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Exhibit 1.1
2,636,100 Shares
SKYWEST, INC.
Common Stock
UNDERWRITING AGREEMENT
St. Petersburg, Florida
August , 2000
RAYMOND JAMES & ASSOCIATES, INC.
As Representative of the Several Underwriters
c/o Raymond James & Associates, Inc.
880 Carillon Parkway
St. Petersburg, Florida 33716
Ladies and Gentlemen:
SkyWest, Inc., a Utah corporation (the "Company"), proposes, subject to
the terms and conditions stated herein, to issue and sell an aggregate of
2,500,000 authorized and unissued shares (the "Company Firm Shares") of the
Company's common stock, no par value, to the several Underwriters named in
Schedule I hereto (the "Underwriters"). Certain stockholders of the Company,
named in Schedule II hereto (the "Selling Stockholders"), acting severally and
not jointly, propose, subject to the terms and conditions stated herein, to
issue and sell an aggregate of 136,100 authorized and outstanding shares (the
"Stockholder Firm Shares") of the Company's common stock, no par value, to the
Underwriters. The Company Firm Shares and the Stockholder Firm Shares are
hereafter collectively referred to as the "Firm Shares." In addition, the
Company has agreed to sell to the Underwriters, upon the terms and conditions
set forth herein, up to an additional 395,415 authorized and unissued shares of
the Company's common stock, no par value (the "Additional Shares"), solely to
cover over-allotments by the Underwriters, if any. The Firm Shares and the
Additional Shares are hereinafter collectively referred to as the "Shares." The
Company's common stock, no par value, including the Shares, is hereinafter
referred to as the "Common Stock." Raymond James & Associates, Inc. is acting as
the representative of the several Underwriters and in such capacity is
hereinafter referred to as the "Representative."
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Each of the Company and each Selling Stockholder wishes to confirm as
follows its agreement with you and the other several Underwriters, on whose
behalf you are acting, in connection with the several purchases of the Shares
from the Company and the Selling Stockholders.
SECTION 1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-3 (File No.
333-42508), including a prospectus subject to completion, relating to the
Shares. Such registration statement (including all financial schedules and
exhibits), as amended at the time when it became effective and as thereafter
amended by post-effective amendment, together with any documents incorporated by
reference therein and any registration statement filed by the Company pursuant
to Rule 462(b) under the Act, is referred to in this Agreement as the
"Registration Statement." The term "Prospectus" as used in this Agreement means
(i) the prospectus in the form included in the Registration Statement, or (ii)
if the prospectus included in the Registration Statement omits information in
reliance upon Rule 430A under the Act and such information is included in a
prospectus filed with the Commission pursuant to Rule 424(b) under the Act or as
part of a post-effective amendment to the Registration Statement after the
Registration Statement becomes effective, the prospectus as so filed, or (iii)
if the prospectus included in the Registration Statement omits information in
reliance upon Rule 430A under the Act and such information is included in a term
sheet (as described in Rule 434(c) under the Act) filed with the Commission
pursuant to Rule 424(b) under the Act, the prospectus included in the
Registration Statement and such term sheet, taken together, in each case
together with any documents incorporated by reference therein. The prospectus
subject to completion in the form included in the Registration Statement at the
time of the initial filing of such Registration Statement with the Commission
and as such prospectus is amended from time to time until the date upon which
the Registration Statement was declared effective by the Commission, together
with any documents incorporated by reference therein, is referred to in this
Agreement as the "Prepricing Prospectus."
SECTION 2. AGREEMENTS TO SELL AND PURCHASE.
The Company hereby agrees to sell the Company Firm Shares, and each
Selling Stockholder hereby agrees to sell such number of Stockholder Firm Shares
as is set forth opposite such Selling Stockholder's name on Schedule II hereto,
to the Underwriters and, upon the basis of the representations, warranties and
agreements of the Company and the Selling Stockholders herein contained and
subject to all the terms and conditions set forth herein, each Underwriter
agrees, severally and not jointly, to purchase from the Company and the Selling
Stockholders the aggregate number of Firm Shares set forth opposite the name of
such Underwriter in Schedule I hereto (or such number of Firm Shares as adjusted
pursuant to Section 10 hereof), at a purchase price of $_________ per Share (the
"Purchase Price per Share").
The Company also agrees to sell to the Underwriters, and upon the basis
of the representations, warranties and agreements of the Company herein
contained and subject to all the terms and conditions set forth herein, the
Underwriters shall have the right for 30 days from
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the date upon which the Registration Statement is declared effective by the
Commission to purchase from the Company up to 395,415 Additional Shares at the
Purchase Price per Share for the Firm Shares. The Additional Shares shall, if
purchased, be purchased solely for the purpose of covering over-allotments made
in connection with the offering of the Firm Shares. If any Additional Shares are
to be purchased, each Underwriter agrees, severally and not jointly, to purchase
the number of Additional Shares (subject to such adjustments as you may
determine to avoid fractional shares) which bears the same proportion to the
number of Additional Shares to be sold as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto (or such number of
Firm Shares as adjusted pursuant to Section 10 hereof) bears to the total number
of Firm Shares.
SECTION 3. TERMS OF PUBLIC OFFERING. The Company has been advised by you
that the Underwriters propose to make a public offering of their respective
portions of the Shares as soon after the Registration Statement and this
Agreement have become effective as in our judgment is advisable and initially to
offer the Shares upon the terms set forth in the Prospectus.
SECTION 4. DELIVERY OF THE SHARES AND PAYMENT THEREFOR. Delivery to the
Underwriters of the Firm Shares and payment therefor shall be made at the
offices of Raymond James & Associates, Inc., 880 Carillon Parkway, St.
Petersburg, Florida, at 10:00 a.m., St. Petersburg, Florida time, [three]
business days after the date hereof (the "Closing Date"). The place of closing
for the Firm Shares and the Closing Date may be varied by agreement between you
and the Company.
Delivery to the Underwriters of and payment for any Additional Shares to
be purchased by the Underwriters shall be made at the offices of Raymond James &
Associates, Inc., 880 Carillon Parkway, St. Petersburg, Florida, at 10:00 a.m.,
St. Petersburg, Florida time, on such date or dates (the "Additional Closing
Date") (which may be the same as the Closing Date but shall in no event be
earlier than the Closing Date nor earlier than three nor latter than ten
business days after the giving of the notice hereinafter referred to), as shall
be specified in a written notice from you on behalf of the Underwriters to the
Company, of the Underwriters' determination to purchase a number, specified in
such notice, of Additional Shares. Such notice may be given to the Company by
you at any time within 30 days after the date upon which the Registration
Statement is declared effective by the Commission. The place of closing for the
Additional Shares and the Additional Closing Date may be varied by agreement
between you and the Company.
Certificates for the Company Firm Shares and for any Additional Shares
to be purchased hereunder shall be registered in such names and such
denominations as you shall request prior to 1:00 p.m., St. Petersburg, Florida
time, on the second full business day preceding the Closing Date or the
Additional Closing Date, as the case may be. Such certificates shall be made
available to you in St. Petersburg, Florida for inspection and packaging not
later than 9:30 a.m., St. Petersburg, Florida time, on the business day
immediately preceding the Closing Date or the Additional Closing Date, as the
case may be. The certificates evidencing the Firm Shares and any Additional
Shares to be purchased hereunder shall be delivered to you on the Closing Date
or the Additional Closing Date, as the case may be, against payment of the
Purchase Price therefor by wire transfer or certified or official bank check or
checks payable in same day funds.
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If the Representative so elects, delivery of the Shares may be made by credit
through full fast transfer to the accounts at the Depository Trust Company
designated by the Representative.
The certificates in negotiable form for the Stockholder Firm Shares have
been placed in custody (for deliver under this Agreement) under the Custody
Agreement (as defined below). Each Selling Stockholder agrees that the
certificates for the Shares for such Selling Stockholder so held in custody are
subject to the interests of the Underwriters hereunder, that the arrangements
made by such Selling Stockholder for such custody, including the Power of
Attorney (as defined below) is to that extent irrevocable and that the
obligations of such Selling Stockholder hereunder shall not be terminated by the
act of such Selling Stockholder or by operation of law, whether by the death or
incapacity of such Selling Stockholder or the occurrence of any other event,
except as specifically provided herein or in the Custody Agreement. If any
Selling Stockholder should die or be incapacitated, or if any other such event
should occur, before the delivery of the certificates for the Shares to be sold
by such Selling Stockholder hereunder, such Shares, except as specifically
provided herein or in the Custody Agreement, shall be delivered by the Custodian
(as defined below) in accordance with the terms and conditions of this Agreement
as if such death, incapacity or other event had not occurred, regardless of
whether the Custodian shall have received notice of such death or other event.
SECTION 5. AGREEMENTS OF THE COMPANY. The Company agrees with the
several Underwriters as follows:
(a) The Company will advise you promptly and, if requested by you, will
confirm such advice in writing (i) when the Registration Statement has become
effective (if not effective as of the time and date of this Agreement) and when
any post-effective amendment to the Registration Statement or any registration
statement filed pursuant to Rule 462(b) under the Act if filed or becomes
effective, (ii) if Rule 430A under the Act is employed, when the Prospectus or
term sheet (as described in Rule 434(b) under the Act) has been timely filed
pursuant to Rule 424(b) under the Act, (iii) of any request by the Commission
for amendments or supplements to the Registration Statement, any Prepricing
Prospectus or the Prospectus or for additional information, (iv) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Shares for
offering or sale in any jurisdiction or the initiation (or threatened
initiation) of an proceeding for such purposes, and (v) within the period of
time referred to in Section 5(e) below, of any change in the Company's condition
(financial or other), business, prospects, properties, net worth or results of
operations, or of any event that comes to the attention of the Company that
makes any statement made in the Registration Statement or the Prospectus (as
then amended or supplemented) misleading in any material respect or that
requires the making of any additions thereto or changes therein in order to make
the statements therein not misleading in any material respect, or of the
necessity to amend or supplement the Prospectus (as then amended or
supplemented) to comply with the Act or any other law. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort to obtain
the withdrawal of such order at the earliest possible time.
