<PAGE> 1
As filed with the Securities and Exchange Commission on June 12, 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, INC.
1995 EMPLOYEE STOCK PURCHASE 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)
--------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==========================================================================================================
Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Title of Securities to be Amount to be Price per Offering Registration
Registered Registered Share(1) Price(1) Fee(1)
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares, no par value . . . 500,000 shares $16.63 $8,315,000 $2,867.25
==========================================================================================================
</TABLE>
(1) Pursuant to Rules 457(h)(1) and 457(c), 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 June 6, 1995.
===============================================================================
<PAGE> 2
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, 1994, which contains, among other things, the
consolidated financial statements of the Registrant for the three-year period
ended March 31, 1994, together with the report thereon of Arthur Andersen LLP,
independent public accountants.
(2) The Registrant's Quarterly Reports on Form 10-Q (File No. 0-14719)
for the quarters ended June 30, September 30 and December 31, 1994.
(3) The Registrant's Current Report on Form 10-C (File No. 0-14719)
dated effective as of November 29, 1994.
(4) The Registrant's Current Report on Form 10-C (File No. 0-14719)
dated effective as of February 1, 1995.
(5) 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"), which
description is included under the heading "Description of Capital Stock" on
pages 21 of the Registrant's prospectus dated June 26, 1986 contained in
Amendment No. 2 to the Registrant's Registration Statement on Form S-1
(Registration No. 33-5823), 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.
The financial statements and schedules of the Company included in the
Company's Annual Report on Form 10-K for the fiscal year ended March 31, 1994
incorporated by reference in the Prospectus and elsewhere in the related
Registration Statement on Form S-8, have been audited by Arthur Andersen LLP,
independent public
2
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accountants, as indicated in their report with respect thereto, and are included
therein in reliance upon the authority of said firm as experts in giving said
reports.
Future financial statements of the Company and the reports thereon of
Arthur Andersen LLP also will be incorporated by reference in the Prospectus in
reliance upon the authority of that firm as experts in giving those reports;
provided, however, only to the extent that the 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
3
<PAGE> 4
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
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
4
<PAGE> 5
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.
The Registrant's Restated Articles of Incorporation, as amended by the
Company'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
5
<PAGE> 6
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
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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<PAGE> 7
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 June 12, 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 June 7, 1995
- ----------------------------- Officer (Principal executive officer)
Jerry C. Atkin
Director June __, 1995
- -----------------------------
J. Ralph Atkin
/s/ Sidney J. Atkin Director June 7, 1995
- -----------------------------
Sidney J. Atkin
/s/ Bradford R. Rich Executive Vice President and Chief June 12, 1995
- ----------------------------- Financial Officer (Principal financial
Bradford R. Rich and accounting officer)
/s/ Lee C. Atkin Director June 7, 1995
- -----------------------------
Lee C. Atkin
/s/ Dell C. Stout Director June 6, 1995
- -----------------------------
Dell C. Stout
7
</TABLE>
<PAGE> 8
<TABLE>
<S> <C> <C>
/s/ Mervyn K. Cox Director June 7, 1995
- -----------------------------
Mervyn K. Cox
/s/ Brent V. Atkin Director June 5, 1995
- -----------------------------
Brent V. Atkin
Director June __, 1995
- -----------------------------
Ian M. Cumming
Director June __, 1995
- -----------------------------
Steven F. Udvar-Hazy
Director June __, 1995
- -----------------------------
W. Martin Braham
</TABLE>
8
<PAGE> 9
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.
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 1995 Employee Stock Purchase 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 4.1
RESTATED ARTICLES OF INCORPORATION
OF
SKYWEST, INC.
WE, THE UNDERSIGNED, being the President and Secretary of SKYWEST,
INC., and acting pursuant to a resolution adopted by the board of directors of
said corporation at a meeting of said board of directors held on May 14, 1986
setting forth proposed restated articles of incorporation and stating that the
same correctly set forth without change the corresponding provisions of the
articles of incorporation as previously amended, hereby set forth in full and
sign said restated articles of incorporation:
ARTICLE I - NAME
The name of this corporation is SKYWEST, INC.
ARTICLE II - DURATION
The duration of this corporation is perpetual.
ARTICLE III - PURPOSES
The purpose or purposes for which this corporation is organized are:
a. To own, operate, manage, and maintain a general aviation
business and to engage in the sale, service and maintenance of
aircraft, to do charter, airline and any and all types and kinds of
flying services for hire and further to sell gasoline and any and all
concessions that would be used in the general aviation industry and to
give flight instruction both in the air and on the ground for any and
all licenses and ratings offered and approved by the Federal Aviation
Administration.
b. To acquire by purchase, exchange, gift, bequest,
subscription, or otherwise, and to hold, own, mortgage, pledge,
hypothecate, sell, assign, transfer, exchange, or otherwise dispose of
or deal in or with its own corporate securities or stock or other
securities, including without limitation, any shares of stock, bonds,
debentures, notes, mortgages, or other obligations, and any
certificates, receipts or other instruments representing rights or
interests therein or any property or assets created or issued by any
person, firm, association, or corporation, or any government or
subdivision, agency or instrumentality thereof; to make payment
therefore in any lawful manner or to use its unrestricted and
unreserved earned surplus for the purchase of its own shares, and to
exercise as owner or holder of any
<PAGE> 2
securities, any and all rights, powers and privileges in respect
thereof.
