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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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MESA AIR GROUP, INC.
(Exact name of Registrant as specified in charter)
New Mexico 85-0302351
(State or Other Jurisdiction of Incorporation (I.R.S. Employer
or Organization) Identification No.)
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2325 East 30th Street
Farmington, New Mexico 87401
(Address of Principal Executive Office)
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MESA AIR GROUP, INC. RESTATED AND AMENDED EMPLOYEE STOCK OPTION PLAN
(Full title of plan)
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Gary E. Risley, Esq. COPIES TO:
Vice President of Legal Affairs and Secretary Paul R. Madden, Esq.
MESA AIR GROUP, INC. CHAPMAN AND CUTLER
2325 East 30th Street Two North Central, Suite 1100
Farmington, New Mexico 87401 Phoenix, Arizona 85004
(505) 327-0271 (602) 256-4060
(Name, address and telephone number
of agent for service)
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Calculation of Registration Fee
<TABLE>
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<S> <C> <C> <C> <C>
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PRICE PER SHARE(1) PRICE(1) FEE
- -----------------------------------------------------------------------------------------------
Common Stock, 2,800,000 $13.625 $38,150,000 $13,156
no par value
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</TABLE>
(1) Estimated pursuant to Rule 457(h) solely for the purpose of calculating
the amount of the registration fee on the basis of the average of the high and
low prices of the Common Stock as reported on the NASDAQ National Market on
April 23, 1996 because the price at which the options to be granted in the
future may be exercised is not currently determinable.
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PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INFORMATION INCORPORATED BY REFERENCE
The following documents and information heretofore filed with the
Securities and Exchange Commission are hereby incorporated by reference:
(a) The Registrant's Annual Report on Form 10-K, File Number
0-15495, filed on December 15, 1995, which contains audited financial
statements for the Registrant's latest fiscal year ended September 30,
1995.
(b) The Registrant's Quarterly Report on Form 10-Q, File
Number 0-15495, filed on February 14, 1996, which contains the
Registrant's unaudited financial statements for the three months ended
December 31, 1995 and 1994.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be part
hereof from the date of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 53-11-4.1 of the New Mexico Business Corporation Act provides
that unless limited by the Articles of Incorporation, a director or officer
who, in the Board of Directors' opinion reasonably based on the facts,
circumstances and outcome of the proceeding, has been wholly successful, on the
merits or otherwise, and the defense of any proceeding to which the director or
officer is a party by reason of the fact that he is or was a director or
officer, shall be indemnified against reasonable expenses incurred by the
director or officer in connection with the proceeding.
Article VIII of the Company's Restated Articles of Incorporation states
that:
"A corporation shall indemnify each person identified in subsections
A(1) and A(4) of Section 53-11-4.1 N.M.S.A. 1978, as amended, to the fullest
extent permissible under Section 53-11-4.1 N.M.S.A. 1978, as amended, or the
indemnification provisions of any
<PAGE> 3
successor or of any statutes or as provided in the Bylaws of the corporation,
any agreement or any resolution adopted by the shareholders or directors."
Article X of the Second Amended and Restated Bylaws states that:
"In accordance with the procedures and subject to the limitations set
forth in the New Mexico Business Corporation Act, and to the fullest extent
permitted by the Business Corporation Act, the corporation shall indemnify any
director or officer or former director or officer of the corporation, or any
person who may have served at its request as a director or officer or another
corporation in which it owned shares of capital stock or of which it is a
creditor, against expenses actually and reasonably incurred by him in
connection with the defense of any action, suit or proceeding, civil or
criminal, in which he is made a party by reason of being or having been such a
director or officer."
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, or persons controlling the
Company pursuant to the foregoing provisions, the Company has been informed and
in the opinion of the Securities and Exchange Commission, such indemnification
is against public policy as expressed in the Securities Act of 1933, and is
therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
Exhibit No. Description
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4.1 Mesa Air Group, Inc. Restated and Amended Employee
Stock Option Plan
4.2 Form of Non-Qualified Stock Option
4.3 Form of Qualified Stock Option
5 Opinion of Chapman and Cutler
24.1 The consent of Chapman and Cutler is contained in
Exhibit 5.
24.2 Consent of KPMG Peat Marwick LLP
25 Power of Attorney (contained on Page II-4).
ITEM 9. UNDERTAKINGS
The Registrant hereby undertakes:
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(a) To file, during any period in which offers or sales are being
made of the securities registered hereby, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or for
the most recent post-effective amendment thereof) which, individually,
or in the aggregate, represent a fundamental change in the information
set forth in this Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
statement or any material change to such information in this
Registration Statement;
provided, however, that the undertakings set forth in paragraphs (i) and (ii)
above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered herein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment of any of the securities being registered which remain unsold at the
termination of the offering.
The Registrant hereby further undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1933 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Act of 1933) that is incorporated by reference in this registration
statement shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the provisions set forth in this Registration
Statement, or otherwise, the Registrant has been advised that in the opinion
of the Securities and Exchange commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such
II-2
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liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person in connection with the
securities being registered) is asserted against the Registrant by such
director, officer or controlling person, in connection with the securities
registered hereby, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all requirements for filing on Form S-8 and has duly caused this S-8
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Farmington, State of New Mexico, on April 23,
1996.
MESA AIR GROUP, INC.
By: /s/ Larry L. Risley
______________________________________
Larry L. Risley, Chairman of the Board
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Larry L. Risley and J. Clark Stevens,
and either of them, as his or her true lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him or her and in his
or her name, place and stead, in any and all capacities to sign any and all
amendments (including post effective amendments) to this Registration Statement,
and to file the same, with all Exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite or necessary
to be done in and about the premises, as fully to all intents and purposes as
he or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or any of them, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
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Pursuant to the requirements of the Securities Act of 1933 this S-8
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
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<S> <C> <C>
SIGNATURE TITLE DATE
--------- ----- ----
Larry L. Risley
__________________________________ Chairman of the Board, Chief
Larry L. Risley Executive Officer and Director April 23, 1996
(Principal Executive Officer)
Clark Stevens
__________________________________ President and Director April 23, 1996
Clark Stevens
W. Stephen Jackson
__________________________________ Vice President Finance and
W. Stephen Jackson Treasurer (Principal Financial April 23, 1996
Officer and Principal Accounting
Officer)
__________________________________ Director April , 1996
Jack Braly
Blaine M. Jones
__________________________________ Director April 23, 1996
Blaine M. Jones
__________________________________ Director April , 1996
George W. Pennington
__________________________________ Director April , 1996
Richard C. Poe
E. Janie Risley
__________________________________ Director April 23, 1996
E. Janie Risley
</TABLE>
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<PAGE> 8
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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EXHIBITS
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REGISTRATION STATEMENT ON FORM S-8
MESA AIR GROUP, INC.