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(b) The Company will furnish to you, without charge, two signed copies
of the Registration Statement as originally filed with the Commission and of
each amendment thereto, including financial statements and all exhibits thereto,
and will also furnish to you, without charge, such number of conformed copies of
the Registration Statement as originally filed and of each amendment thereto as
you may reasonably request.
(c) The Company will not file any amendment to the Registration
Statement, file any registration statement pursuant to Rule 462(b) under the Act
or make any amendment or supplement to the Prospectus of which you shall not
previously have been advised (with a reasonable opportunity to review such
amendment or supplement) or to which you have reasonably objected after being so
advised, or which is not in compliance with the Act. The Company will prepare
and file with the Commission any amendments or supplements to the Registration
Statement or Prospectus which, in the opinion of counsel of the several
Underwriters may be necessary or advisable in connection with the distribution
of the Shares by the Underwriters.
(d) The Company has delivered or will deliver to you, without charge, in
such quantities as you have requested or may hereafter reasonably request,
copies of each form of the Prepricing Prospectus. The Company consents to the
use, in accordance with the Provisions of the Act and with the securities or
Blue Sky laws of the jurisdictions in which the Shares are offered by the
several Underwriters and by dealers, prior to the date of the Prospectus, of
each Prepricing Prospectus so furnished by the Company.
(e) As soon after the execution and delivery of this Agreement as is
practicable and thereafter from time to time for such period as in the
reasonable opinion of counsel for the Underwriters a prospectus is required by
the Act to be delivered in connection with sales by any Underwriter or a dealer,
the Company will deliver to each Underwriter and each dealer, without charge, as
many copies of the Prospectus (and of any amendment or supplement thereto) as
they may reasonably request. The Company consents to the use of the Prospectus
(and of any amendment or supplement thereto) in accordance with the provisions
of the Act and with the securities or blue Sky laws of the jurisdictions in
which the Shares are offered by the several Underwriters and by all dealers to
whom Shares may be sold, both in connection with the offering and sale of the
Shares and for such period of time thereafter as the Prospectus is required by
the Act to be delivered in connection with sales by any Underwriter or dealer.
If during such period of time any event shall occur that in the judgment of the
Company or in the opinion of counsel for the Underwriters is required to be set
forth in the Prospectus (as then amended or supplemented) or should be set forth
therein in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, or if it is necessary to supplement
or amend the Prospectus to comply with the Act or any other law, the Company
will promptly prepare and file with the Commission an appropriate supplement or
amendment thereto, and will furnish to each Underwriter and to each dealer who
has previously requested Prospectuses, without charge, a reasonable number of
copies thereof.
(f) The Company will cooperate with you and counsel for the Underwriters
in connection with the registration or qualification of the Shares for offering
and sale by the several Underwriters and by dealers under the securities or Blue
Sky laws of such jurisdictions as you
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may reasonably designate and will file such consents to service of process in
suits, other documents as may be reasonably necessary in order to effect such
registration or qualification; provided that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not now so
qualified or to take any action which would subject it to service of process in
suits, in any jurisdiction where it is not now so subject. In each jurisdiction
in which the Shares shall have been qualified as above provided, the Company
will make and file such statements and reports in each year as are or may be
required by the laws of such jurisdiction. In the event that the qualification
of the Shares in any jurisdiction is suspended, the Company shall so advise you
promptly in writing.
(g) The Company will make generally available to its security holders a
consolidated earnings statement, which need not be audited, covering a 12-month
period commencing after the effective date of the Registration Statement and
ending not later than 15 months thereafter, as soon as practicable after the end
of such period, which consolidated earnings statement shall satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act, and will
advise you in writing when such statement has been so made available.
(h) During the period of five years hereafter, the Company will furnish
to you (i) as soon as practicable after the end of each fiscal year, (ii) as
soon as available, a copy of each report or definitive proxy statement of the
Company filed with the Commission under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or mailed to stockholders, and (iii) from time to
time such other information concerning the Company as you may reasonably
request. Until the termination of the offering of the Shares, the Company will
timely file all documents, and any amendments to previously filed documents,
required to be filed by it pursuant to Sections 13, 14 or 15(d) of the Exchange
Act.
(i) The Company will apply the net proceeds from the sale of the Shares
to be sold by it hereunder substantially in accordance with the description set
forth under "Use of Proceeds" in the Prospectus.
(j) If Rule 430A under the Act is employed, the Company will timely file
the Prospectus or term sheet (as described in Rule 434(b) under the Act)
pursuant to Rule 424(b) under the Act.
(k) The Company will not sell, contract to sell, pledge or otherwise
dispose of any Common Stock or rights to purchase Common Stock or securities
convertible into or exchangeable for shares of Common Stock until after the date
90 days from the effective date of the Registration Statement, without the prior
written consent of Raymond James & Associates, Inc., except to the Underwriters
pursuant to this Agreement, and except that the Company may issue Common Stock
upon the exercise or conversion of stock options issued and outstanding at the
time of effectiveness of the Registration Statement and described in the
Registration Statement.
(l) The Company will not, directly or indirectly, take any action that
would constitute or any action designed, or which might reasonably be expected
to cause or result in or constitute,
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under the Act or otherwise, stabilization nor manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares.
(m) If at any time during the 90-day period after the first date that
any of the Shares are released by you for sale to the public, any rumor,
publication, or event relating to or affecting the Company shall occur as a
result of which in your opinion the market price of the Common Stock (including
the Shares) has been or is likely to be materially affected (regardless of
whether such rumor, publication, or event necessitates a supplement to or
amendment of the Prospectus), the Company will, after written notice from you of
advising the Company to the effect set forth above, promptly consult with you
concerning the advisability and substance of, and, if appropriate, disseminate,
a press release or other public statement responding to or commenting on such
rumor, publication, or event.
(n) The Company shall not invest or otherwise use the proceeds received
by the Company from its sale of the Shares, or otherwise conduct its business,
in such a manner as would require the Company or any of its subsidiaries to
register as an investment company under the Investment Company Act of 1940, as
amended.
(o) The Company will maintain a transfer agent and, if necessary under
the jurisdiction of its incorporation or the rules of the Nasdaq National Market
or any national securities exchange on which the Common Stock is then listed, a
registrar (which, if permitted by applicable laws and rules, may be the same
entity as the transfer agent) for its Common Stock.
(p) The Company hereby agrees that this Agreement shall be deemed, for
all purposes, to have been made and entered into in Pinellas County, Florida.
The Company agrees that any dispute hereunder shall be litigated solely in the
Circuit Court of the State of Florida in Pinellas County, Florida or in the
United States District Court for the Middle district of Florida, Tampa Division,
and further agrees to submit itself to the personal jurisdiction of such courts.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
STOCKHOLDERS. Each of the Company and the Selling Stockholders, jointly and
severally, represents and warrants to each Underwriter on the date hereof, and
shall be deemed to represent and warrant to each Underwriter on the Closing Date
and the Additional Closing Date, that:
(a) The Registration Statement has been declared effective by the
Commission under the Act and no post-effective amendment to the Registration
Statement has been filed as of the date of this Agreement. Each Prepricing
Prospectus included as part of the Registration Statement as originally filed or
as part of any amendment or supplement thereto, or filed pursuant to Rule 424(a)
under the Act, complied when so filed in all material respects with the
provisions of the Act, except that this representation and warranty does not
apply to statements in or omissions from such Prepricing Prospectus (or any
amendment or supplement thereto) made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by
or on behalf of any Underwriter through you expressly for use therein.
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(b) The Commission has not issued any order preventing or suspending the
use of any Prepricing Prospectus, and the Prepricing Prospectus included as part
of the Registration Statement declared effective by the Commission complies as
to form in all material respects with the requirements of the Act. The Company
has satisfied all conditions to the use of Form S-3 with respect to the offering
of the Shares for sale to the public. The Registration Statement, in the form in
which it became effective and also in such form as it may be when any
post-effective amendment thereto shall become effective, and any registration
statement filed pursuant to Rule 462(b) under the Act, complies and will comply
in all material respects with the provisions of the Act and does not and will
not at any such times contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, except that this representation and warranty
does not apply to statements in or omissions from the Registration Statement (or
any amendment or supplement thereto) made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Company in writing
by or on behalf of any Underwriter through you expressly for use therein. The
Prospectus, and any supplement or amendment thereto, when filed with the
Commission under Rule 424(b) under the Act, complies and will comply in all
material respects with the provisions of the Act and does not and will not at
any such times contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements, in the light of the
circumstances under which they were made, not misleading, except that this
representation and warranty does not apply to statements in or omissions from
the Prospectus (or any amendment or supplement thereto) made in reliance upon
and in conformity with information relating to any Underwriter furnished to the
Company in writing by or on behalf of any Underwriter through you expressly for
use therein.