c. To do each and every thing necessary, suitable or proper for
the accomplishment of any of the purposes or the attainment of any one
or more of the subjects herein enumerated, or which may at any time
appear conducive to or expedient for protection or benefit of this
corporation, and to do said acts as fully and to the same extent as
natural persons might, or could do, in any part of the world as
principals, agents, partners, trustees or otherwise, either alone or in
conjunction with any other person, association or corporation.
d. The foregoing clauses shall be construed both as purposes
and powers and shall not be held to limit or restrict in any manner the
general powers of the corporation, and the enjoyment and exercise
thereof, as conferred by the laws of the State of Utah; and it is the
intention that the purposes and powers specified in each of the
paragraphs of this Article III shall be regarded as independent
purposes and powers.
ARTICLE IV - AUTHORIZED SHARES
This corporation is authorized to issue two classes of shares, to be
designated respectively Common Shares and Preferred Shares, as follows:
(a) The total number of Common Shares which this corporation shall have
authority to issue is 20,000,000, no par value per share.
(b) The total number of Preferred Shares which this corporation shall
have authority to issue is 5,000,000, no par value per share. The Board of
Directors shall have authority, without shareholder approval and by resolution
of the Board of Directors, to divide this class of Preferred Shares into series,
to designate each such series by a distinguishing letter, number, or title so as
to distinguish the shares thereof from the shares of all other series and
classes, and to fix and determine the following relative rights and preferences
of the shares of each series so established: (i) the rate of dividend, (ii) the
price at which, and the terms and conditions on which, the shares may be
redeemed, (iii) the amount payable upon the shares in the event of involuntary
liquidation, (iv) the amount payable upon the shares in the event of voluntary
liquidation, (v) any sinking fund provision for the redemption or purchase of
the shares, and (vi) the terms and conditions on which the shares may be
converted to sharesof another series or class, if the shares of any series are
issued with the privilege of conversion.
- 2 -
<PAGE> 3
ARTICLE V - AMENDMENT
These Articles of Incorporation may be amended by the affirmative vote
of a majority of the shares entitled to vote on each such amendment.
ARTICLE VI - SHAREHOLDER RIGHTS
The authorized treasury stock of this corporation may be issued at such
time, upon such terms and conditions and for such consideration as the Board of
Directors shall determine. Shareholders shall not have any preemptive rights.
At each election of Directors, each shareholder entitled to vote at
such election shall not have the right to accumulate his votes by giving one
candidate as many votes as the number of such Directors multiplied by the number
of his shares shall equal, or by distributing such votes on the same principle
among any number of such candidates.
ARTICLE VII - CAPITALIZATION
This corporation will not commence business until consideration of a
value of at least $1,000 has been received for the issuance of shares.
ARTICLE VIII - INITIAL OFFICE AND AGENT
The address of this corporation's initial registered office and the
name of its original registered agent at such address is: J. RALPH ATKIN, 37
North Main Street, St. George, Utah, 84770.
ARTICLE IX - DIRECTOR
The number of Directors constituting the initial Board of Directors of
this corporation is five (5). The names and addresses of persons who are to
serve as Directors until the first annual meeting of the stockholders, or until
their successors are elected and qualify, are :
J. Ralph Atkin 914 Bloomington Drive
St. George, Utah 84770
Jerry Fackrell 355 West 200 North
St. George, Utah 84770
Garn Huntington Middleton
St. George, Utah 84770
B. Glen Crawford 220 West 300 South
St. George, Utah 84770
- 3 -
<PAGE> 4
D. Scott McGregor 481 West 400 North
St. George, Utah 84770
(a) At the first annual meeting of the shareholders of the Corporation
and at each annual meeting thereafter, the shareholders shall elect Directors to
hold office until the next succeeding annual meeting of the shareholders. Each
Director so elected shall hold office for the term which he is elected, and
until his successors shall have been elected and qualified. Directors need not
be residents of the State of Utah, nor shareholders of the Corporation.
(b) The number of Directors of the Corporation, after its annual Board
of Directors meeting, shall be fixed by the by-laws of the Corporation, but
shall not in any case be less than three (3) in number, nor more than eleven.
Such number may be increased or decreased from time to time by amendments to the
Articles of Incorporation and the by-laws of the Corporation, but no decrease
thereof shall have the effect of shortening the term of any incumbent Director.
(c) The Board of Directors may sell, lease, exchange, mortgage, pledge,
or otherwise dispose of all or substantially all of the property and assets of
the Corporation, with or without the goodwill, upon such terms and conditions
and for such consideration as they deem necessary or desirable, without
stockholder approval.