<PAGE> 9
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
4.1 Mesa Air Group, Inc.
Restated and Amended Employee Stock Option Plan
4.2 Form of Non-Qualified Stock Option
4.3 Form of Qualified Stock Option
5 Opinion of Chapman and Cutler
24.1 The consent of Chapman and Cutler is
contained in its Opinion filed as
Exhibit 5 hereto.
24.2 Consent of KPMG Peat Marwick LLP
25 Power of Attorney (contained on II-4.)
</TABLE>
<PAGE> 1
Exhibit 4.1
MESA AIR GROUP, INC.
RESTATED AND AMENDED
EMPLOYEE STOCK OPTION PLAN
RECITALS:
A. On December 1, 1995, the Board of Directors of Mesa Air Group, Inc. (the
"Company") adopted an Employee Stock Option Plan to be effective as of June 28,
1995 (the "Employee Plan").
B. On March 22, 1996, the Board of Directors of the Company adopted the
First Amendment to the Employee Plan and thereafter, on April 8, 1996, the
Employee Plan, as amended, was approved by the shareholders of the Company.
C. The Employee Plan, as amended, provides that amendments to the Employee
Plan may be adopted without the approval of shareholders so long as the
amendments are not Material Amendments as defined in Section 4(b) of the
Employee Plan, as amended.
D. The Company desires to further amend the Employee Plan, as amended, to
correct certain typographical and reference errors and to conform the Employee
Plan to the existing policy of the Company which restricts trading in securities
of the Company by certain employees and, in doing so to restate the Plan as
amended. The Employee Plan as amended and restated is hereinafter referred to as
the "Plan."
x1. PURPOSE OF THE PLAN; TYPE OF PLAN
(a) Attract and Retain Key Employees. The purpose of the Plan is to attract
and retain key employees who are and will be responsible for the growth and
success of the Company and its subsidiaries. The term "subsidiary" means any
corporation other than the Company in an unbroken chain of corporations
beginning with the Company if, at the time of the granting of the Option, as
defined below, each of the corporations other than the last corporation in the
unbroken chain owns shares possessing 50% or more of the total combined voting
power of all classes of stock in one of the other corporations in such chain.
The term "Employee" includes individuals employed by the Company or any of its
subsidiaries.
(b) Incentive Stock Options. Some one or more of the options granted under
the Plan may be intended to qualify as an "incentive stock option" as defined in
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), and
any grant of such an option shall clearly specify that such option is intended
to so qualify. If no such specification is made, an option granted hereunder
shall be intended to not qualify as an "incentive stock option."
(c) Exemption from Short-Swing Liability. Options granted to Officers or
Directors of the Company ("Insiders") pursuant to this Plan shall be exempt from
Section 16(b) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), pursuant to Regulation Section 240.16(b)-3 adopted under the Exchange Act
which was enacted on May 1, 1991.
(d) Formula Plan. This Plan may be administered by the Board of Directors of
the Company (the "Board") or by any person or persons chosen by a majority of
the Board. Grants or awards made pursuant to this Plan are to be made pursuant
to the formula set forth in Section 3 (the "Formula")
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which may be adjusted for non-Insiders at the sole discretion of the Chief
Executive Officer. The Formula is intended to qualify under Regulation
240.16b-3(c)(2)(ii) of the Exchange Act, thereby alleviating the necessity for
disinterested administration of the Plan required by Regulation
240.16b-3(c)(2)(i).
2. STOCK AND MAXIMUM NUMBER OF SHARES SUBJECT TO PLAN
(a) Description of Stock and Maximum Shares Allocated. The stock subject to
the provisions of this Plan and issuable upon exercise of the Options are shares
of the Company's Common Stock, no par value, which may be either unissued or
treasury shares, as the Board may from time to time determine. Subject to
adjustment as provided in Section 6, the aggregate number of shares of Common
Stock covered by the Plan issuable upon exercise of all Options shall be
2,800,000 Shares, which shares shall be reserved for use upon the exercise of
the Options. The shares available for Options and all other shares of Common
Stock of the Company shall be referred to as the "Shares".
(b) Restoration of Unpurchased Shares. If an Option expires or terminates for
any reason prior to the exercise in full before the term of the Plan expires,
the Shares subject to, but not issued under, such Option shall again be
available for other Options hereafter granted.
3. FORMULA AND OPERATION OF THE PLAN
(a) Eligible Persons. Options shall automatically be granted to the Insiders
listed on Schedule "A" in the amounts provided in Section 3(b) and on Schedule
"B." Unless otherwise directed by the Chief Executive Officer, Options shall be
granted to the persons, other than Insiders, who fill each of the positions
listed on Schedule "C" attached hereto (all parties listed on Schedule "C"
shall be referred to herein as "Key Employees").
(b) Date of Grants; Allotment. Adjustment.
Options shall be granted to Insiders in the amounts set forth in
Schedule "B" on June 28, 1995 and on April 1 1996 and 1997; and, with respect
to non-Insiders, on those same dates in amounts determined by the Chief
Executive Officer of the Company up to a maximum amount of 370,000 Options
per year. If an Insider
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is employed by the Company after June 28, 1995, Insider shall, upon the first
day of employment, be granted a pro rata portion of the Options as set forth
in the column labeled "April 1, 1996 and 1997" shown on Schedule "B"
(collectively, the "Pro Rata Options") and Options shall be granted to such
Insider on each succeeding April 1 in the amounts set forth in Schedule "B."