(c) The capitalization of the Company is as set forth in the Prospectus
as of the date set forth therein. All the outstanding shares of Common Stock
(including without limitation the Stockholder Firm Shares) and other securities
of the Company have been duly authorized and validly issued, are fully paid and
nonassessable and are free of any preemptive or similar rights; all offers and
sales of the capital stock, warrants, options and debt or other securities or
the Company and the Subsidiaries prior to the date hereof (including without
limitation the Stockholder Firm Shares) were made in compliance with the Act and
all other applicable state, federal and foreign laws or regulations, or any
actions under the Act or any state, federal or foreign laws or regulations in
respect of any such offers or sales are effectively barred by effective waivers
or statutes of limitation; the Shares to be issued and sold to the Underwriters
by the Company hereunder have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance with the
terms hereof, will be validly issued, fully paid and nonassessable and free of
any preemptive or similar rights; the securities of the Company conform to the
description thereof in the Registration Statement and the Prospectus (or any
amendment or supplement thereto); the form of certificate for the Shares
conforms to the corporate law of the State of Utah; and the delivery of
certificates for the Shares to be issued and sold by the Company pursuant to the
terms of this Agreement and payment for such Shares will pass valid marketable
title to such shares, free and clear of any voting trust arrangements, liens,
encumbrances, equities, claims or defects in title to the several Underwriters
purchasing such Shares in good faith and without notice of any lien, claim or
encumbrance.
(d) The descriptions in the Registration Statement and the Prospectus of
statutes,
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legal and governmental proceedings or contracts and other documents are accurate
and fairly present the information required to be shown; and there are no
statutes or legal or governmental proceedings required to be described in the
Registration Statement or the Prospectus that are not described as required and
no contracts or documents of a character that are required to be described in
the Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described and filed as required.
(e) Each of the Company and its subsidiaries has been duly incorporated,
is validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has full corporate and other power and
authority to own or lease its properties and conduct its business as described
in the Prospectus. The Company has full corporate and other power and authority
to enter into this Agreement and to perform its obligations hereunder. Each of
the Company and its subsidiaries is duly qualified to transact business as a
foreign corporation and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any business, so
as to require such qualification, except where the failure to so qualify would
not subject them to any material liability or disability.
(f) The only subsidiary of the Company is SkyWest Airlines, Inc., a Utah
corporation. All of the issued shares of capital stock of SkyWest Airlines, Inc.
have been duly authorized and validly issued, are fully paid and nonassessable
and are owned beneficially by the Company free and clear of all liens, security
interests, pledges, charges, encumbrances, defects, shareholders' agreements,
voting trusts, equities or claims of any nature whatsoever. Other than the
subsidiary set forth in this paragraph, the Company does not own, directly or
indirectly, any capital stock or other equity securities of any other
corporation or any ownership interest in any partnership, joint venture, limited
liability company or other association other than as disclosed in the
Prospectus.
(g) Except as disclosed in the Prospectus, there are no outstanding (A)
securities or obligations of the Company or any of its subsidiaries convertible
into or exchangeable for any capital stock of the Company or any such
subsidiary, (B) warrants, rights or options to subscribe for or purchase from
the Company or any such subsidiary any such capital stock or any such
convertible or exchangeable securities or obligations, or (C) obligations of the
Company or any such subsidiary to issue any shares of capital stock, any such
convertible or exchangeable securities or obligations, or any such warrants,
rights or options.
(h) Since the date of the most recent audited financial statements
included in the Prospectus, neither the Company nor any of its subsidiaries has
sustained any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, including
without limitation any such dispute or court or governmental action, order or
decree relating to United Airlines and its pilots otherwise than as disclosed in
or contemplated by the Prospectus.
(i) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, (A) neither the Company nor any of
its subsidiaries has incurred any liabilities or obligations, direct or
contingent, or entered into any transactions, not in the
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ordinary course of business, that are material to the Company and its
subsidiaries, (B) the Company has not purchased any of its outstanding capital
stock or declared, paid or otherwise made any dividend or distribution of any
kind on its capital stock, (C) there has not been any change in the capital
stock, long-term debt or short-term debt of the Company or any of its
subsidiaries, and (D) there has not been any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
financial position, results of operations or business of the Company and its
subsidiaries, in each case other than as disclosed in or contemplated by the
Prospectus.
(j) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting such
person the right to require the Company to file a registration statement under
the Act with respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement (or any such right
has been effectively waived) or any securities being registered pursuant to any
other registration statement filed by the Company under the Act.
(k) Neither the Company nor any of its subsidiaries is, or with the
giving of notice or passage of time or both would be, in violation of its
Articles of Incorporation or Bylaws or in default under any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument to which
the Company or any of its subsidiaries is a party or to which any of their
respective properties or assets are subject.
(l) The issue and sale of the Shares to be issued and sold by the
Company and the performance of this Agreement and the consummation of the
transactions herein contemplated will not conflict with, or (with or without the
giving of notice or the passage of time or both) result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party or to
which any of their respective properties or assets is subject, nor will such
action conflict with or violate any provision of the Articles of Incorporation
or Bylaws of the Company or any of its subsidiaries or any statute, rule or
regulation or any order, judgment or decree of any court or governmental agency
or body having jurisdiction over the Company or any of its subsidiaries or any
of their respective properties or assets.
(m) The Company and its subsidiaries have good and marketable title in
fee simple to all real property, if any, and good title to all personal property
owned by them, in each case free and clear of all liens, security interests,
pledges, charges, encumbrances, mortgages and defects, except such as are
disclosed in the Prospectus or such as do not materially and adversely affect
the value of such property and do not interfere with the use made or proposed to
be made of such property by the Company and its subsidiaries; and any real
property and buildings held under lease by the Company or any of its
subsidiaries are held under valid, subsisting and enforceable leases, with such
exceptions as are disclosed in the Prospectus or are not material and do not
interfere with the use made or proposed to be made of such property and
buildings by the Company or such subsidiary.
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(n) No consent, approval, authorization, order or declaration of or
from, or registration, qualification or filing with, any court or governmental
agency or body is required for the issue and sale of the Shares to be issued and
sold by the Company or the consummation of the transactions contemplated by this
Agreement, except the registration of the Shares under the Act (which, if the
Registration Statement is not effective as of the time of execution hereof,
shall be obtained as provided in this Agreement) and such as may be required
under state securities or blue sky laws in connection with the offer, sale and
distribution of the Shares by the Underwriters.
(o) Other than as disclosed in the Prospectus, there is no litigation,
arbitration, claim, proceeding (formal or informal) or investigation pending or
threatened (or any basis therefor) in which the Company or any of its
subsidiaries is a party or of which any of their respective properties or assets
are the subject which, if determined adversely to the Company or any such
subsidiary, would individually or in the aggregate have a material adverse
effect on the financial position, results of operations or business of the
Company and its subsidiaries. Neither the Company nor any of its subsidiaries is
in violation of, or in default with respect to, any statute, rule, regulation,
order, judgment or decree, except as described in the Prospectus or such as do
not and will not individually or in the aggregate have a material adverse effect
on the financial position, results of operations or business of the Company and
its subsidiaries, and neither the Company nor any of its subsidiaries is
required to take any action in order to avoid any such violation or default.
(p) Arthur Andersen & Co. LLP, who has certified certain financial
statements of the Company and its consolidated subsidiaries for the fiscal years
ended March 31, 1998, 1999 and 2000, is and was during the periods covered by
their reports incorporated by reference in the Registration Statement and the
Prospectus, independent public accountants as required by the Act, the Exchange
Act and the respective rules and regulations of the Commission thereunder.
(q) The consolidated financial statements and schedules (including the
related notes) of the Company and its consolidated subsidiaries incorporated by
reference in the Registration Statement, the Prospectus or any Preliminary
Prospectus were prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved and fairly
present the financial position and results of operations of the Company and its
subsidiaries, on a consolidated basis, at the dates and for the periods
presented. The selected financial and operating data set forth under the caption
"Selected Financial and Operating Data" in the Prospectus fairly present, on the
basis stated in the Prospectus, the information included therein.
(r) This Agreement has been duly authorized, executed and delivered by
the Company and constitutes the valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, subject, as to
enforcement, to applicable bankruptcy, insolvency, reorganization and moratorium
laws and other laws relating to or affecting the enforcement of creditors'
rights generally and to general equitable principles and except as the
enforceability of rights to indemnity and contribution under this Agreement may
be limited under applicable securities laws or the public policy underlying such
laws.
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(s) Neither the Company nor any of its officers, directors or affiliates
has (A) taken, directly or indirectly, any action designed to cause or result
in, or that has constituted or might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares or (B) since the filing of the
Registration Statement (1) sold, bid for, purchased or paid anyone any
compensation for soliciting purchases of, the Shares or (2) paid or agreed to
pay to any person any compensation for soliciting another to purchase any other
securities of the Company
(t) The Company has obtained for the benefit of the Company and the
Underwriters from each of its directors and executive officers and from Delta
Air Lines, Inc. a written agreement that for a period of 90 days from the date
of the Prospectus such persons will not, without your prior written consent,
offer, pledge, sell, contract to sell, grant any option for the sale of, or
otherwise dispose of, directly or indirectly, any shares of Common Stock or
securities convertible into, or exercisable or exchangeable for, shares of
Common Stock.