ARTICLE X - INCORPORATORS
The name and address of each Incorporator is:
J. Ralph Atkin 914 Bloomington Drive
St. George, Utah 84770
Garn Huntington Middleton
St. George, Utah 84770
B. Glen Crawford 220 West 300 South
St. George, Utah 84770
ARTICLE XI
COMMON DIRECTORS - TRANSACTIONS BETWEEN CORPORATIONS
No contract or other transaction between this corporation and one or
more of its Directors or any other corporation, firm, association or entity in
which one or more of its Directors are directors or officers or are financially
interested, shall be either void or voidable because of such relationship or
interest, or because such Director or Directors are present at the meeting of
the Board of Directors, or a committee thereof which authorizes, approves or
ratifies such contract or transaction, or because his or their votes are counted
for such purpose if: (a) the fact of
- 4 -
<PAGE> 5
such relationship or interest is disclosed or known to the Board of Directors or
committee which authorizes, approves or ratifies the contract or transaction by
vote or consent sufficient for the purpose without counting the votes or
consents of such interested Director; or (b) the fact of such relationship or
interest is disclosed or known to the shareholders entitled to vote and they
authorize, approve or ratify such contract or transaction by vote or written
consent; or (c) the contract or transaction is fair and reasonable to the
corporation.
Common or interested Directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or committee thereof
which authorizes, approves or ratifies such contract or transaction.
DATED this 14 day of May, 1986.
/s/ Jerry C. Atkin
-------------------------
JERRY C. ATKIN, President
/s/ J. Ralph Atkin
-------------------------
J. RALPH ATKIN, Secretary
STATE OF UTAH )
) SS.
COUNTY OF WASHINGTON )
On the 14 day of May, 1986, personally appeared before me Jerry C.
Atkin and J. Ralph Atkin, who being by me duly sworn did say, each for himself,
that he, the said Jerry C. Atkin is the President, and he, the said J. Ralph
Atkin is the Secretary of SKYWEST, INC., and that the within and foregoing
instrument was signed in behalf of said corporation by authority of a resolution
of its Board of Directors, and said Jerry C. Atkin and J. Ralph Atkin each duly
acknowledge to me that said Corporation executed the same and that the seal
affixed is the seal of said Corporation.
My Commission Expires: /s/ Janice N. Hardy
-------------------------------
October 20, 1987 NOTARY PUBLIC
Residing at: St. George, Utah
- 5 -
<PAGE> 6
ARTICLES OF AMENDMENT
OF THE
RESTATED ARTICLES OF INCORPORATION
OF
SKYWEST, INC.
Pursuant to the provisions of the Utah Revised Business Corporation
Act, the undersigned corporation does hereby adopt the following amendment of
its Restated Articles of Incorporation and does hereby certify as follows:
1. The name of the corporation is SkyWest, Inc.
2. The Restated Articles of Incorporations are hereby amended as
follows:
a. Article IX of the Restated Articles of Incorporation of the
corporation is hereby amended to read in its
entirety as follows:
"ARTICLE IX - DIRECTORS
(a) The number of Directors of the corporation shall be fixed
in accordance with the By-Laws of the corporation, but shall
not in any case be less than three (3) in number, nor more than
eleven (11).
(b) The authorized number of Directors shall be divided into
three classes as nearly equal in number as possible. The
members of each class shall be elected for a term of three
years, and until their successors are elected and qualified. At
each annual meeting of the shareholders, one class of Directors
shall be elected to succeed the class of Directors whose terms
expire at such annual meeting.
(c) The Board of Directors may sell, lease, exchange, mortgage,
pledge, or otherwise dispose of all or substantially all of the
property and assets of the corporation, with or without the
goodwill, upon such terms and conditions and for such
consideration as they deem necessary or desirable, without
stockholder approval."
<PAGE> 7
b. A new Article XII is hereby added to the Restated Articles
of Incorporation to read in its entirety as follows:
"ARTICLE XII - DIRECTOR LIABILITY
The personal liability of any director to the corporation or to
its shareholders for monetary damages for any action taken or any
failure to take any action, as a director, is hereby eliminated to the
fullest extent permitted by Utah law. In the event the applicable Utah
law is amended to decrease or limit in any manner the protection or
rights available to directors hereunder, such amendment shall not be
retroactively applied in determining the personal liability of a
director pursuant to this Article XII prior to the enactment of such
amendment."
3. The amendments to the Articles of Incorporation were adopted by the
stockholders of the corporation on August 3, 1993.
4. The number of shares outstanding as of the record date for
determining stockholders entitled to vote on the amendments was Nine Million
Nine Hundred Forty-Five Thousand Six Hundred Eighteen (9,945,618) shares of
Common Stock, no par value, and the number of shares entitled to vote thereon
was Nine Million Nine Hundred Forty-Five Thousand Six Hundred Eighteen
(9,945,618). No other class of shares was issued and outstanding. The number of
shares represented at the meeting was Six Million Eight Hundred Twenty-Nine
Thousand Two Hundred Forty-Eight (6,829,248).
5. The number of shares of Common Stock voted for the amendment to
Article IX was Five Million One Hundred One Thousand Two Hundred Sixty-Seven
(5,101,267). Seven Hundred Forty-Seven Thousand Eight Hundred Seventeen
(747,817) shares of Common Stock voted against such amendment.
6. The number of shares of Common Stock voted for the amendment to add
Article XII was Five Million Six Hundred Twenty-Nine Thousand One Hundred
Fifty-Six (5,629,156). Two Hundred Sixty-Five Thousand Five Hundred Thirty-Eight
(265,538) shares of Common Stock voted against such amendment.
DATED the 11 day of August, 1993.
SKYWEST, INC.
By: /s/ Jerry C. Atkin
-----------------------------
Jerry C. Atkin, President and
Chief Executive Officer
-2-
<PAGE> 8
ARTICLES OF AMENDMENT
RESTATED ARTICLES OF INCORPORATION
OF
SKYWEST, INC.