The amount of Pro Rata Options to be granted to each Insider shall be
calculated by dividing the number of days prior to April 1 by the number of
days in the calendar year and multiplying the quotient by the number of
Options listed in Schedule "B" to be allotted to that Insider. Options
granted to non-Insider Key Employees employed by the Company subsequent to
June 28, 1995, shall be pro-rated in a similar manner if granted for the year
in which employment commenced.
(c) Price. The Option price per Share shall not be less than the fair market
value of the Shares, as defined below, on the Grant Date.
(d) Fair Market Value.
(1) If the options granted are intended to qualify as incentive stock
options, the fair market value of a Share on any particular day shall be
determined as follows:
(a) If the Shares are listed or admitted to trading on any securities
exchange, the fair market value shall be the average sales price on such
day on the New York Stock Exchange, or if the Shares have not been listed
or admitted to trading on the New York Stock Exchange, on such other
securities exchange on which such stock is then listed or admitted to
trading, or if no sale takes place on such day on any
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<PAGE> 4
such exchange, the average of the closing bid and asked price on such day
as officially quoted on any such exchange;
(b) If the Shares are not then listed or admitted to trading on any
securities exchange, the fair market value shall be the average sales
price on such day or, if no sale takes place on such day, the average of
the reported closing bid and asked price on such date, in the
over-the-counter market as furnished by the National Association of
Securities Dealers Automated Quotation ("NASDAQ"), or if NASDAQ at the
time is not engaged in the business of reporting such prices, as
furnished by any similar firm then engaged in such business and selected
by the Board; or
(c) If the Shares are not then listed or admitted to trading in the
over-the-counter market, the fair market value shall be the amount
determined by the Board in a manner consistent with Treasury Regulation
Section 20-2031-2 promulgated under the Code or in such other manner
prescribed by the Secretary of the Treasury or the Internal Revenue
Service.
(2) If the Options granted are not intended to qualify as incentive stock
options, the fair market value of a Share on any particular day shall be
determined as follows:
(a) If the Shares are listed or admitted to trading on any securities
exchange, the fair market value shall be the low sales price on such day
on the New York Stock Exchange, or if the Shares have not been listed or
admitted to trading on the New York Stock Exchange, on such other
securities exchange on which such stock is then listed or admitted to
trading, or if no sale takes place on such day on any such exchange, the
average of the closing bid and asked price on such day as officially
quoted on any such exchange;
(b) If the Shares are not then listed or admitted to trading on any
securities exchange, the fair market value shall
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<PAGE> 5
be the low sales price on such day or, if no sale takes place on such
day, the low closing bid price on such date, in the over-the-counter
market as furnished by the National Association of Securities Dealers
Automated Quotation ("NASDAQ"), or if NASDAQ at the time is not engaged
in the business of reporting such prices, as furnished by any similar
firm then engaged in such business and selected by the Board; or
(c) If the Shares are not then listed or admitted to trading in the
over-the-counter market, the fair market value shall be the amount
determined by the Board in a manner consistent with Treasury Regulation
Section 20-2031-2 promulgated under the Code or in such other manner
prescribed by the Secretary of the Treasury or the Internal Revenue
Service.
(e) Duration of Plan. The term of the Plan, unless previously terminated by
the Board, is ten years or June 28, 2005. No Option shall be granted under the
Plan unless granted within ten years after the adoption of the Plan by the
Board, but Options outstanding on that date shall not be terminated or otherwise
affected by virtue of the Plan's expiration.
(f) Vesting of the Options and Pro Rata Options. One-third of the total
Options granted on a Grant Date shall vest on the first anniversary date after
the Grant Date; one-third of the total Options granted on a Grant Date shall
vest on the second anniversary date after the Grant Date; and the remaining
one-third of the total Options granted on a Grant Date shall vest on the third
anniversary date after the Grant Date. One-third of the total Pro Rata Options
shall vest on the first April 1 after their Grant Date (the "Initial Vesting
Date"); one-third of the total Pro Rata Options shall vest on the first
anniversary date after the Initial Vesting Date; and the remaining one-third of
the total Pro Rata Options shall vest on the second anniversary date after the
Initial Vesting Date. However, Pro Rata Options granted to Insiders on or after
October 1 and prior to April 1 in any year shall not vest until the second April
1 following the Grant Date at which time two-thirds of the total Pro Rata
Options shall vest and the remaining one-third of the total Pro Rata Options
shall vest on the first anniversary date thereafter.
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NOTWITHSTANDING ANY PROVISION HEREIN TO THE CONTRARY, OPTIONS GRANTED TO THE
KEY EMPLOYEES SHALL NOT BECOME EXERCISABLE UNTIL SHAREHOLDER APPROVAL AS
REQUIRED BY SECTION 4(a) OF THE PLAN HAS BEEN OBTAINED; AND OPTIONS GRANTED TO
INSIDERS SHALL NOT BECOME EXERCISABLE UNTIL (i) A MINIMUM OF SIX (6) MONTHS HAS
PASSED FROM THE DATE OF SHAREHOLDER APPROVAL, OR (ii) A MINIMUM OF ONE (1) YEAR
HAS PASSED FROM THE GRANT DATE, WHICHEVER OCCURS LATER.
4. TERMS AND CONDITIONS OF OPTIONS
(a) Approval by Shareholders. The Plan shall be submitted to the shareholders
of the Company for their approval at their regular meeting to be held within
twelve (12) months after the adoption of the Plan by the Board. Shareholder
approval shall be evidenced by the affirmative vote of the holders of a majority
of the Shares of Common Stock present in person or by proxy and voting at the
meeting. If the shareholders decline to approve the Plan at such meeting or if
the Plan is not approved by the shareholders within twelve (12) months after its
adoption by the Board, the Plan and all Options and rights granted hereunder
shall automatically terminate to the same extent and with the same effect as
though the Plan had never been adopted.
(b) Amendments to Plan. The approval of the shareholders of the Company shall
be required to (i) increase the aggregate number of shares of Common Stock
subject to the Plan; (ii) change the class of persons eligible to receive
Options; (iii) modify the period within which Options may be granted, the
exercise price or the terms upon which Options may be exercised, or (iv)
increase the material benefits accruing to participants under the Plan.
