumstances) shall have the right to exercise any rights the Optionee
would otherwise have under this Plan for a period of six (6) months after the
date the Optionee becomes Disabled, with exercise to be made as set forth in
Section 7.
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SECTION 11. INCENTIVE OR NON-QUALIFIED OPTIONS.
The Options granted under the Plan shall be designated by the Committee
as incentive options as that term is defined in Section 422 of the Internal
Revenue Code ("Incentive Options") or as non-qualified options, as the
Committee, in its sole discretion, may determine.
SECTION 12. INCENTIVE OPTIONS HOLDING PERIOD; DISQUALIFYING DISPOSITION.
With respect to the Common Shares acquired upon exercise of Options
designated as Incentive Options by the Committee, no sale of such shares can be
made within two years from the date said Option was granted or within one year
from the date said Option was exercised, whichever is greater. Any gain upon
sale of shares acquired upon exercise of Incentive Options and sold before the
expiration of the required period, a "Disqualifying Disposition," will be
treated as ordinary income to the Optionee.
SECTION 13. EFFECT OF CHANGE IN COMMON SHARES SUBJECT TO THE PLAN.
In the event any dividend upon the Common Shares payable in shares is
declared by the Company, or in case of any subdivision or combination of the
outstanding Common Shares, the aggregate number of Common Shares to be delivered
upon exercise of all Options granted under the Plan shall be increased or
decreased proportionately so that there will be no change in the aggregate
purchase price payable upon the exercise of the Option, and the maximum number
of Common Shares issuable under the Plan shall also be increased or decreased
proportionately. In the event of any other recapitalization or any
reorganization, merger, consolidation or any change in the corporate structure
or capital stock of the Company, the Committee shall make such adjustment, if
any, as it may deem appropriate to reflect accurately the terms of the Option as
to the number and kind of shares deliverable upon subsequent exercising of the
Option and in the Option prices under the Option.
SECTION 14. LISTING AND REGISTRATION OF COMMON SHARES; COMPLIANCE WITH
APPLICABLE LAWS.
If at any time the Committee shall determine that listing, registration
or qualification of the Common Shares covered by the Option upon any securities
exchange or quotation system or under any state or federal law, or the consent
or the approval of any governmental regulatory body is necessary or desirable as
a condition of or in connection with the purchase of Common Shares under the
Option, or, in the discretion of the Committee, the Option cannot be exercised
in accordance with applicable law, the Option may not be exercised in whole or
in part unless and until such listing, registration, qualification, consent,
approval or compliance shall have been effected or obtained free of any
conditions not acceptable to the Committee. Any person exercising an Option
shall make such representations and agreements and furnish such information as
the Committee may request to assure compliance with the foregoing or any other
applicable legal requirements.
SECTION 15. NO OBLIGATION TO EXERCISE OPTION.
The granting of a Option shall impose no obligation upon the Optionee to
exercise such option.
SECTION 16. MISCONDUCT.
In the event that an Optionee has (i) used for profit or disclosed to
unauthorized persons, confidential information or trade secrets of the Company
or its Subsidiaries, or (ii) breached any contract with or violated any
fiduciary obligation to the Company or its Subsidiaries including, without
limitation, any act by Optionee of dishonesty or fraud which act is materially
damaging or detrimental to the
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business or operations of the Company, or (iii) engaged in unlawful trading in
the securities of the Company or its Subsidiaries or of another company based on
information gained as a result of that Optionee's employment with the Company or
its Subsidiaries, then that Optionee shall forfeit all rights to any unexercised
Options granted under the Plan and all of that Optionee's outstanding Options
shall automatically terminate and lapse, unless the Committee shall determine
otherwise.
SECTION 17. BUY OUT OF OPTION GAINS.
At any time after any Option becomes exercisable, the Committee shall
have the right to elect, in its sole discretion and without the consent of the
holder thereof, to cancel such Option and pay to the Optionee the excess of the
fair market value of the Common Shares covered by such Option over the Option
price of such Option at the date the Committee provides written notice (the "Buy
Out Notice") of the intention to exercise such right. Buy outs pursuant to this
provision shall be effected by the Company as promptly as possible after the
date of the Buy Out Notice. Payments of buy out amounts may be made in cash, in
Common Shares or partly in cash, and partly in Common Shares, as the Committee
deems advisable. To the extent payment is made in Common Shares, the number of
shares shall be determined by dividing the amount of the payment to be made by
the fair market value of a Common Share at the date of the Buy Out Notice. In no
event shall the Company be required to deliver a fractional Common Share in
satisfaction of this buy out provision. Payments of any such buy out amounts
shall be made net of any applicable federal (including FICA), state and local
withholding taxes. For the purposes of this Section 18, fair market value shall
be equal to the closing sales price for Common Shares of the Company as reported
on The NASDAQ Stock Market, National Market System, on the relevant date.
SECTION 18. NO RIGHTS TO OPTIONS OR EMPLOYMENT.
No Employee or other person shall have any claim or right to be granted
an Option under the Plan. Having received an Option under the Plan shall not
give an Employee any right to receive any other grant under the Plan. An
Optionee shall have no rights to or interest in any Option except as set forth
herein. Neither the Plan nor any action taken herein alters the status of
Employee's employment as an at-will employee of the Company or shall be
construed as giving any Employee any right to be retained in the employ of the
Company or its Subsidiaries.
SECTION 19. MERGER, CONSOLIDATION, ETC..