PURSUANT TO THE PROVISIONS of the Utah Revised Business Corporation
Act, the undersigned corporation (the "Corporation") hereby adopts the following
Articles of Amendment to its Restated Articles of Incorporation:
I.
The name of the Corporation is SkyWest, Inc.
II.
The following amendments to the Restated Articles of Incorporation were
adopted by the shareholders of the Corporation on August 9, 1994 in the manner
prescribed by the Utah Revised Business Corporation Act:
Article IV of the Restated Articles of Incorporation is hereby amended
to read as follows:
ARTICLE IV
(a) The total number of Common Shares which this Corporation
shall have authority to issue is 40,000,000, no par value per share.
(b) The total number of Preferred Shares which this Corporation
shall have authority to issue is 5,000,000, no par value per share. The
Board of Directors shall have authority, without shareholder approval
and by resolution of the Board of Directors, to divide this class of
Preferred Shares into series, to designate each such series by a
distinguishing letter, number or title so as to distinguish the shares
thereof from the shares of all other series and classes, and to fix and
determine the following relative rights and preferences of the shares
of each series so established: (i) the rate of dividend, (ii) the price
at which, and the terms and conditions on which, the shares may be
redeemed, (iii) the amount payable upon the shares in the event of
involuntary liquidation, (iv) the amount payable upon the shares in the
event of voluntary liquidation, (v) any sinking fund provision for the
redemption or purchase of the shares, and (vi) the terms and conditions
on which the shares may be converted to shares of another series or
class, if the shares of any series are issued with the privilege of
conversion.
<PAGE> 9
Article IX of the Restated Articles of Incorporation is hereby amended
to read as follows:
ARTICLE IX
(a) The number of Directors of the Corporation shall be fixed
in accordance with the By-Laws of the Corporation, but shall not in any
case be less than three (3) in number, nor more than eleven (11).
(b) The Board of Directors may sell, lease, exchange, mortgage,
pledge, or otherwise dispose of all or substantially all of the
property and assets of the Corporation, with or without the goodwill,
upon such terms and conditions and for such consideration as they deem
necessary or desirable, without stockholder approval.
III.
The number of shares outstanding as of the date the foregoing
amendments were approved by the shareholders was 11,460,556 shares of Common
Stock, no par value (the "Common Stock"). The number of shares of the Common
Stock entitled to vote on such amendment was 11,460,556 shares. The number of
shares of Common Stock represented at the Annual Meeting of Shareholders at
which the foregoing amendments were approved was 9,491,852 shares. No
other class of shares was issued and outstanding.
IV.
The number of shares of the Common Stock voted for the Amendment to
Article IV was 7,606,036 and the number of shares which were voted
against such amendment were 1,870,216. The number of shares of Common
Stock voted for the Amendment to Article IX were 8,290,946 and the
number of shares which were voted against such amendment were 148,214.
DATED as of the 9th day of August, 1994.
SKYWEST, INC.
By: /s/ Jerry C. Atkin
--------------------------------
Its: President
-2-
<PAGE> 10
STATE OF UTAH )
: ss.
COUNTY OF WASHINGTON )
On this 9th day of August, 1994, personally appeared before me, Jerry
C. Atkin who being duly sworn by me, severally declared that he is the President
of SkyWest, Inc., a Utah corporation, and acknolwedged to me that he is the
person who signed the foregoing instrument for and on behalf of said corporation
and that the statements contained therein are true.
/s/ Lorraine Caldwell
------------------------------
NOTARY PUBLIC
Residing at: Washington County
My Commission Expires:
August 1, 1996
[seal]
-3-
<PAGE> 1
EXHIBIT 4.3
---------------------------
SKYWEST, INC.
---------------------------
1995
EMPLOYEE STOCK PURCHASE PLAN
ARTICLE 1. THE PLAN
SkyWest, Inc., a Utah corporation (the "Company"), hereby establishes
the SkyWest, Inc. 1995 Employee Stock Purchase Plan (the "Plan"), to provide a
method whereby employees of the Company and certain of its subsidiaries will
have an opportunity to acquire a proprietary interest in the Company through the
purchase of shares of the no par value Common Stock of the Company (the "Common
Stock"). The Plan is intended to qualify as an "employee stock purchase plan"
under section 423 of the Internal Revenue Code of 1986, as amended (the "Code").
The provisions of the Plan shall be construed so as to meet all of the
requirements of such a plan under Code section 423.
ARTICLE 2. DEFINITIONS
2.1 Base Pay. "Base Pay" shall mean salary, wages or other regular rate
of pay, including overtime, before reduction for contributions to plans
maintained under Code section 401(k) and 125 (such as profit-sharing and
cafeteria plans), but excluding bonuses, shift premiums, and other extraordinary
forms of compensation.
2.2 Committee. "Committee" shall mean the committee described in
Article 11.
2.3 Employee. "Employee" shall mean any common-law employee of the
Company.
2.4 Subsidiary. "Subsidiary" shall mean any present or future
corporation which would be a "subsidiary corporation" with respect to the
Company as that term is defined in Code section 424. A Subsidiary's employees
shall participate in the Plan, however, only if the Subsidiary is designated as
a participating Subsidiary by the Committee. References in the Plan to
employment by, or periods of employment with, the Company include employment by
or with all such participating Subsidiaries, including during periods of
employment prior to such participation.