(Collectively, each of these changes in the Plan are referred to herein as
"Material Amendments.") Notwithstanding any other terms contained herein to the
contrary, no Material Amendments shall be made to the Plan more than one time in
any given one year period. The Board, however, may suspend or terminate the Plan
at any time.
(c) Individual Agreements. Options granted under the Plan shall be evidenced
by agreements in such form as the Board from time to time
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<PAGE> 7
approves, which agreements shall substantially comply with and be subject to the
terms of the Plan.
(d) Required Provisions. Each agreement shall state (i) the total number of
shares to which it pertains, (ii) the exercise price for the shares covered by
the option, (iii) the time at which the option becomes exercisable, (iv) the
scheduled expiration date of the option, (v) the vesting period(s) for such
options, and (vi) the timing and conditions of issuance of any stock option
exercise.
(e) No Fractional Shares. Options shall be granted and exercisable only for
whole shares; no fractional shares will be issuable upon exercise of any Option
granted under the Plan. Fractional Options shall be rounded down to the nearest
whole share number.
(f) Method of Exercising Options. Options shall be exercised by written
notice to the Company, addressed to the Company at its principal place of
business. Such notice shall state the election to exercise the option and the
number of shares with respect to which it is being exercised, and shall be
signed by the person exercising the option. Such notice shall be accompanied by
payment in full of the exercise price for the number of Shares being purchased.
Payment may be made in cash or by bank cashier's check or by tendering duly
endorsed certificates for shares of the Company's Common Stock then owned by the
optionholder. The Company shall deliver a certificate or certificates
representing the Option Shares to the purchaser as soon as practicable after
payment for those Shares has been received. If an Option is exercised by any
person other than the optionholder, such notice shall be accompanied by
appropriate proof of the right of such person to exercise the Option. All Shares
that are purchased and paid for in full upon the exercise of an Option shall be
fully paid and non-assessable. The Board may determine that payment upon the
exercise of an Option may be made with Shares owned by the Key Employee having a
fair market value on the exercise date equivalent to the amount of payment, or
any combination of cash and such Shares equal to such amount.
(g) No Rights of a Shareholder. An optionholder shall have no rights as a
shareholder with respect to shares covered by an Option. No adjustment will be
made for cash dividends for which the record date is prior
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<PAGE> 8
to the date a stock certificate is issued upon exercise of an Option. Upon such
exercise of an Option, the holder of the Shares of Common Stock so received
shall have all the rights of a shareholder of the Company as of the date of
issuance.
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5. TERMINATION OF EMPLOYMENT; ASSIGNABILITY; DEATH
(a) Termination of Employment. If any optionholder ceases to be an employee
of the Company other than for Retirement (as such is defined in Section 5(b)),
death, disability or discharge for cause, such holder (or his successors in the
case of the holder's death after the termination of employment) may, within
three months after the date of termination, but in no event after the stated
expiration date, purchase some or all of the Shares with respect to which such
optionholder was entitled to exercise such Option on the date employment
terminated; provided, that (i) if the holder's employment is terminated for
dishonesty or other acts detrimental to the Company's interests or for the
holder's breach of any employment, confidentiality or other contract or
agreement with the Company, or (ii) if after employment is terminated, the
holder commits acts detrimental to the Company's interests, then the Option
shall thereafter be void for all purposes.
(b) Retirement. If any optionholder (i) ceases to be an employee of the
Company other than by reason of death, disability or discharge for cause; and
(ii) has been continuously employed by the Company for five or more years; and
is (iii) over fifty-nine and one-half (59-1/2) years of age (collectively
referred to as "Retirement"), all of the options which have been granted to such
optionholder prior to Retirement shall vest thirty (30) days after Retirement
(the "Vested Options"). Such holder (or his successors in the case of the
holder's death after Retirement) may, within three months after the date of
Retirement or prior to the stated expiration date, whichever first occurs,
purchase some or all of the Shares which such optionholder was entitled to
exercise; provided, that (i) if the holder's employment is terminated for
dishonesty or other acts detrimental to the Company's interests or for the
holder's breach of any employment, confidentiality or other contract or
agreement with the Company, or (ii) if after employment is terminated, the
holder commits acts detrimental to the Company's interests, then the Option
shall thereafter be void for all purposes.
(c) Assignability. No Option or the privileges conferred thereby shall be
assignable or transferable by a holder other than by will or the laws of descent
and distribution.
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<PAGE> 10
(d) Disability. If the optionholder is removed as an employee due to
disability, the optionholder may exercise the Options, in whole or in part, to
the extent they were exercisable on the date when the optionholder's employment
terminated, at any time prior to the expiration date of the Options or within
one year of the date of removal, whichever is earlier.
(e) Discharge for Cause. If an optionholder is removed as an employee of the
Company for cause, the Options shall terminate upon receipt by the optionholder
of a notice of such removal or on the effective date of the removal, whichever
is earlier. The Board shall have the right to determine whether the optionholder
has been discharged for cause for purposes of the Plan and the date of such
discharge.
(f) Death of Holder. If optionholder dies while serving as an employee, an
Option shall be exercisable until the stated expiration date thereof by the
person or persons ("successors") to whom the holder's rights pass under will or
by the laws of descent and distribution, but only to the extent that the holder
was entitled to exercise the Option at the date of death. An Option may be
exercised (and payment of the option price made in full) by the successors only
after written notice to the Company, specifying the number of shares to be
purchased. Such notice shall comply with the provisions of Section 4(e).
6. CERTAIN ADJUSTMENTS
(a) Capital Adjustments. Except as limited by Section 422 of the Code, the
aggregate number of Shares subject to the Plan, the number of Shares covered by
outstanding Options, and the price per share stated in such Options shall be
proportionately adjusted for any increase or decrease in the number of
outstanding Shares of Common Stock of the Company resulting from a subdivision
or consolidation of shares or any other capital adjustment or the payment of a
stock dividend or any other increase or decrease in the number of such shares
effected without receipt by the Company of consideration therefor in money,
services or property.