(u) Neither the Company, any of its subsidiaries, nor any director,
officer, agent, employee or other person associated with or acting on behalf of
the Company or any such subsidiary has, directly or indirectly: used any
corporate funds for unlawful contributions, gifts, entertainment or other
unlawful expenses relating to political activity; made any unlawful payment to
foreign or domestic government officials or employees or to foreign or domestic
political parties or campaigns from corporate funds; violated any provision of
the Foreign Corrupt Practices Act of 1977, as amended; or made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment.
(v) The operations of the Company and its subsidiaries with respect to
any real property currently leased or owned or by any means controlled by the
Company or any subsidiary (the "Real Property") are in compliance with all
federal, state, and local laws, ordinances, rules, and regulations relating to
occupational health and safety and the environment (collectively, "Laws"), and
the Company and its subsidiaries have all licenses, permits and authorizations
necessary to operate under all Laws and are in compliance with all terms and
conditions of such licenses, permits and authorizations; neither the Company nor
any subsidiary has authorized, conducted or has knowledge of the generation,
transportation, storage, use, treatment, disposal or release of any hazardous
substance, hazardous waste, hazardous material, hazardous constituent, toxic
substance, pollutant, contaminant, petroleum product, natural gas, liquefied gas
or synthetic gas defined or regulated under any environmental law on, in or
under any Real Property; and there is no pending or threatened claim, litigation
or any administrative agency proceeding, nor has the Company or any subsidiary
received any written or oral notice from any governmental entity or third party,
that: (A) alleges a violation of any Laws by the Company or any subsidiary; (B)
alleges the Company or any subsidiary is a liable party under the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9601
et seq. or any state superfund law; (C) alleges possible contamination of the
environment by the Company or any subsidiary; or (D) alleges possible
contamination of the Real Property.
(w) The Company and its subsidiaries own or have the right to use all
patents, patent applications, trademarks, trademark applications, tradenames,
service marks, copyrights, franchises, trade secrets, proprietary or other
confidential information and intangible properties
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<PAGE> 13
and assets (collectively, "Intangibles") necessary to their respective
businesses as presently conducted or as the Prospectus indicates the Company or
such subsidiary proposes to conduct; to the best knowledge of the Company,
neither the Company nor any subsidiary has infringed or is infringing, and
neither the Company nor any subsidiary has received notice of infringement with
respect to, asserted Intangibles of others; and, to the best knowledge of the
Company, there is no infringement by others of Intangibles of the Company or any
of its subsidiaries.
(x) The Company and each of its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they are
engaged; and neither the Company nor any such subsidiary has any reason to
believe that it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its business at a comparable cost, except as
disclosed in the Prospectus.
(y) Each of the Company and its subsidiaries makes and keeps accurate
books and records reflecting its assets and maintains internal accounting
controls which provide reasonable assurance that (A) transactions are executed
in accordance with management's authorization, (B) transactions are recorded as
necessary to permit preparation of the Company's consolidated financial
statements in accordance with generally accepted accounting principles and to
maintain accountability for the assets of the Company, (C) access to the assets
of the Company and each of its subsidiaries is permitted only in accordance with
management's authorization, and (D) the recorded accountability for assets of
the Company and each of its subsidiaries is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(z) No subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distributions on such subsidiary's capital stock, from repaying to the Company
any loans or advances to such subsidiary or from transferring any of such
subsidiary's property or assets to the Company or any other subsidiary of the
Company, except as disclosed in the Prospectus.
(aa) The Company and its subsidiaries have filed all foreign, federal,
state and local tax returns that are required to be filed by them and have paid
all taxes shown as due on such returns as well as all other taxes, assessments
and governmental charges that are due and payable; and no deficiency with
respect to any such return has been assessed or proposed.
(bb) SkyWest Airlines, Inc. is a "citizen of the United States" (as
defined in Section 40102(a)(15) of Title 49 of the United States Code, as
amended) and is an air carrier operating under a certificate of public
convenience and necessity issued by the Secretary of Transportation pursuant to
Section 41102 of Title 49, United States Code. There is in force with respect to
SkyWest Airlines, Inc. an air carrier operating certificate issued by the
Federal Aviation Administration pursuant to 14 C.F.R. Part 119.
(cc) The Company is not, will not become as a result of the transactions
contemplated hereby, and does not intend to conduct its business in a manner
that would cause it to become, an
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<PAGE> 14
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940.
(dd) The Company and the Subsidiaries are in compliance with all
provisions of Section 1 of Laws of Florida, Chapter 92-198, An Act Relating to
Disclosure of doing Business with Cuba; if the Company or any of its
subsidiaries commences engaging in business with the government of Cuba or with
any person or affiliate located in Cuba after the date the Registration
Statement becomes or has become effective with the Commission or with the
Florida Department of Banking and Finance (the "Department"), whichever date is
later, or if the information reported or incorporated by reference in the
Prospectus, if any, concerning the business of the Company or any of its
subsidiaries with Cuba or with any person or affiliate located in Cuba changes
in any material way, the Company will provide the Department notice of such
business or change, as appropriate in a form acceptable to the Department.
SECTION 6A. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS.
Each Selling Stockholder, severally and not jointly, represents and warrants to
each Underwriter and the Company on the date hereof, and shall be deemed to
represent and warrant to each Underwriter and the Company on the Closing Date
and the Additional Closing Date, that:
(a) Such Selling Stockholder has full right, power and authority to
sell, assign, transfer and deliver the Shares to be sold by such Selling
Stockholder hereunder; and upon delivery of such Shares hereunder and payment of
the purchase price as herein contemplated, each of the Underwriters will obtain
valid marketable title to the Shares purchased by it from such Selling
Stockholder, free and clear of any pledge, lien, security interest, encumbrance,
claim or equitable interest, including any liability for estate or inheritance
taxes, or any liability to or claims of any creditor, devisee, legatee or
beneficiary of such Selling Stockholder.
(b) Such Selling Stockholder has duly authorized (if applicable),
executed and delivered, in the form heretofore furnished to the Representative,
a Power of Attorney (the "Power of Attorney") appointing Jerry C. Atkin and
Bradford R. Rich as attorneys-in-fact (collectively, the "Attorneys" and
individually, an "Attorney") and a Letter of Transmittal and Custody Agreement
(the "Custody Agreement") with Zions First National Bank, N.A., as custodian
(the "Custodian"); each of the Power of Attorney and the Custody Agreement
constitutes a valid and binding agreement of such Selling Stockholder,
enforceable against such Selling Stockholder in accordance with its terms; and
each of such Selling Stockholder `s Attorneys, acting alone, is authorized to
execute and deliver this Agreement and the certificate referred to in Section
9(i) hereof on behalf of such Selling Stockholder, to determine the purchase
price to be paid by the several Underwriters to such Selling Stockholder as
provided in Section 2 hereof, to authorize the delivery of the Shares to be sold
by the Selling Stockholders under this Agreement and to duly endorse (in blank
or otherwise) the certificate or certificates representing such Shares or a
stock power or powers with respect thereto, to accept payment therefor, and
otherwise to act on behalf of such Selling Stockholder in connection with this
Agreement. Certificates in negotiable form for all Shares to be sold by such
Selling Stockholder under this Agreement, together with a stock power or powers
duly endorsed in blank by such Selling Stockholder, have been placed in custody
with the Custodian for the purpose of effecting delivery hereunder.
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<PAGE> 15
(c) All authorizations, approvals, consents and orders necessary for the
execution and delivery by such Selling Stockholder of the Power of Attorney and
the Custody Agreement, the execution and delivery by or on behalf of such
Selling Stockholder of this Agreement and the sale and delivery of the Shares to
be sold by the Selling Stockholders under this Agreement (other than such
authorizations, approvals or consents as may be necessary under state or other
securities or Blue Sky laws) have been obtained and are in full force and
effect; such Selling Stockholder, if other than a natural person, has been duly
organized and is validly existing and in good standing under the laws of the
jurisdiction of its organization as the type of entity that it purports to be;
and such Selling Stockholder has full right, power, and authority to enter into
and perform its obligations under this Agreement and such Power of Attorney and
Custody Agreement, and to sell, assign, transfer and deliver the Shares to be
sold by such Selling Stockholder under this Agreement.
(d) Such Selling stockholder will not offer, sell, pledge or otherwise
dispose of any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for, or any rights to purchase or acquire, Common
Stock, during the period from August , 2000, to the date 90 days following the
effective date of the Registration Statement, inclusive, without the prior
written consent of Raymond James & Associates, Inc.
(e) Certificates in negotiable form for all Shares to be sold by such
Selling stockholder under this Agreement, together with a stock power or powers
duly endorsed in blank by such Selling Stockholder, have been placed in custody
with the Custodian for the purpose of effecting delivery hereunder.
(f) This Agreement has been duly authorized by such Selling Stockholder
that is not a natural person and has been duly executed and delivered by or on
behalf of such Selling Stockholder and constitutes the valid and binding
agreement of such Selling Stockholder, enforceable against such Selling
Stockholder in accordance with its terms; and the performance of this Agreement
and the consummation of the transactions herein contemplated will not result in
a breach of or default under any material bond, debenture, note or other
evidence of indebtedness, or any material contract, indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which such
Selling Stockholder is a party or by which such Selling Stockholder or any
Selling Stockholder Shares hereunder may be bound or, to the best of such
Selling Stockholder's knowledge, result in any violation of any law, order,
rule, regulation, writ, injunction or decree of any court or governmental agency
or body or, if such Selling Stockholder is other than a natural person, result
in any violation of any provisions of the charter, bylaws or other
organizational documents of such Selling Stockholder.