ARTICLE 3. ELIGIBILITY AND PARTICIPATION
3.1 Initial Eligibility. Any Employee who has completed 90 days'
employment by the Company and shall be employed by the Company on the applicable
Offering Commencement Date shall
<PAGE> 2
be eligible to participate in such Offering. Whether or not an Employee
participates in any Offering will not have any effect on eligibility in
subsequent Offerings.
3.2 Leave of Absence. For purposes of eligibility to participate in an
Offering, a person on a leave of absence from the Company shall be deemed to be
an Employee for the first 90 days of such leave of absence but such Employee's
employment shall be deemed to have terminated at the close of business on the
90th day of such leave of absence unless such Employee shall have returned to
regular full-time or part-time (as the case may be) employment prior to the
close of business on such 90th day. Termination by the Company of any Employee's
leave of absence, other than termination of such leave of absence on return to
full-time or part-time employment, shall terminate an Employee's employment for
all purposes of the Plan and shall terminate such Employee's eligibility to
participate in Offerings and the right to exercise any option previously
granted.
3.3 Restrictions on Participation. Notwithstanding any other Plan
provision to the contrary, no Employee shall be granted an option to purchase
Common Stock under the Plan:
(a) if, immediately after the grant, such Employee would own stock,
and/or hold outstanding options to purchase stock, possessing 5% or more of the
total combined voting power or value of all classes of stock of the Company or
of any Subsidiary (for purposes of this paragraph, the rules of section 424(d)
of the Code shall apply in determining stock ownership of any employee); or
(b) which permits the Employee's rights to purchase stock under all
employee stock purchase plans of the Company or any of its Subsidiaries to
accrue at a rate which exceeds $25,000 in fair market value of the stock
(determined at the time such option is granted) for each calendar year in which
such option is at any time outstanding.
3.4 Commencement of Participation.
(a) An eligible Employee may become a participant by completing an
authorization for a payroll deduction on the form provided by the Company and
filing it with the Employee Benefits Department of the Company during the month
immediately preceding the applicable Offering Commencement Date for an Offering
(as those terms are defined below) or at such other times or places as may be
established from time to time by the Committee.
(b) Payroll deductions for a participant shall commence with the
first payday on or after the applicable Offering Commencement Date when an
authorization for a payroll deduction becomes effective and shall end with the
last payday on or before the Offering Termination Date of the Offering to which
such authorization is applicable unless sooner terminated by the participant as
provided in Article 8.
ARTICLE 4. OFFERINGS
4.1 Offerings. The Plan will be implemented by five annual offerings of
Common Stock (the "Offerings") beginning on the 1st day of July in each of the
years 1995 through 1999, each Offering terminating on June 30 of the following
year; provided, however, that each annual Offering may, in the discretion of the
Committee exercised prior to the commencement thereof, be divided into two
six-month
2
<PAGE> 3
Offerings commencing, respectively, on July 1 and January 1 and terminating on
December 31 and June 30, respectively. The maximum number of shares issued in
the respective Offerings shall be:
- From July 1, 1995 to June 30, 1996: 100,000 shares.
- In each succeeding year (July 1 to June 30): 100,000
shares, plus unissued shares from the prior Offerings,
whether offered or not.
If six-month Offerings are made, the maximum number of shares to be issued shall
be one-half of the number of shares set forth for the annual period in which the
six-month Offering falls (i.e. one-half of 100,000 shares plus one-half of the
unissued shares from the prior Offerings), plus, if the Offering is a January
Offering, unissued shares, whether offered or not, from the immediately
preceding six-month Offering. As used in the Plan, "Offering Commencement Date"
means the July 1 or January 1, as the case may be, on which the particular
Offering begins and "Offering Termination Date" means the December 31 or June
30, as the case may be, on which the particular Offering terminates.
ARTICLE 5. PAYROLL DEDUCTIONS
5.1 Amount of Deduction. At the time a participant files his
authorization for payroll deduction, the participant shall elect to have
deductions made from his or her pay on each payday during the time the Employee
is a participant in an Offering at any rate designated by the Employee but not
less than 2% and not more than 15% of the participant's Base Pay, in effect on
the Offering Commencement Date of such Offering.
5.2 Participant's Account. All payroll deductions made for a
participant shall be credited to an account for the participant under the Plan.
A participant may not make any separate cash payment into such account except
when on leave of absence and then only as provided in Section 5.4 hereof.
5.3 Changes in Payroll Deductions. A participant may discontinue
participation in the Plan as provided in Article 8, but no other change can be
made during an Offering and, specifically, a participant may not alter the
amount of payroll deductions for that Offering.
5.4 Leave of Absence. If a participant goes on a leave of absence, such
participant shall have the right to elect: (a) to withdraw the balance in his or
her account pursuant to Section 7.2 hereof, (b) to discontinue contributions to
the Plan but remain a participant in the Plan with respect to the amounts
contributed prior to the cessation of contributions, or (c) to remain a
participant in the Plan during such leave of absence, authorizing deductions to
be made from payments by the Company to the participant during such leave of
absence and undertaking to make cash payments to the Plan on each payday to the
extent that amounts payable by the Company to such participant are insufficient
to meet such participant's authorized Plan payroll deductions. The options in
(b) and (c) above are subject, however, to the limitations on the period of
leaves of absence set forth in Section 8.5.