(b) Mergers, Etc. Except as limited by the provisions of Section 422 of the
Code, if the Company is the surviving corporation in any merger or
consolidation, any Option granted under the Plan shall pertain to and
-10-
<PAGE> 11
apply to the securities to which a holder of the number of Shares subject to the
Option would have been entitled. A dissolution or liquidation of the Company
shall cause every Option outstanding hereunder to terminate, unless specifically
provided otherwise by the Board. A merger or consolidation in which the Company
is not the surviving corporation shall also cause every Option outstanding
hereunder to terminate, unless specifically provided otherwise by the Board, but
each holder shall have the right immediately prior to a merger or consolidation
in which the Company is not the surviving corporation, to exercise such Option
in whole or in part without regard to whether such Options have vested.
7. COMPLIANCE WITH LEGAL REQUIREMENTS
(a) For Investment Only. If, at the time of exercise of this option, there is
not in effect as to the Option Shares being purchased a registration statement
under the Securities Act of 1933, as amended (or any successor statute)
(collectively the "1933 Act"), then the exercise of this option shall be
effective only upon receipt by the Company from the Key Employee (or his legal
representatives or heirs) of a written representation that the Option Shares are
being purchased for investment and not for distribution.
(b) Registration Statement Preparation. The Key Employee hereby agrees to
supply the Company with such information and to cooperate with the Company, as
the Company may reasonably request, in connection with the preparation and
filing of the registration statements and amendments thereto under the
Securities Act of 1933 and applicable state statutes and regulations applicable
to the Option Shares. The Company shall not be liable for failure to issue any
such Option Shares where such opinion of counsel cannot be obtained within the
period specified for the exercise of the option, or where such registration is
required in the opinion of counsel. If shares of Common Stock of the Company
are, at the time of the exercise of this option, listed upon a securities
exchange, the exercise of this option shall be contingent upon completion of the
necessary steps to list the Option Shares being purchased upon such securities
exchange.
(c) Additional Restrictions on Option Exercise. Key Employee may only
exercise Options during the period commencing three days following the release
for publication of quarterly or annual financial
-11-
<PAGE> 12
information regarding the Company and ending two weeks prior to the end of the
then current fiscal quarter of the Company (the "Release Period").
A "release for publication" shall be deemed to be satisfied if the
specified financial data appears:
(1) On a wire service;
(2) A financial news service;
(3) In a newspaper of general circulation; or
(4) Is otherwise made publicly available.
Notwithstanding any provision to the contrary contained herein, a Key
Employee may exercise Options only so long as such exercise does not violate the
law or any rule or regulation adopted by the appropriate governmental authority.
8. MISCELLANEOUS
(a) No Funding. This Plan shall be unfunded. The Company shall not be
required to establish any special or separate fund or to make any other
segregation of assets to assure any payment under the Plan.
(b) New Mexico Law. The Plan and the Options shall be governed by the laws of
the State of New Mexico.
(c) Modification of Grant, Vesting Date. Should April 1 in any given year
fall on a day on which trading in the Shares is closed, the action which would
have taken place on April 1 shall be delayed until the first day after April 1
that trading in the Shares commences.
-12-
<PAGE> 13
(d) Withholding of Taxes. The Company shall have the right to deduct from any
other compensation of the Grantee any federal, state or local income taxes
(including FICA) required by law to be withheld with respect to the granting or
exercise of any Options.
DATED as of the 23rd day of April, 1996 and effective as of June 28, 1995.
MESA AIR GROUP, INC.
By: /s/ W. STEPHEN JACKSON
--------------------------
W. Stephen Jackson
Chief Financial Officer
ATTESTED BY:
By: /s/ GARY E. RISLEY
------------------------
Secretary
-13-
<PAGE> 14
SCHEDULE "A"
Larry L. Risley, Chief Executive Officer
Clark Stephens, Chief Operating Officer
W. Stephen Jackson, Chief Financial Officer
Gary E. Risley, Chief Legal Officer
<PAGE> 15
SCHEDULE "B"
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------
APRIL 1, 1996 AND
JUNE 28, 1995 1997
POSITION OPTION AMOUNTS OPTION AMOUNTS
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C>
MESA AIR GROUP, INC.:
Chief Executive Officer 300,000 150,000
Chief Operating Officer 160,000 80,000
Chief Financial Officer 100,000 50,000
Chief Legal Officer 100,000 50,000
</TABLE>
<PAGE> 16
SCHEDULE "C"
- --------------------------------------------------------------------------------
KEY EMPLOYEE POSITIONS
- --------------------------------------------------------------------------------
MESA AIR GROUP, INC.:
Chief Executive Officer
Chief Operating Officer
Chief Financial Officer
Chief Legal Officer
Vice President Airline Operations
Vice President Safety
Vice President Maintenance
Vice President Planning/Pricing
Vice President Corporate Communications
Corporate Controller
Director, Information Systems
Tax Manager
Director, Corporate Accounting
Director, Revenue Accounting (Vacant)
Corporate Accountant
Special Projects Manager
Manager, Planning/Pricing
<PAGE> 17
(GREATER THAN) $150 MILLION DIVISION/SUBSIDIARY:
President
Vice President
Controller
$100 MILLION DIVISION/SUBSIDIARY:
President
Vice President
Controller
(LESS THAN) $100 MILLION DIVISION/SUBSIDIARY:
President
Vice President
Controller
<PAGE> 1
Exhibit 4.2
MESA AIR GROUP, INC.
NON-QUALIFIED STOCK OPTION
ISSUED UNDER MESA AIR GROUP, INC.
RESTATED AND AMENDED EMPLOYEE STOCK OPTION PLAN
1. GRANT OF OPTION. Mesa Air Group, Inc., a New Mexico corporation and its
subsidiaries (the "Company"), subject to the terms and conditions of this
instrument and to the terms and conditions of the Mesa Air Group, Inc. Restated
and Amended Employee Stock Option Plan (the "Plan"), a copy of which the
Grantee hereby acknowledges receiving, grants to ______________________________
(the "Grantee") an option to purchase from the Company an aggregate of ________
shares of the Company's common stock, no par value per share (the "Option
Shares"), at a price of $____ per share. This Option is not to be treated as
an incentive stock option under Section 422 of the Internal Revenue Code of
1986.