(g) Such Selling Stockholder has not taken and will not take, directly
or indirectly, any action designed to, or which might reasonably be expected to,
cause or result in stabilization or manipulation of the price of the Common
Stock to facilitate the sale or resale of the Shares.
(h) Such Selling Stockholder has not distributed and will not distribute
any prospectus or other offering material in connection with the offering and
sale of the Shares.
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<PAGE> 16
(i) All information furnished by or on behalf of such Selling
Stockholder relating to such Selling Stockholder and the Shares to be sold by
such Selling Stockholders under this Agreement that is contained in the
representations and warranties of such Selling Stockholder in such Selling
Stockholder's Power of Attorney or set forth in the Registration Statement and
the Prospectus is, and on the Closing Date will be, true, correct and complete,
and does not, and on the Closing Date will not, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make such statements not misleading.
(j) Such Selling Stockholder will review the Prospectus and will comply
with all agreements and satisfy all conditions on its part to be complied with
or satisfied pursuant to this Agreement on or prior to the Closing Date and will
advise one of its Attorneys prior to the Closing Date if any statement to be
made on behalf of such Selling Stockholder in the certificate contemplated by
Section 9(i) would be inaccurate if made as of the Closing Date.
(k) Such Selling Stockholder does not have, or has waived prior to the
date hereof, any preemptive right, co-sale right or right of first refusal or
other similar right to purchase any of the Shares that are to be sold by the
Company or any of the other Selling Stockholders to the Underwriters pursuant to
this Agreement; and such Selling Stockholder does not own any capital stock of
the Company or warrants, options or similar rights to acquire, and does not have
any right or arrangement to acquire, any capital stock, rights, warrants,
options or other securities from the Company, other than those described in the
Registration Statement and the Prospectus.
SECTION 7. EXPENSES. The Company hereby agree with the several
Underwriters that the Company will pay or cause to be paid the costs and
expenses associated with the following: (i) the preparation, printing or
reproduction, and filing with the Commission of the Registration Statement
(including financial statements and exhibits thereto), each Prepricing
Prospectus, the Prospectus, each registration statement filed pursuant to Rule
462(b) under the Act, and each amendment or supplement to any of them; (ii) the
printing (or reproduction) and delivery (including postage, air freight charges
and charges for counting and packaging) of such copies of the Registration
Statement, each Prepricing Prospectus, the Prospectus, each registration
statement filed pursuant to Rule 462(b) under the Act, and all amendments or
supplements to any of them, as may be reasonably requested for use in connection
with the offering and sale of the Shares; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Shares, including
any stamp taxes in connection with the offering of the Shares; (iv) the printing
(or reproduction) and delivery of this Agreement, the preliminary and
supplemental Blue Sky Memoranda and all other agreements or documents printed
(or reproduced) and delivered in connection with the offering of the Shares; (v)
the listing of the Shares on the Nasdaq National Market; (vi) the registration
or qualification of the Shares for offer and sale under the securities or Blue
Sky laws of the several states as provided in Section 5(f) hereof (including the
reasonable fees and expenses of counsel for the Underwriters relating to the
preparation, printing or reproduction, and delivery of the preliminary and
supplemental Blue Sky Memoranda and such registration and qualification); (vii)
the filing fees in connection with any filings required to be made with the
National Association of Securities Dealers, Inc. in connection with the
offering; (viii) the transportation and other expenses incurred by or on behalf
of representatives of the Company in connection with the presentations to
prospective purchasers of the Shares; (ix) the fees and expenses of the
Company's accountants and the fees and expenses of counsel
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(including local and special counsel) for the Company; (x) the preparation,
printing and distribution of bound volumes for the Representative and its
counsel; and (xi) the performance by the Company of its other obligations under
this Agreement. If the transactions contemplated hereby are not consummated by
reason of any failure, refusal or inability on the part of the Company or any
Selling Stockholder to perform any agreement on its part to be performed
hereunder or to fulfill any condition of the Underwriters' obligations
hereunder, the Company will reimburse the several Underwriters for all
reasonable out-of-pocket expenses (including fees and disbursements of counsel
for the several Underwriters) incurred by the Underwriters in investigating,
preparing to market or marketing the Shares.
SECTION 8. INDEMNIFICATION AND CONTRIBUTION. The Company agrees to
indemnify and hold harmless you and each other Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages, liabilities and expenses (including reasonable costs of investigation)
arising out of or based upon any breach of any representation, warranty,
agreement or covenant of the Company contained herein or any untrue statement or
alleged untrue statement of a material fact contained in any Prepricing
Prospectus the Registration Statement, the Prospectus, any amendment or
supplement thereto, or in any Registration Statement filed pursuant to Rule
462(b) under the Act, or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein no misleading, or arising out of or
based upon any untrue statement or alleged untrue statement of any material fact
contained in any audio or visual materials used in connection with the marketing
of the Shares, including, without limitation, slides, videos, films and tape
recordings, except insofar as such losses, claims, damages, liabilities or
expenses arise out of or are based upon an untrue statement or omission or
alleged untrue statement or omission which has been made therein or omitted
therefrom in reliance upon and in conformity with the information relating to an
Underwriter furnished in writing to the Company by or on behalf of any
Underwriter through you expressly for use in connection therewith or arise out
of materials prepared solely by the Underwriters without the knowledge of the
Company or any of its representatives based upon material information obtained
from sources other than, directly or indirectly, the Company or its
representatives. This indemnification shall be in addition to any liability that
the Company may otherwise have.
Each Selling Stockholder, severally and not jointly, agrees to indemnify
and hold harmless you and each other Underwriter and each person, if any, who
controls any underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation) arising
out of or based upon any breach of any representation, warranty, agreement or
covenant of such Selling Stockholder contained herein or any untrue statement or
alleged untrue statement of a material fact contained in any Prepricing
Prospectus the Registration Statement, the Prospectus, any amendment or
supplement thereto, or in any Registration Statement filed pursuant to Rule
462(b) under the Act, or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein no misleading, but only with respect to
information relating to such Selling Stockholder furnished in writing by or on
behalf of such Selling Stockholder through you expressly for use in the
Registration Statement, the Prospectus or any
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<PAGE> 18
Prepricing Prospectus, any amendment or supplement thereto, or any Registration
Statement filed pursuant to Rule 462(b) under the Act. This indemnification
shall be in addition to any liability that the Selling Stockholders or any
Selling Stockholder may otherwise have.
If any action or claim shall be brought against any Underwriter or any
person controlling any Underwriter in respect of which indemnity may be sought
against the Company or any Selling Stockholder, such Underwriter or such
controlling person shall promptly notify in writing the party(s) against whom
indemnification is being sought (the "indemnifying party" or "indemnifying
parties"), and such indemnifying party(s) shall assume the defense thereof,
including the employment of counsel reasonably acceptable to such Underwriter or
such controlling person and payment of all fees and expenses. Such Underwriter
or any such controlling person shall have the right to employ separate counsel
in any such action and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Underwriter or such
controlling person unless (i) the indemnifying party(s) has (have) agreed in
writing to pay such fees and expenses, (ii) the indemnifying party(s) has (have)
failed to assume the defense and employ counsel reasonably acceptable to the
Underwriter or such controlling person, or (iii) the named parties to any such
action (including any impleaded parties) include both such Underwriter or such
controlling person and the indemnifying party(s), and such Underwriter or such
controlling person shall have been advised by its counsel that representation of
such indemnified party and any indemnifying party(s) by the same counsel would
be inappropriate under applicable standards of professional conduct (whether or
not such representation by the same counsel has been proposed) due to actual or
potential differing interests between them (in which case the indemnifying
party(s) shall not have the right to assume the defense of such action on behalf
of such Underwriter or such controlling person). The indemnifying party(s) shall
not be liable for any settlement of any such action effected without its (their)
written consent, but if settled with such written consent, or if there be a
final judgment for the plaintiff in any such action, the indemnifying party(s)
agrees to indemnify and hold harmless any Underwriter and any such controlling
person from and against any loss, claim, damage, liability or expense by reason
of such settlement or judgment, but in the case of a judgment only to the extent
stated in the immediately preceding paragraph.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement, and any person who controls the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, and each Selling Stockholder,
to the same extent as the foregoing indemnity from the Company and each Selling
Stockholder to each Underwriter, but only with respect to information relating
to such Underwriter furnished in writing by or on behalf of such underwriter
through you expressly for use in the Registration Statement, the Prospectus or
any Prepricing Prospectus, any amendment or supplement thereto, or any
Registration Statement filed pursuant to Rule 462(b) under the Act. If any
action or claim shall be brought or asserted against the Company, any of its
directors, any such officers, or any such controlling person or any Selling
Stockholder based on the Registration Statement, the Prospectus or any
Prepricing Prospectus, any amendment or supplement thereto, or any Registration
Statement filed pursuant to Rule 462(b) under the Act, and in respect of which
indemnity may besought against any Underwriter pursuant to this paragraph, such
Underwriter shall have the rights and duties given to the Company and the
Selling Stockholders by the preceding paragraph (except that if the Company
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or any Selling Stockholder shall have assumed the defense thereof such
Underwriter shall not be required to do so, but may employ separate counsel
therein and participate in the defense thereof, but the fees and expenses of
such counsel shall be at such Underwriter's expense), and the Company, its
directors, any such officers, and any such controlling persons and the Selling
Stockholders shall have the rights and duties given to the Underwriters by the
immediately preceding paragraph. This indemnification shall be in addition to
any liability the Underwriters or any Underwriter may otherwise have.