ARTICLE 6. GRANTING OF OPTIONS
6.1 Number of Option Shares.
(a) On the applicable Offering Commencement Date, a participating
Employee shall be deemed to have been granted an option to purchase a maximum
number of shares of Common Stock equal to an amount determined as follows: an
amount equal to (i) that percentage of the Employee's Base Pay which he has
elected to have withheld multiplied by (ii) the Employee's projected Base Pay
for the
3
<PAGE> 4
applicable Offering Period, and (iii) divided by 85% of the market value of the
Common Stock on the applicable Offering Commencement Date. The market value of
the Common Stock shall be determined as provided in paragraph (a) of Section 6.2
below.
(b) An Employee's projected Base Pay for an Offering Period shall
be determined by multiplying, in the case of an annual Offering, his normal
bi-weekly rate of Base Pay (as in effect on the last day prior to the
Commencement Date of the Offering) by 26 or the hourly rate by 2,080 or, in the
case of a six-month offering, by 13 or 1040, as the case may be; provided that,
in the case of a part-time hourly employee, the Employee's projected Base Pay
during the Offering Period shall be determined by multiplying such Employee's
hourly rate by the number of regularly scheduled hours of work for such Employee
during such Offering; and further provided that, in the case of Employees paid
on the basis of flight hours, the flight hour rate shall be multiplied by 1,000
or, in the case of a six-month offering, by 500.
6.2 Option Price. The option price of Common Stock purchased
with payroll deductions made during each Offering for a participant therein
shall be the lower of:
(a) 85% of the closing sale price of the stock on the NASDAQ Stock
Market/National Market System ("NASDAQ/NMS") on the applicable Offering
Commencement Date (or on the nearest prior business day on which shares of
Common Stock are traded on the NASDAQ/NMS if no shares of Common Stock are
traded on the applicable Offering Commencement Date); or
(b) 85% of the NASDAQ/NMS closing sale price of the stock on the
NASDAQ/NMS on the applicable Offering Termination Date (or on the nearest prior
business day on which shares of Common Stock are traded on the NASDAQ/NMS if no
shares of Common Stock are traded on the applicable Offering Termination Date).
ARTICLE 7. EXERCISE OF OPTION
7.1 Automatic Exercise. Unless a participant gives written notice to
the Company as hereinafter provided, his option to purchase Common Stock with
payroll deductions made during any Offering Period will be deemed to have been
exercised automatically on the Offering Termination Date applicable to such
Offering, for the purchase of the number of full shares of Common Stock which
the accumulated payroll deductions in his account at that time will purchase at
the applicable option price (but not in excess of the number of shares for which
options have been granted to the participant pursuant to Section 6.1), and any
excess in his account at that time will be returned to the participant.
7.2 Withdrawal of Account. By written notice to the Employee Benefits
Department of the Company, at any time prior to the Offering Termination Date
applicable to any Offering, a participant may elect to withdraw all the
accumulated payroll deductions credited to his account at such time.
7.3 Fractional Shares. Fractional shares will not be issued under the
Plan and any accumulated payroll deductions which would have been used to
purchase fractional shares will be held by the Company to be used in the next
Offering, unless the participant requests in writing that such amount be
returned.
7.4 Transferability of Option. During a participant's lifetime, options
held by such participant shall be exercisable only by that participant.
4
<PAGE> 5
7.5 Delivery of Stock. As promptly as practicable after the Offering
Termination Date of each Offering, the Company will deliver to each participant,
as appropriate, the shares of Common Stock purchased upon exercise of his
option, subject to the restrictions on disposition described in Section 10.5
ARTICLE 8. WITHDRAWAL
8.1 In General. As indicated in Section 7.2, a participant may withdraw
payroll deductions credited to his account under the Plan at any time by giving
written notice to the Employee Benefits Department of the Company. All of the
participant's payroll deductions credited to his account will be paid to him
promptly after receipt of his notice of withdrawal, and no further payroll
deductions will be made from his pay during such Offering. The Company may, at
its option, treat any attempt to borrow by an employee on the security of his
accumulated payroll deductions as an election, under Section 7.2, to withdraw
such deductions.
8.2 Effect on Subsequent Participant. A Participant's withdrawal from
any Offering will not have any effect upon his eligibility to participant in any
succeeding Offering or in any similar plan which may hereafter be adopted by the
Company.
8.3 Termination of Employment. Upon termination of the participant's
employment for any reason, including retirement (but excluding death while in
the employ of the Company or continuation of a leave of absence for a absence
for a period beyond 90 days), the payroll deductions credited to the
participant's account will be returned to the participant, or, in the case of
his death subsequent to the termination of his employment, to the person or
persons entitled thereto under Section 12.1.
8.4 Termination of Employment Due to Death. Upon termination of the
participant's employment because of his death, his beneficiary (as defined in
Section 12.1) shall have the right to elect, by written notice given to the
Employee Benefits Department of the Company prior to the earlier of the Offering
Termination Date or the expiration of a period of ninety (90) days commencing
with the date of the death of participant, either:
(a) to withdraw all of the payroll deductions credited to the
participant's account under the Plan, or
(b) to exercise the participant's option for the purchase of Common
Stock on the Offering Termination Date next following the date of the
participant's death for the purchase of the number of full shares of Common
Stock with the accumulated payroll deductions in the participant's account at
the date of the participant's death will purchase at the applicable option
price, and any excess in such account will be returned to said beneficiary,
without interest.