2. SUBJECT TO SHAREHOLDER APPROVAL. The Option Shares have been issued
pursuant to the terms and conditions of the Plan. The Plan requires approval by
a majority of the securities of the Company which are present or represented and
entitled to vote ("Majority Approval") at a meeting duly held in accordance with
the laws of the State of New Mexico. If Majority Approval is not obtained by
December 1, 1996, the Option Shares shall be revoked and declared null and void.
3. EXPIRATION OF OPTION. This Option is granted on that date determined
pursuant to the terms of the formula established by the Plan (the "Grant Date").
Unless exercised or terminated earlier in accordance with the provisions hereof,
this option will expire at 5:00 p.m. local time on the day preceding the tenth
anniversary of the Grant Date.
4. WHEN OPTION EXERCISABLE. Other than in the event of Retirement as such
term is defined by the Plan, this Option shall vest and become exercisable
according to the following schedule (the "Vesting Dates"):
(a) On ______________, [or on the day after Majority Approval, whichever is
later,] one-third of the Option Shares;
<PAGE> 2
(b) On _____________, one-third of the Option Shares; and
(c) On _____________, one-third of the Option Shares.
Grantee may exercise this Option at any time on or after the Vesting Dates
set forth above but prior to the expiration pursuant to Paragraph 3 or
termination pursuant to Paragraph 7 of this Option.
5. CONTINUOUS SERVICE A REQUISITE. Except as otherwise specifically
provided in this paragraph, this Option may not be exercised unless the Grantee
is an employee of the Company continuously from the Grant Date to the date of
exercise. If the Grantee is removed or resigns from the employ of the Company
other than for death, disability, Retirement or discharge for cause, the Grantee
may exercise this Option, in whole or in part, to the extent it was exercisable
on the date when the Grantee terminated his employment with the Company, at any
time prior to the expiration date of the Option or within three months of the
date of termination of his employment with the Company, whichever is earlier;
provided that (i) if the Grantee's employment is terminated for dishonesty or
other acts detrimental to the Company's interests, or (ii) if after employment
is terminated, Grantee commits acts detrimental to the Company's interests, then
the Option shall thereafter be void for all purposes.
If the employment of the Grantee is terminated due to disability, as
determined by the Company, the Grantee may exercise this Option, in whole or in
part, to the extent it was exercisable on the date when the Grantee's employment
terminated, at any time prior to the expiration date of the Option or within one
year of the date of termination of employment, whichever is earlier. A Grantee
who is absent from work because of disability or such other reason as the Board
of Directors may specifically approve, shall not cease to be an employee for
purpose of the Plan on account of such absence, except as the Board of Directors
shall otherwise determine.
If the employment of the Grantee terminates due to Retirement, as such term
is defined in the Plan, the Option Shares shall automatically vest in full and
the Grantee may exercise all of the Option Shares at any time
-2-
<PAGE> 3
prior to the expiration date of the Option or within two years of the date of
termination of employment, whichever is earlier.
If the Grantee is removed from the employ of the Company due to discharge
for cause, as determined by the Company, this Option shall terminate upon
receipt by the Grantee of notice of such removal or the effective date of the
removal, whichever is earlier.
If employment of Grantee is terminated by reason of death of the Grantee,
the person or persons to whom the Grantee's rights under the option pass by will
or by applicable laws of descent and distribution may exercise the option, in
whole or in part, to the extent it was exercisable on the date when the
Grantee's employment terminated, at any time prior to the expiration date of the
Option or within one year after the date of the death of the Grantee, whichever
is earlier. The person or persons to whom the Grantee's rights under the Option
pass shall be considered the Grantee.
6. OPTION NOT ASSIGNABLE. This Option shall only be transferable by will or
the laws of descent and distribution, or pursuant to a qualified domestic
relations order as defined by the Internal Revenue Code of 1986, as amended, or
Title I of the Employee Retirement Income Security Act or the rules thereunder.
It may be exercised, during the life of the Grantee, only by the Grantee, and
may not be pledged or hypothecated in any way. Additionally, it shall not be
subject to execution, attachment or similar process.
7. TERMINATION OF OPTION. This Option shall terminate and all rights of the
Grantee shall cease at the earliest of the following:
(a) 5:00 p.m., local time, of the day before the end of the three month
period following the termination of Grantee's employment with the
Company for any reason other than death, disability, Retirement or
discharge for cause;
(b) 5:00 p.m., local time, of the day before the end of the two year
period following the termination of the Grantee's employment with
the Company due to Retirement;
-3-
<PAGE> 4
(c) 5:00 p.m., local time, of the day before the end of the one year
period following the termination of the Grantee's employment with
the Company due to disability;
(d) The earlier of 5:00 p.m., local time, of the effective date of the
Grantee's termination of employment with the Company for cause or
receipt by the Grantee of notice of termination for cause;
(e) 5:00 p.m., local time, on the day before the end of the one year
period following the Grantee's death if the Grantee's employment
with the Company is terminated by reason of death; and
(f) Expiration of this Option as provided in paragraph 3.
8. EXERCISE OF OPTION. This Option may be exercised by presenting a written
notice to the Company that the Option is being exercised. Such notice shall
identify this Option, state the number of Option Shares exercised, and shall be
signed by the Grantee. Payment in full for the Option Shares to be purchased
shall accompany the notice of exercise. Such payment shall be by bank cashier's
check or certified check or with shares of the Company already owned by the
Grantee having a fair market value on the date of exercise equivalent to the
amount that would otherwise be payable, or any combination of cash and such
shares equivalent to such amount. Any representation required by paragraph 11
shall also accompany the notice of exercise.
The fair market value of a share of the Company on any particular date
shall mean fair market value as determined under Section 3(d) of the Plan. If
the Grantee is deceased, or if the Grantee is disabled, the notice of exercise
may be signed by the Grantee's legal representatives or heirs, and shall be
accompanied by evidence satisfactory to the Company of the right of such person
or persons to exercise this Option. The Grantee shall have none of the rights of
a shareholder with respect to any of the Option Shares until the Option Shares
are actually issued.