If the indemnification provided for in this Section 8 is unavailable to
an indemnified party under the first, second or fourth paragraph hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company or the Selling Stockholders, as applicable, on the one hand and the
Underwriters on the other hand from the offering of the Shares of (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company or
the Selling Stockholders, as applicable, on the one hand and the Underwriters on
the other in connection with the statements or omissions that resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company or the
Selling Stockholders, as applicable, on the one hand and the Underwriters on the
other hand shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Shares (before deducting expenses) received by
the Company or the Selling Stockholders, as applicable, bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Prospectus; provided
that, in the event that the Underwriters shall have purchased any Additional
Shares hereunder, any determination of the relative benefits received by the
Company or the Underwriters from the offering of the Shares shall include the
net proceeds (before deducting expenses) received by the Company, and the
underwriting discounts and commissions received by the Underwriters, from the
sale of such Additional Shares, in each case computed on the basis of the
respective amounts set forth in the notes to the table on the cover page of the
Prospectus. The relative fault of the Company or the Selling Stockholders, as
applicable on the one hand and the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Selling Stockholders, as
applicable, on the one hand or by the Underwriters on the other hand and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
In any event, neither the Company nor the Selling Stockholder will,
without the prior written consent of the Representative, settle or compromise or
consent to the entry of any judgment in any proceeding or threatened claim,
action, suit or proceeding in respect of which indemnification may be sought
hereunder (whether or not the Representative or any person who controls the
Representative within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act is a party to such claim, action, suit or proceeding) unless such
settlement,
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compromise or consent includes an unconditional release of all Underwriters and
such controlling persons from all liability arising out of such claim, action,
suit or proceeding.
The Company, the Selling Stockholders and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 8 was
determined by a pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in the fifth paragraph
of this Section 8. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities and expenses referred to in
the fifth paragraph of this Section 8 shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price of the Shares underwritten by it and distributed to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 8 are several in proportion to the respective numbers of Firm Shares set
forth opposite their names in Schedule I hereto (or such numbers of Firm Shares
increased as set forth in Section 10 hereof) and not joint.
Notwithstanding the foregoing, the liability of each Selling Stockholder
under the representations and warranties contained in Section 6 and Section 6A
hereof and under the indemnity agreements contained in the provisions of this
Section 8 shall be limited to an amount equal to the public offering price of
the Shares sold by such Selling Stockholder to the Underwriters minus the amount
of the underwriting discount paid thereon to the Underwriters by such Selling
Stockholder. The Company and such Selling Stockholders may agree, as among
themselves and without limiting the rights of the Underwriters under this
Agreement, as to the respective amounts of such liability for which they each
shall be responsible.
In any proceeding relating to the Registration Statement, any
Preliminary Prospectus, the Prospectus, any supplement or amendment thereto, or
any registration statement filed pursuant to Section 462(b) of the Act, each
party against whom contribution may be sought under this Section 8 hereby
consents to the jurisdiction of any court having jurisdiction over any other
contributing party, agrees that process issuing from such court may be served
upon him or it by any other contributing party and consents to the service of
such process and agrees that any other contributing party may join him or it as
an additional defendant in any such proceeding in which such other contributing
party is a party.
Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 8 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Company and the Selling Stockholders set
forth in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation
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made by or on behalf of any Underwriter or any person controlling any
Underwriter, the Company, its directors or officers or any person controlling
the Company, or any Selling Stockholder, (ii) acceptance of any Shares and
payment therefor hereunder, and (iii) any termination of this Agreement. A
successor to any Underwriter or any person controlling any Underwriter, to the
Company, its directors or officers, or any person controlling the Company, or
any Selling Stockholder, shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 8.
SECTION 9. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The several
obligations of the Underwriters to purchase the Firm Shares hereunder are
subject to the following conditions:
(a) The Registration Statement shall have become effective not later
than 5:00 p.m., New York City time, on the date hereof, or at such later date
and time as shall be consented to in writing by you, and all filings required by
Rules 424(b) and 430A under the Act shall have been timely made; and any request
of the Commission for additional information (to be included in the Registration
Statement or otherwise) shall have been disclosed to the Representative and
complied with to its reasonable satisfaction.
(b) Subsequent to the effective date of the Registration Statement there
shall not have occurred any change, or any development involving, or which might
reasonably be expected to involve, a potential future material adverse change,
in the condition (financial or other), business, properties, net worth or
results of operations of the Company and its subsidiary, taken as a whole, not
contemplated by the Prospectus (or any supplement thereto), that in your
reasonable opinion, as Representative of the several Underwriters, would
materially and adversely affect the market for the Shares.
(c) You shall have received on the Closing Date (and the Additional
Closing Date, if any) an opinion of Parr Waddoups Brown Gee & Loveless, counsel
for the Company, dated the Closing Date (and the Additional Closing Date, if
any), satisfactory to you and your counsel, to the effect that:
(i) The Company is a corporation duly incorporated under the laws
of the State of Utah, and validly existing in good standing, with full
corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration Statement
and the Prospectus (and any amendment or supplement thereto), and is
duly registered and qualified to conduct its business and is in good
standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure to so register or qualify does
not have a material adverse effect on the condition (financial or
other), business, properties, net worth or results of operation of the
Company and the Subsidiaries, taken as a whole.
(ii) Each subsidiary of the Company is a corporation duly
organized and validly existing in good standing under the laws of the
jurisdiction of its organization, with full corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Prospectus
(and
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any amendment or supplement thereto), and is duly registered and
qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct
of its business requires such registration or qualification, except
where the failure to so register or qualify does not have a material
adverse effect on the condition (financial or other), business,
properties, net worth or results of operation of the Company and its
subsidiaries, taken as a whole. All issued and outstanding shares of
capital stock of each subsidiary have been validly issued and are fully
paid and nonassessable and free and clear of all liens, encumbrances,
equities and claims. To such counsel's knowledge, the Company does not
own or control, directly or indirectly, any corporation, association or
other entity other than SkyWest Airlines, Inc.;
(iii) The authorized capital stock and other securities of the
Company conform in all material respects as to legal matters to the
description thereof contained in the Prospectus under the caption
"Description of Capital Stock."
(iv) All shares of capital stock or other securities of the
Company outstanding prior to the issuance of the Shares to be issued and
sold by the Company hereunder have been duly authorized and validly
issued, are fully paid and nonassessable and have not been issued in
violation of any co-sale right, registration right, right of first
refusal, preemptive right, or other similar right.
(v) All offers and sales of the Company's capital stock or other
securities prior to the date hereof were made in compliance with the
registration provisions of the Act and the registration provisions of
all other applicable state and federal laws or regulations or any
actions under the Act, or any state or federal laws or regulations in
respect of any such offers or sales are effectively barred by effective
waivers or statutes of limitation.
(vi) The Shares to be issued and sold to the Underwriters by the
Company, and the Shares to be sold by the Selling Stockholders,
hereunder have been duly authorized and, when issued and delivered to
the Underwriters against payment therefor in accordance with the terms
hereof, will be validly issued, fully paid and nonassessable and free
and clear of all liens, encumbrances, equities and claims and will not
have been issued in violation of any co-sale right, registration right,
right of first refusal, preemptive right, or other similar right.
(vii) The form of certificates for the Shares conforms to the
requirements of the applicable corporate laws of the State of Utah.
(viii) The Registration Statement has become effective under the
Act and, to the knowledge of such counsel after reasonable inquiry, no
stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose are pending before
or threatened by the Commission.
(ix) The Company has all requisite corporate power and authority
to enter into this Agreement and to issue, sell and deliver the Shares
to be sold by it to the
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Underwriters as provided herein, and this Agreement has been duly
authorized, executed and delivered by the Company and is a valid, legal
and binding agreement of the Company enforceable against the Company in
accordance with its terms, except as enforceability thereof may be
limited by (A) the application of bankruptcy, reorganization, insolvency
and other laws affecting creditors' rights generally, and (B) equitable
principles being applied at the discretion of a court before which any
proceeding may be brought; and the Company has adequate authorization
and has taken all action necessary to authorize the indemnification
provisions contained in Section 8 herein, provided, however that such
counsel may specifically refrain from opining as to the validity of the
indemnification provisions hereof insofar as they are or may be held to
be violative of public policy (under either state or federal law)
against such types of provisions in the context of the offer, offer for
sale, or sale of securities.
(x) Neither the Company nor any subsidiary is in violation of its
respective articles of incorporation or bylaws or other charter
documents, and to the knowledge of such counsel after reasonable
inquiry, neither the Company nor any subsidiary is in default in the
performance of any material obligation, agreement or condition contained
in any bond, indenture, note or other evidence of indebtedness or in any
other agreement material to the Company and its subsidiaries, taken as a
whole.
(xi) Neither the offer, sale or delivery of the Shares, the
execution, delivery or performance of this Agreement, compliance by the
Company with all provisions hereof nor consummation by the Company of
the transactions contemplated hereby conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, articles
of incorporation or bylaws or other charter documents, of the Company or
any subsidiary, or any agreement, indenture, lease or other instrument
to which the Company or any subsidiary, or any of their respective
properties, is bound, that is or was required to be filed by the Company
with the Commission, or is known to such counsel after reasonable
inquiry, or will result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
subsidiary, nor will any such action result in any violation of any
existing law, regulation, ruling (assuming compliance with all
applicable state securities and Blue Sky laws), judgment, injunction,
order or decree known to such counsel after reasonable inquiry,
applicable to the Company or any subsidiary, or any of their respective
properties.