If no such written notice of election shall be duly received by the Employee
Benefits Department of the Company, the beneficiary shall automatically be
deemed to have elected, pursuant to paragraph (b), to exercise the participant's
option.
8.5 Leave of Absence. A Participant on leave of absence shall, subject
to the election made by such participant pursuant to Section 5.4, continue to be
a participant in the Plan so long as such participant is on continuous leave of
absence. A participant who has been on leave of absence for more than ninety
(90) days and who, therefore, is not an Employee for the purpose of the Plan
shall not be entitled to participant in any Offering commencing after the 90th
day of such leave of absence. Notwithstanding any other provisions of the Plan,
unless a participant on leave of absence returns to regular full time or part
time employment with the Company at the earlier of: (1) the termination of such
5
<PAGE> 6
leave of absence or (b) three months from the 90th day of such leave of absence,
such participant's right to exercise previously granted options shall terminate
on the earliest of such dates.
ARTICLE 9. INTEREST
9.1 Payment of Interest. No interest will be paid or allowed on any
money paid into the Plan or credited to the account of any participant.
ARTICLE 10. STOCK
10.1 Maximum Shares. The maximum number of shares which may be issued
under the Plan, subject to adjustment upon changes in capitalization of the
Company as provided in Section 12.4, shall be the number of shares set forth in
Article 5 (i.e., 100,000 shares in each annual Offering or 50,000 shares in each
six-month Offering plus, in each Offering, all unissued shares from prior
Offerings, whether offered or not) not to exceed 500,000 shares for all
Offerings. If the total number of shares for which options are exercised on any
Offering Termination Date in accordance with Article 6 exceeds the maximum
number of shares for the applicable Offering, the Company shall make a pro-rata
allocation of the shares available for delivery and distribution in as nearly a
uniform manner as shall be practicable and as it shall determine to be
equitable, and the balance of payroll deductions credited to the account of each
participant shall be returned to him as promptly as possible.
10.2 Participant's Interest in Option Stock. A participant will have no
interest in stock covered by Plan options until such options have been
exercised.
10.3 Registration of Stock. Common Stock to be delivered to a
participant under the Plan will be registered in the name of the participant,
or, if the participant so directs by written notice to the Employee Benefits
Department of the Company prior to the Offering Termination Date applicable
thereto, in the names of the participant and one such other person as may be
designated by the participant, as joint tenants with rights of survivorship.
10.4 Restrictions on Exercise. The Board of Directors may, in its
discretion, require as conditions to the exercise of any option that the shares
of Common Stock reserved for issuance upon the exercise of the option shall have
been duly listed, upon official notice of issuance, upon a stock exchange, and
that either:
(a) a Registration Statement under the Securities Act of 1933, as
amended, with respect to said shares shall be effective, or
(b) the participant shall have represented at the time of purchase,
in form and substance satisfactory to the Company, that it is his intention to
purchase the shares for investment and not for resale or distribution.
ARTICLE 11. ADMINISTRATION
11.1 Appointment of Committee. The Board of Directors shall appoint a
committee (the "Committee") to administer the Plan, which shall consist of no
fewer than three members of the Board of Directors, each of whom shall qualify
as a "disinterested person" with respect to the Plan, as defined in SEC
Regulation Section 240.16b-3(c)(2)(k).
6
<PAGE> 7
11.2 Authority of Committee. Subject to the express provisions of the
Plan, the Committee shall have plenary authority in its discretion to interpret
and construe any and all provisions of the Plan, to adopt rules and regulations
for administering the Plan, to appoint custodians, accountants and other
advisors, and to make all other determinations deemed necessary or advisable for
administrating the Plan. The Committee's determination on the foregoing matters
shall be conclusive.
11.3 Rules Governing the Administration of the Committee. The Board of
Directors may from time to time appoint members of the Committee in substitution
for or in addition to members previously appointed and may fill vacancies,
however caused, in the Committee. The Committee may select one of its members as
its Chairman and shall hold its meetings at such times and places as it shall
deem advisable and may hold telephonic meetings. A majority of its members shall
constitute a quorum. All determinations of the Committee shall be made by a
majority of its members. The Committee may correct any defect or omission or
reconcile any inconsistency in the Plan, in the manner and to the extent it
shall deem desirable. Any decision or determination reduced to writing and
signed by a majority of the members of the Committee shall be as fully effective
as if it had been made by a majority vote at a meeting duly called and held. The
Committee may appoint a secretary and shall make such rules and regulations for
the conduct of its business as it shall deem advisable.
ARTICLE 12. MISCELLANEOUS
12.1 Designation of Beneficiary. A participant may file with the
Employee Benefits Department of the Company, a written designation of a
beneficiary who is to receive any stock and/or cash under the Plan upon the
participant's death. Such beneficiary designation may be changed by the
participant at any time by written notice to the Employee Benefits Department of
the Company. Upon the death of a participant and upon receipt by the Company of
proof of the identity and existence at the participant's death of a beneficiary
validly designated by him under the Plan, the Company shall deliver such stock
and/or cash to such beneficiary. Upon the death of a participant and in the
absence of a validly designated surviving beneficiary, the Company shall deliver
such stock and/or cash to the executor or administrator of the deceased
participant's estate, or if no such executor or administrator has been appointed
(to the knowledge of the Company), the Company, in its discretion, may deliver
such stock and/or to the spouse or to any one or more dependents of the deceased
participant as the company may designate. No beneficiary shall, prior to the
death of the participant by whom he has been designated, acquire any interest in
the stock or cash credited to the participant under the Plan.