-4-
<PAGE> 5
9. RECAPITALIZATION, REORGANIZATION, DISSOLUTION. This Option shall not
affect in any way the right or power of the Company or its shareholders to make
or authorize any merger, consolidation, recapitalization, reorganization or
dissolution of the Company or any other corporate act or proceeding whether of a
similar character or otherwise. In the event of any change in the Option Shares
through reorganization, recapitalization, stock split, stock dividend,
continuation of shares, merger, consolidation, rights offering, or any other
change in the corporate structure, appropriate adjustments shall be made by the
Board in the number and kind of shares and the price per share subject to this
Option. The determination of the Board on whether any adjustment is required and
the extent and nature of any such adjustment shall be final and binding upon all
persons. Upon a determination by the Board of any adjustment in the number of
Option Shares or of the option price, this Option shall be amended in accordance
with the action of the Board.
10. SERVICE MAY BE TERMINATED. The granting of this Option shall not confer
upon the Grantee any right to continue as an employee of the Company and shall
not interfere in any way with the right of the Company to terminate the
employment of Grantee.
11. COMPLIANCE WITH LEGAL REQUIREMENTS. If, at the time of exercise of this
Option, there is not in effect as to the Option Shares being purchased a
registration statement under the Securities Act of 1933, as amended (or any
successor statute) (collectively the "1933 Act"), then the exercise of this
Option shall be effective only upon receipt by the Company from the Grantee (or
his legal representatives or heirs) of a written representation that the Option
Shares are being purchased for investment and not for distribution.
The Company may request an opinion of its counsel as to whether
registration of the Option Shares being purchased is required under the 1933 Act
or under applicable state statutes or regulations. If counsel is of the opinion
that such registration is not required, the Company shall issue the Option
Shares. If counsel is of the opinion that such registration is required, the
Company shall not be required to issue the Option Shares until they have been so
registered, but the Company shall be under no obligation to register the Option
Shares.
-5-
<PAGE> 6
The Grantee hereby agrees to supply the Company with such information and
to cooperate with the Company, as the Company may reasonably request, in
connection with the preparation and filing of the registration statements and
amendments thereto under the 1933 Act and applicable state statutes and
regulations applicable to the Option Shares. The Company shall not be liable for
failure to issue any such Option Shares where such opinion of counsel cannot be
obtained within the period specified for the exercise of the Option, or where
such registration is required in the opinion of counsel. If shares of Common
Stock of the Company are, at the time of the exercise of this Option, listed
upon a securities exchange, the exercise of this Option shall be contingent upon
completion of the necessary steps to list the Option Shares being purchased upon
such securities exchange.
[Furthermore, this Option may only be exercised during the period beginning
three days following the release for publication of quarterly or annual
financial information regarding the Company and ending two weeks prior to the
end of the then current fiscal quarter of the Company.]
12. ADDITIONAL POWERS OF THE BOARD. The Board may construe this Option and
correct any defect, supply any omission or reconcile any inconsistency in this
instrument or in the Plan as the Board may deem appropriate. The Board shall
determine any dispute that may arise under this Option. All decisions of the
Board under this or any other provision of this Option and under the Plan shall
be binding and conclusive on the Grantee, his or her spouse, legal
representatives and heirs.
13. GOVERNING LAW. This instrument shall be governed by the laws of the
State of New Mexico.
IN WITNESS WHEREOF, the Company has caused this Option to be executed by a
duly authorized officer and its corporate seal to be affixed effective as of the
Grant Date set forth in paragraph 3.
MESA AIR GROUP, INC.
-6-
<PAGE> 7
By:
------------------------------
Its:
------------------------------
I hereby acknowledge that I have received a copy of Mesa Air Group, Inc.
Restated and Amended Employee Stock Option Plan.
-----------------------------
Grantee
-7-
<PAGE> 1
EXHIBIT 4.3
MESA AIR GROUP, INC.
QUALIFIED STOCK OPTION
ISSUED UNDER MESA AIR GROUP, INC.
RESTATED AND AMENDED EMPLOYEE STOCK OPTION PLAN
1. GRANT OF OPTION. Mesa Air Group, Inc., a New Mexico corporation and its
subsidiaries (the "Company"), subject to the terms and conditions of this
instrument and to the terms and conditions of the Mesa Air Group, Inc. Restated
and Amended Employee Stock Option Plan (the "Plan"), a copy of which the Grantee
hereby acknowledges receiving, grants to ______________________________ (the
"Grantee") an option to purchase from the Company an aggregate of ________
shares of the Company's common stock, no par value per share (the "Option
Shares"), at a price of $_____ per share. This Option is to be treated as an
incentive stock option under Section 422 of the Internal Revenue Code of 1986
and the terms of the Plan related to qualified stock options shall apply.
2. SUBJECT TO SHAREHOLDER APPROVAL. The Option Shares have been issued
pursuant to the terms and conditions of the Plan. The Plan requires approval by
a majority of the securities of the Company which are present or represented and
entitled to vote ("Majority Approval") at a meeting duly held in accordance with
the laws of the State of New Mexico. If Majority Approval is not obtained by
December 1, 1996, the Option Shares shall be revoked and declared null and void.
3. EXPIRATION OF OPTION. This Option is granted on that date determined
pursuant to the terms of the formula established by the Plan (the "Grant Date").
Unless exercised or terminated earlier in accordance with the provisions hereof,
this option will expire at 5:00 p.m. local time on the day preceding the tenth
anniversary of the Grant Date.
4. WHEN OPTION EXERCISABLE. This Option shall vest and become exercisable
according to the following schedule (the "Vesting Dates"):
(a) On , or on the day after Majority Approval, whichever
is later, one-third of the Option Shares;
<PAGE> 2
(b) On _____________, one-third of the Option Shares; and
(c) On _____________, one-third of the Option Shares.
Grantee may exercise this Option at any time on or after the Vesting
Dates set forth above but prior to the expiration pursuant to Paragraph 3 or
termination pursuant to Paragraph 7 of this Option.