In the event that the Company is a party to a plan or agreement for
merger or consolidation or reclassification of its securities or the exchange of
its securities for the securities of another person which has acquired the
Company's assets or which is in control (as defined in Section 368(c) of the
Internal Revenue Code of 1986, as amended) of a person which has acquired the
Company's assets, where the terms of such plan or agreement are binding upon all
shareholders of the Company, except to the extent that dissenting shareholders
may be entitled to relief under Part 13 of the Utah Revised Business Corporation
Act, then Options granted and outstanding pursuant to the Plan, notwithstanding
the date of exercise fixed in the grant of such Options, shall become
immediately exercisable and each Optionee shall be entitled to receive, upon
payment of the amount required for exercise of each Option, securities or cash
consideration, or both, equal to those the Optionee would have been entitled to
receive under such plan or agreement if the Optionee had already exercised such
Option. Each outstanding Option shall also be subject to the agreement governing
any merger or consolidation, reclassification or exchange of securities which
agreement may provide, without limitation, for the conversion of outstanding
Options into options to acquire securities of the surviving corporation.
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SECTION 20. AMENDMENT OR TERMINATION.
The Board of Directors may amend or terminate the Plan at any time,
provided that the Board of Directors shall not (except as provided in Sections
9, 10 and 13 hereof) make any change in the Options which will impair the rights
of the Optionee therein, without the consent of the Optionee. No option shall be
granted hereunder after November 7, 2004.
SECTION 21. OTHER ACTIONS.
This Plan shall not restrict the authority of the Committee, the Board
of Directors or of the Company or its Subsidiaries for proper corporate purposes
to grant or assume stock options, other than under the Plan, to or with respect
to any Employee or other person.
SECTION 22. COSTS AND EXPENSES.
Except as provided in Section 6(d) hereof with respect to taxes, the
costs and expenses of administering the Plan shall be borne by the Company, and
shall not be charged to any grant nor to any Employee receiving a grant.
SECTION 23. PLAN UNFUNDED.
The Plan shall be unfunded. Except for reserving a sufficient number of
authorized shares to the extent required by law to meet the requirements of the
Plan, the Company shall not be required to establish any special or separate
fund or to make any other segregation of assets to assure payment of any grant
under the Plan.
SECTION 24. LAWS GOVERNING PLAN.
This Plan shall be construed under and governed by the laws of the State
of Utah.
SECTION 25. CAPTIONS.
The captions to the several sections hereof are not a part of this Plan,
but are merely guides or labels to assist in locating and reading the several
sections hereof.
SECTION 26. EFFECTIVE DATE.
The Plan shall become effective on the date it is approved by the Board
of Directors of the Company, subject however, to approval by the shareholders of
the Company within twelve (12) months of such date. Any Options granted prior to
shareholder approval shall be expressly conditioned upon receiving such
approval.
SECTION 27. DEFINITIONS.
Unless the context clearly indicates otherwise, the following terms,
when used in this Plan, shall have the meaning set forth below:
(a) The "date of grant" or "grant date" of an Option shall be the
date on which an Option is granted under the Plan.
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(b) "Option" means the right granted under the Plan to an Optionee
to purchase a Common Share of the Company at a fixed price for a specified
period of time.
(c) "Option price" means the price at which a Common Share covered
by an Option granted hereunder may be purchased.
(d) With regard to any particular Employee, "Disabled" shall have
the meaning set forth in the Company's long term disability program applicable
to such Employee.
ADOPTED as of the 8th day of November, 1994.
BY THE BOARD OF DIRECTORS:
/s/ Eric Christensen
--------------------
Secretary
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EXHIBIT 5
Law Offices of
KIMBALL, PARR, WADDOUPS, BROWN & GEE
a Professional Corporation
Suite 1300
185 South State Street
Post Office Box 11019
Salt Lake City, Utah 84147-0019
Telephone (801) 532-7840
Telecopier (801) 532-7750
August 31, 1995
The Board of Directors of SkyWest, Inc.
444 South River Road
St. George, Utah 84770
Re: SkyWest, Inc. Registration Statement on Form S-8
Gentlemen:
As counsel to SkyWest, Inc., a Utah corporation (the "Company"),
in connection with the Company's Registration Statement on Form S-8 (the
"Registration Statement") to be filed under the Securities Act of 1933, as
amended, for registration of 500,000 shares (the "Shares") of Common Stock, no
par value, of the Company to be offered, sold and issued by the Company pursuant
to SkyWest's AllShare Incentive Stock Option Plan (the "Plan"), we have examined
the originals or certified, conformed or reproduction copies of all such
records, agreements, instruments and documents as we have deemed necessary as
the basis for the opinion expressed herein. In all such examinations, we have
assumed the genuineness of all signatures on original or certified copies and
the conformity to original or certified copies of all copies submitted to us as
conformed or reproduction copies. As to various questions of fact relevant to
the opinion hereinafter expressed, we have relied upon certificates of public
officials and statements or certificates of officers or representatives of the
Company and others.
Based upon and subject to the foregoing, we are of the opinion
that the Shares, when issued in accordance with the terms and conditions of the
Plan and pursuant to the Registration Statement, will be legally issued, fully
paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement.
Very truly yours,
KIMBALL, PARR, WADDOUPS, BROWN & GEE
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-8 of our
reports dated May 26, 1995 included in or incorporated by reference in SkyWest,
Inc.'s Form 10-K for the year ended March 31, 1995 and to all references to our
Firm included in this Registration Statement on Form S-8.
ARTHUR ANDERSEN LLP
Salt Lake City, Utah
August 31, 1995