12.2 Transferability. Neither payroll deductions credited a
participant's account nor any rights with regard to the exercise of an option or
to receive stock under the Plan may be assigned, transferred, pledged, or
otherwise disposed of in any way by the participant other than by will or the
laws of descent and distribution. Any such attempted assignment, transfer,
pledge or other disposition shall be without effect, except that the Company may
treat such act as an election to withdraw funds in accordance with Section 7.2.
12.3 Use of Funds. All payroll deductions received or held by the
Company under this Plan may be used by the Company for any corporate purpose and
the Company shall not be obligated to segregate such payroll deductions.
12.4 Adjustment Upon Changes in Capitalization.
(a) If, while any options are outstanding, the outstanding shares
of Common Stock are increased, decreased, changed into, or exchanged for a
different number of kind of shares or securities of the Company through
reorganization, merger, recapitalization, reclassification, stock split,
7
<PAGE> 8
reverse stock split or similar transaction, appropriate and proportionate
adjustments may be made by the Committee in the number and/or kind of shares
which are subject to purchase under outstanding options and in the option
exercise price or prices applicable to such outstanding options. In additions,
in any such event, the number and/or kind of shares which may be offered in the
Offerings described in Article 4 hereof shall also be proportionately adjusted.
No adjustments shall be made, however, for stock dividends. For purposes of this
paragraph (a), any distribution of shares of shareholders in an amount
aggregating 20% or more of the outstanding shares shall be deemed a stock split
and any distributions of shares aggregating less than 20% of the outstanding
shares shall be deemed a stock dividend.
(b) Upon the dissolution or liquidation of the Company, or upon a
reorganization, merger or consolidation of the Company with one or more
corporations as a result of which the Company is not the surviving corporation,
or upon a sale of substantially all of the property or stock of the Company to
another corporation, the holder of each option then outstanding under the Plan
will thereafter be entitled to receive at the next Offering Termination Date
upon the exercise of such option for each share as to which such option shall be
exercised, as nearly as reasonably may be determined, the cash, securities
and/or property which a holder of one share of the Common Stock was entitled to
receive upon and at the time of such transaction. The Board of Directors shall
take such steps in connection with such transactions as the Board shall deem
necessary to assure that the provisions of this Section 12.4 shall thereafter be
applicable, as nearly as reasonably may be determined, in relation to the said
cash, securities and/or property as to which such holder of such option might
thereafter be entitled to receive.
12.5 Amendment and Termination. The Board of Directors shall have
complete power and authority to terminate or amend the Plan; provided, however,
that the Board of Directors shall not, without the approval of the stockholders
of the Corporation (a) increase the maximum number of shares which may be issued
under any Offering (except pursuant to Section 12.4); or (b) amend the
requirements as to the class of employees eligible to purchase stock under the
Plan or permit the members of the Committee to purchase stock under the Plan. No
termination, modification, or amendment of the Plan may, without the consent of
an Employee then having an option under the Plan to purchase Common Stock,
adversely affect the rights of such Employee under such option.
12.6 Effective Date. The Plan has been approved by the Board of
Directors and adopted by the Company on November 8, 1994 effective as of such
date, subject, however, to approval by the stockholders of the Company or at
special or annual meeting of the stockholders held within 12 months after the
Plan's adoption date. If the Plan is not so approved, the Plan shall not become
effective. Offerings may commence, however, prior to stockholder approval, but
no options may be exercised until after such approval.
12.7 No Employment Rights. The Plan does not, directly or indirectly,
create any right for the benefit of any Employee or class of Employees to
purchase any shares under the Plan, or create in any Employee or class of
Employees any right with respect to continuation of employment by the Company or
any Subsidiary, and it shall not be deemed to interfere in any way with the
Company's or any Subsidiary's right to terminate, or otherwise modify, an
Employees' employment at any time.
12.8 Effect of Plan. The provisions of the Plan shall, in accordance
with its terms, be binding upon, and inure to the benefit of, all successors of
each participant in the Plan, including, without limitation, such participant's
estate and the executors, administrators or trustees thereof, heirs and
legatees, and any receiver, trustee in bankruptcy or representative of creditors
of such employee.
8
<PAGE> 9
ARTICLE 13. EXECUTION
To record the adoption of the Plan as set forth above, the Company has
caused its duly authorized officer to execute this Plan document as of the _____
day of November, 1994.
SKYWEST, INC.
By:_________________________________
Its:_____________________________
9
<PAGE> 1
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
June 12, 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 the SkyWest, Inc. 1995 Employee Stock Purchase Plan (the "Purchase 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
Purchase 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
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our reports dated May 27, 1994
included in SkyWest, Inc.'s Form 10-K for the year ended March 31, 1994 and to
all references to our Firm included in this Registration Statement.
ARTHUR ANDERSEN LLP
Salt Lake City, Utah
June 12, 1995