(xii) No consent, approval, authorization or other order of, or
registration or filing with, any court, regulatory body, administrative
agency or other governmental body, agency or official is required on the
part of the Company (except such as have been obtained under the Act or
such as may be required under state securities or Blue Sky laws
governing the purchase and distribution of the Shares) for the valid
issuance and sale of the Shares to the Underwriters under this
Agreement.
(xiii) The Registration Statement and the Prospectus and any
supplements or amendments thereto (except for the financial statements
and the notes thereto and the schedules and other financial and
statistical data included or incorporated by reference therein, as to
which such counsel need not express any opinion) comply as to form in
all
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material respects with the requirements of the Act, and the conditions
to the use of Form S-3 have been satisfied by the Company.
(xiv) To the knowledge of such counsel after reasonable inquiry,
(A) there are no legal or governmental proceedings pending or threatened
against the Company or any subsidiary, or to which the Company or any
subsidiary, or any of their respective properties, are subject, that are
required to be described in the Registration Statement or Prospectus (or
any amendment or supplement thereto) or any document incorporated by
reference therein that are not described as required therein, and (B)
there are no agreements, contracts, indentures, leases or other
instruments, that are required to be described in the Registration
Statement or the Prospectus (or any amendment or supplement thereto) or
any document incorporated by reference therein or to be filed as an
exhibit to the Registration Statement or incorporated by reference
therein that are not described or filed as required, as the case may be.
(xv) To the knowledge of such counsel after reasonable inquiry,
neither the Company nor any subsidiary is in violation of any law,
ordinance, administrative or governmental rule or regulation applicable
to the Company or any subsidiary or of any decree of any court or
governmental agency or body having jurisdiction over the Company or any
subsidiary except where such violation does not and will not have a
material adverse effect on the condition (financial or other), business,
properties, net worth or results of operation of the Company and its
subsidiaries, taken as a whole.
(xvi) To the knowledge of such counsel after reasonable inquiry,
the Company and the Subsidiaries have such permits, licenses,
franchises, approvals, consents and authorizations of governmental or
regulatory authorities ("permits"), as are necessary to own their
respective properties and to conduct their respective businesses in the
manner described in the Registration Statement and the Prospectus (or
any amendment or supplement thereto), subject to such qualifications as
may be set forth therein; the Company and the Subsidiaries have
fulfilled and performed all of their respective material obligations
with respect to such permits and no event has occurred which allows, or
after notice or lapse of time would allow, revocation or termination
thereof or result in any other material impairment of the rights of the
holder of any such permit, subject in each case to such qualification as
may be set forth in the Registration Statement and the Prospectus (or
any amendment or supplement thereto); and except as described in the
Registration Statement and the Prospectus (or any amendment or
supplement thereto), such permits contain no restrictions that are
materially burdensome to the Company and the Subsidiaries, taken as a
whole.
(xvii) The property described in the Registration Statement and
the Prospectus (or any amendment or supplement thereto) as held under
lease by the Company or any of its subsidiaries is held under valid,
subsisting and enforceable leases, with only such exceptions as in the
aggregate are not material and do not interfere in any material respect
with the conduct of the business of the Company and the Subsidiaries,
taken as a whole.
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(xviii) Such counsel has reviewed all agreements, contracts,
indentures, leases or other documents or instruments referred to in the
Registration Statement and the Prospectus (or any amendment or
supplement thereto) (other than routine contracts entered into by the
Company or any of its subsidiaries for the purchase of materials or the
sale of products, entered into in the normal course of business) and
such agreements, contracts, indentures, leases or other documents or
instruments are fairly summarized or disclosed therein, and filed as
exhibits thereto or incorporated by reference therein as required, and
such counsel does not know, after reasonable inquiry, of any agreements,
contracts, indentures, leases or other documents or instruments required
to be so summarized or disclosed or filed which have not been so
summarized or disclosed or filed.
(xix) The statements in the Registration Statement and the
Prospectus, insofar as such statements constitute a summary of documents
referred to therein or matters of law, are accurate summaries and fairly
and correctly summarize and present in all material respects the
information called for with respect to such documents and matters. Such
counsel has no reason to believe that the descriptions in the
Registration Statement and the Prospectus (or any amendment or
supplement thereto) of statutes, regulations or legal or governmental
proceedings are other than accurate or fail to present fairly the
information required to be shown.
(xx) Neither the Company nor any subsidiary is, nor will any of
them become, as a result of the consummation of the transactions
contemplated hereby and the application of the net proceeds therefrom as
set forth in the Registration Statement and the Prospectus (or any
amendment or supplement thereto) under the caption "Use of Proceeds," an
"investment company" or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended.
(xxi) Each Selling Stockholder that is not a natural person has
full right, power and authority to enter into and to perform its
obligations under the Power of Attorney and Custody Agreement to be
executed and delivered by it in connection with the transactions
contemplated herein; the Power of Attorney and Custody Agreement of each
Selling Stockholder that is not a natural person has been duly
authorized by such Selling Stockholder has been duly executed and
delivered by or on behalf of such Selling Stockholder; and the Power of
Attorney and Custody Agreement of each Selling Stockholder constitutes
the valid and binding agreement of such Selling Stockholder, enforceable
in accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally or by
general equitable principles;
(xxii) Each of the Selling Stockholders has full right, power and
authority to enter into and to perform its obligations under this
Agreement and to sell, transfer, assign and deliver the Shares to be
sold by such Selling Stockholder hereunder;
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(xxiii) This Agreement has been duly authorized by each Selling
Stockholder that is not a natural person and has been duly executed and
delivered by or on behalf of each Selling Stockholder and, assuming due
authorization, execution and delivery by you, is a valid and binding
agreement of such Selling Stockholder, enforceable in accordance with
its terms, except insofar as the indemnification and contribution
provisions hereunder may be limited by applicable law and except as the
enforcement hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable
principles;
(xxiv) Upon the delivery of and payment for the Shares as
contemplated in this Agreement, each of the Underwriters will receive
valid marketable title to the Shares purchased by it from such Selling
Stockholder, free and clear of any pledge, lien, security interest,
encumbrance, claim or equitable interest. In rendering such opinion,
such counsel may assume that the Underwriters are without notice of any
defect in the title of any of such Selling Stockholders to the Shares
being purchased from such Selling Stockholders;
In rendering such opinion, counsel may rely upon an opinion or opinions,
each dated the Closing Date (and the Additional Closing Date, if applicable), of
other counsel as to the laws of a jurisdiction other than the State of Utah,
provided that (1) each such local counsel is acceptable to you, (2) each such
opinion so relied upon is addressed to counsel and you, (3) such reliance is
expressly authorized by each opinion so relied upon and a copy of each such
opinion is delivered to you and is in form and substance satisfactory to you,
and (4) counsel shall state in their opinion that they believe that they and you
are justified in relying thereon. In rendering such opinion, local counsel may
rely, to the extent they deem such reliance proper, as to matters of fact upon
certificates of officers of the Company and of government officials. Copies of
all such certificates shall be furnished to you and your counsel on the Closing
Date (and the Additional Closing Date, if applicable).
In rendering such opinion, in each case where such opinion is qualified
by "the knowledge of such counsel after reasonable inquiry," such counsel may
rely as to matters of fact upon certificates of executive and other officers and
employees of the Company as you and such counsel shall deem are appropriate and
such other procedures as you and such counsel shall mutually agree; provided,
however, in each such case, such counsel shall state that it has no knowledge
contrary to the information contained in such certificates or developed by such
procedures and knows of no reason why you should not reasonably rely upon the
information contained in such certificates or developed by such procedures.
In addition to the opinion set forth above, such counsel shall state
that during the course of the preparation of the Registration Statement and the
Prospectus, and any amendments or supplements thereto, nothing has come to the
attention of such counsel which has caused it to believe that the Registration
Statement, as of the time it became effective under the Act, the Prospectus or
any amendment or supplement thereto, on the date it was filed pursuant to Rule
424(b), as of the respective dates when such documents were filed with the
Commission, and the Registration Statement and the Prospectus, or any amendment
or supplement thereto, as of the Closing Date (except for the financial
statements and other financial and statistical information
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contained therein or omitted therefrom as to which no opinion need be
expressed), contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the statement
therein not misleading. With respect to such statement, counsel shall state that
although such counsel did not undertake to determine independently the accuracy,
completeness and fairness of the statements contained in the Registration
Statement or in the Prospectus and takes no responsibility therefor (except to
the extent specifically set forth herein), such counsel did participate in
discussions and meetings with officers and other representatives of the Company
and discussions with the auditor for the Company in connection with the
preparation of the Registration Statement and the Prospectus, and it is on the
basis of the foregoing (relying as to certain factual matters on the information
provided to such counsel and not on an independent investigation) that such
counsel is making such statement.
(d) You shall have received on the Closing Date (and the Additional
Closing Date, if nay) an opinion of King & Spalding, counsel for the
Underwriters, dated the Closing Date (and the Additional Closing Date, if any),
with respect to the issuance and sale of the Firm Shares, the Registration
Statement and other related matters as you may reasonably request, and the
Company and its counsel shall have furnished to your counsel such documents as
they may reasonably request for the purpose of enabling them to pass upon such
matters.
(e) You shall have received letters addressed to you and dated the date
hereof and the Closing Date (and the Additional Closing Date, if any) from
Arthur Andersen & Co. LLP, independent certified public accountants,
substantially in the forms heretofore approved by you.
(f) (i) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been taken or, to the knowledge of the Company, shall be contemplated by the
Commission at or prior to the Closing Date; (ii) there shall not have been any
change in the capital stock or other securities of the Company nor any material
increase in the short-term or long-term debt of the Company (other than in the
ordinary course of business) from that set forth or contemplated in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto); (iii) there shall not have been since the respective dates as of which
information is given in the Registration Statement and the Prospectus (or any
amendment or supplement thereto), except as may otherwise be stated in the
Registration Statement and Prospectus (or any amendment or supplement thereto),
any material adverse change (present or potential future) in the condition
(financial or other), business properties, net worth or results of operations of
the Company and the Subsidiaries shall not have any liabilities or obligations,
direct or contingent (whether or not in the ordinary course of business) that
are material to the Company and its subsidiaries, taken as a whole, other than
those reflected in the Registration Statement or the Prospectus (or any
amendment or supplement thereto); and (v) all of the representations and
warranties of the Company contained in this Agreement shall be true and correct
in all material respects on and as of the date hereof and on and as of the
Closing Date as if made on and as of the Closing Date, and you shall have
received a certificate, dated the Closing Date and signed by the chief executive
officer and the chief financial officer of the Company (or such other officers
as are acceptable to you) to the effect set forth in this Section 9(f) and in
Section 9(g) hereof.
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(g) The Company shall not have failed in any material respect at or
prior to the Closing Date to have performed or complied with any of its
agreements herein contained and required to be performed or complied with by it
hereunder at or prior to the Closing Date.
(h) You shall be satisfied that, and you shall have received a
certificate dated the Closing Date, from the Attorneys for each Selling
Stockholder to the effect that, as of the Closing Date, they have not been
informed that: (i) the representations and warranties made by such Selling
Stockholder herein are not true or correct in any material respect on the
Closing Date; or (ii) such Selling Stockholder has not complied with any
obligation or satisfied any condition which is required to be performed or
satisfied on his or its part at or prior to the Closing Date.
(i) The Company and the Selling Stockholders shall have furnished or
caused to have been furnished to you such further certificates and documents as
you shall be reasonably requested.
(j) At or prior to the Closing Date, you shall have received the written
agreement of each of the Company's directors and executive officers not to
offer, sell or otherwise dispose of any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for, or any rights to purchase
or acquire, Common Stock, during the period from August , 2000 to the date 90
days following the effective date of the Registration Statement, inclusive,
without the prior written consent of Raymond James & Associates, Inc., which
commitments shall be in full force and effect as of the Closing Date (and the
Additional Closing Date, if any).
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you and your counsel.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the satisfaction on and as of the Additional
Closing Date of the conditions set forth in this Section 9, except that, if the
Additional Closing Date is other than the Closing Date, the certificates,
opinions and letters referred to in paragraphs (c) through (i) shall be dated in
the Additional Closing Date and the opinions and letters referred to in
paragraphs (c) through (i) shall be revised to reflect the sale of Additional
Shares.
SECTION 10. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become
effective upon the later of (a) the execution and delivery hereof by the parties
hereto, or (b) release of notification of the effectiveness of the Registration
Statement by the Commission.
If any one or more of the Underwriters shall fail or refuse to purchase
Firm Shares which it or they have agreed to purchase hereunder, and the
aggregate number of Firm Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate number of Firm Shares, each non-defaulting Underwriter shall be
obligated, severally, in the proportion which the number of Firm Shares set
forth opposite its name in Schedule I hereto bears to the aggregate number of
Firm Shares set forth opposite the names of all non-defaulting Underwriters or
in such other proportion as you may specify in the
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Agreement Among Underwriters, to purchase the Firm Shares which such defaulting
Underwriter or Underwriters agreed, but failed or refused to purchase. If any
Underwriter or Underwriters shall fail or refuse to purchase Firm Shares and the
aggregate number of Firm Shares with respect to which such default occurs is
more than one-tenth of the aggregate number of Firm Shares and arrangements
satisfactory to you and the Company for the purchase of such Firm Shares are not
made with 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Company or any
Selling Stockholder. In any such case that does not result in termination of
this Agreement, either you or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven (7) days, in order that the
required changes, if any, in the Registration Statement and the Prospectus or
any other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any such default of any such Underwriter under this Agreement.
SECTION 11. TERMINATION OF AGREEMENT. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Underwriter to the Company, by notice to the Company, if prior to the Closing
Date or the Additional Closing Date (if different from the Closing Date and then
only as to the Additional Shares), as the case may be, (i) trading in securities
generally on the New York Stock Exchange, American Stock Exchange or The Nasdaq
Stock Market shall have been suspended or materially limited, (ii) trading of
any securities of the Company, including the Shares, on the New York Stock
Exchange, American Stock Exchange or The Nasdaq Stock Market shall have been
suspended or materially limited, whether as the result of a stop order by the
Commission or otherwise, (iii) a general moratorium on commercial banking
activities in New York or Florida shall have been declared by either federal or
state authorities, (iv) there shall have occurred any outbreak or escalation of
hostilities or other international or domestic calamity, crisis or change in
political, financial or economic conditions or other material event the effect
of which on the financial markets of the United States is such as to make it, in
your judgment, impracticable or inadvisable to market the Shares or to enforce
contracts for the sale of the Shares, or (v) the Company or any subsidiary shall
have, in the sole judgment of the Representative, sustained any loss or
interference, material to the Company and its subsidiaries, taken as a whole,
with their respective businesses or properties from fire, flood, hurricane,
accident, or other calamity, whether or not covered by insurance, or from any
labor disputes or any legal or governmental proceeding, or there shall have been
any material adverse change (including, without limitation, a material change in
management or control of the Company) in the condition (financial or otherwise),
business prospects, net worth, or results of operations of the Company and its
subsidiaries, taken as a whole, except in each case as described in, or
contemplated by, the Prospectus (excluding any amendment or supplement thereto).
Notice of such cancellation shall be promptly given to the Company and its
counsel by telegraph, telecopy or telephone and shall be subsequently confirmed
by letter.
All representations, warranties, covenants and agreements of the Company
and the Selling Stockholders herein or in certificates delivered pursuant
hereto, and the indemnity and contribution agreements contained in Section 8
hereof shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or any controlling person,
or by or on behalf of the Company or any Selling Stockholder, or any of their
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officers, directors or controlling persons, and shall survive the delivery of
the Shares to the several Underwriters hereunder or the termination of this
Agreement.
SECTION 12. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements
set forth under the caption "Underwriting" in any Prepricing Prospectus and in
the Prospectus, constitute all the information furnished by or on behalf of the
Underwriters through you or on your behalf as such information is referred to in
Sections 6 and 8 hereof.
SECTION 13. NOTICES; SUCCESSORS AND ASSIGNS. Except as otherwise
provided herein, notice given pursuant to any of the provisions of this
Agreement shall be in writing and shall be delivered (i) if to the Company, at
the office of the Company at 444 South River Road, St. George, Utah 84790,
Attention: Jerry C. Atkin, Chief Executive Officer (with a copy to Parr Waddoups
Brown Gee & Loveless, 185 South State Street, Suite 1300, Salt Lake City, Utah
84111, Attention: Brian G. Lloyd); or (ii) if to you, as the Underwriters, to
Raymond James & Associates, Inc., 880 Carillon Parkway, St. Petersburg, Florida
33716, Attention: Thomas W. Mullins (with a copy to King & Spalding, 191
Peachtree Street, Atlanta, Georgia 30303, Attention: John J. Kelley III); or
(iii) if to one or more of the Selling Stockholders, to Jerry C. Atkin, as
Attorney-in-Fact for the Selling Stockholders, at 444 South River Road, St.
George, Utah 84790.
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Company, its directors and officers and the other
controlling persons referred to in Section 8 hereof, and the Selling
Stockholders, and their respective successors and assigns, to the extent
provided herein, and no other person shall acquire or have any right under or by
virtue of this Agreement. Neither of the terms "successor" and "successors and
assigns" as used in this Agreement shall include a purchaser from you of any of
the Shares in his status as such purchaser.
SECTION 14. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be
governed by and construed in accordance with the laws of the State of Florida
without reference to choice of law principles thereunder. This Agreement may be
signed in various counterparts which together shall constitute one and the same
instrument. This Agreement shall be effective when, but only when, at least one
counterpart hereof shall have been executed on behalf of each party hereto.
30
<PAGE> 31
If the foregoing correctly sets forth our understanding, please indicate
your acceptance thereof in the space provided below for that purpose, whereupon
this letter and your acceptance shall constitute a binding agreement between us.
Very truly yours,
SKYWEST, INC.
By:_________________________________
Name:_______________________________
Title:______________________________
SELLING STOCKHOLDERS
By:_________________________________
Attorney-in-Fact for the
Selling Stockholders
named in Schedule II hereto
CONFIRMED as of the date first
above mentioned, on behalf of
itself and the other several
Underwriters named in Schedule I
hereto.
RAYMOND JAMES & ASSOCIATES, INC.
By:__________________________________
Authorized Representative
<PAGE> 32
SCHEDULE I
UNDERWRITERS
<TABLE>
<CAPTION>
Number of
Name Firm Shares
---- -----------
<S> <C>
Raymond James & Associates Inc.
Total
</TABLE>
<PAGE> 33
SCHEDULE II
SELLING STOCKHOLDERS
<TABLE>
<CAPTION>
Number of
Name Firm Shares
---- -----------
<S> <C>
TOTAL
===========
</TABLE>