5. CONTINUOUS SERVICE A REQUISITE. Except as otherwise specifically
provided in this paragraph, this Option may not be exercised unless the Grantee
is an employee of the Company continuously from the Grant Date to the date of
exercise. If the Grantee is removed or resigns from the employ of the Company
other than for death, disability, or discharge for cause, the Grantee may
exercise this Option, in whole or in part, to the extent it was exercisable on
the date when the Grantee terminated his employment with the Company, at any
time prior to the expiration date of the Option or within three months of the
date of termination of his employment with the Company, whichever is earlier;
provided that (i) if the Grantee's employment is terminated for dishonesty or
other acts detrimental to the Company's interests, or (ii) if after employment
is terminated, Grantee commits acts detrimental to the Company's interests, then
the Option shall thereafter be void for all purposes.
If the employment of the Grantee is terminated due to disability, as
determined by the Company, the Grantee may exercise this Option, in whole or in
part, to the extent it was exercisable on the date when the Grantee's employment
terminated, at any time prior to the expiration date of the Option or within one
year of the date of termination of employment, whichever is earlier. A Grantee
who is absent from work because of disability or such other reason as the Board
of Directors may specifically approve, shall not cease to be an employee for
purpose of the Plan on account of such absence, except as the Board of Directors
shall otherwise determine.
If the Grantee is removed from the employ of the Company due to
discharge for cause, as determined by the Company, this Option shall terminate
upon receipt by the Grantee of notice of such removal or the effective date of
the removal, whichever is earlier.
-2-
<PAGE> 3
If employment of Grantee is terminated by reason of death of the
Grantee, the person or persons to whom the Grantee's rights under the option
pass by will or by applicable laws of descent and distribution may exercise the
option, in whole or in part, to the extent it was exercisable on the date when
the Grantee's employment terminated, at any time prior to the expiration date of
the Option or within one year after the date of the death of the Grantee,
whichever is earlier. The person or persons to whom the Grantee's rights under
the Option pass shall be considered the Grantee.
6. OPTION NOT ASSIGNABLE. This Option shall only be transferable by will
or the laws of descent and distribution, or pursuant to a qualified domestic
relations order as defined by the Internal Revenue Code of 1986, as amended, or
Title I of the Employee Retirement Income Security Act or the rules thereunder.
It may be exercised, during the life of the Grantee, only by the Grantee, and
may not be pledged or hypothecated in any way. Additionally, it shall not be
subject to execution, attachment or similar process.
7. TERMINATION OF OPTION. This Option shall terminate and all rights of
the Grantee shall cease at the earliest of the following:
(a) 5:00 p.m., local time, of the day before the end of the three
month period following the termination of Grantee's employment
with the Company for any reason other than death, disability,
Retirement or discharge for cause;
(b) 5:00 p.m., local time, of the day before the end of the one year
period following the termination of the Grantee's employment with
the Company due to disability;
(c) The earlier of 5:00 p.m., local time, of the effective date of
the Grantee's termination of employment with the Company for
cause or receipt by the Grantee of notice of termination for
cause;
(d) 5:00 p.m., local time, on the day before the end of the one year
period following the Grantee's death if the
-3-
<PAGE> 4
Grantee's employment with the Company is terminated by reason of
death; and
(e) Expiration of this Option as provided in paragraph 3.
8. EXERCISE OF OPTION. This Option may be exercised by presenting a written
notice to the Company that the Option is being exercised. Such notice shall
identify this Option, state the number of Option Shares exercised, and shall be
signed by the Grantee. Payment in full for the Option Shares to be purchased
shall accompany the notice of exercise. Such payment shall be by bank cashier's
check or certified check or with shares of the Company already owned by the
Grantee having a fair market value on the date of exercise equivalent to the
amount that would otherwise be payable, or any combination of cash and such
shares equivalent to such amount. Any representation required by paragraph 11
shall also accompany the notice of exercise.
The fair market value of a share of the Company on any particular date
shall mean fair market value as determined under Section 3(d)(i) of the Plan. If
the Grantee is deceased, or if the Grantee is disabled, the notice of exercise
may be signed by the Grantee's legal representatives or heirs, and shall be
accompanied by evidence satisfactory to the Company of the right of such person
or persons to exercise this Option. The Grantee shall have none of the rights of
a shareholder with respect to any of the Option Shares until the Option Shares
are actually issued.
9. RECAPITALIZATION, REORGANIZATION, DISSOLUTION. This Option shall not
affect in any way the right or power of the Company or its shareholders to make
or authorize any merger, consolidation, recapitalization, reorganization or
dissolution of the Company or any other corporate act or proceeding whether of a
similar character or otherwise. In the event of any change in the Option Shares
through reorganization, recapitalization, stock split, stock dividend,
continuation of shares, merger, consolidation, rights offering, or any other
change in the corporate structure, appropriate adjustments shall be made by the
Board in the number and kind of shares and the price per share subject to this
Option. The determination of the Board on whether any adjustment is required and
the extent and nature of any such adjustment shall be final and binding upon all
persons. Upon a
-4-
<PAGE> 5
determination by the Board of any adjustment in the number of Option Shares or
of the option price, this Option shall be amended in accordance with the action
of the Board.
10. SERVICE MAY BE TERMINATED. The granting of this Option shall not confer
upon the Grantee any right to continue as an employee of the Company and shall
not interfere in any way with the right of the Company to terminate the
employment of Grantee.
11. COMPLIANCE WITH LEGAL REQUIREMENTS. If, at the time of exercise of this
Option, there is not in effect as to the Option Shares being purchased a
registration statement under the Securities Act of 1933, as amended (or any
successor statute) (collectively the "1933 Act"), then the exercise of this
Option shall be effective only upon receipt by the Company from the Grantee (or
his legal representatives or heirs) of a written representation that the Option
Shares are being purchased for investment and not for distribution.
The Company may request an opinion of its counsel as to whether
registration of the Option Shares being purchased is required under the 1933 Act
or under applicable state statutes or regulations. If counsel is of the opinion
that such registration is not required, the Company shall issue the Option
Shares. If counsel is of the opinion that such registration is required, the
Company shall not be required to issue the Option Shares until they have been so
registered, but the Company shall be under no obligation to register the Option
Shares.
The Grantee hereby agrees to supply the Company with such information and
to cooperate with the Company, as the Company may reasonably request, in
connection with the preparation and filing of the registration statements and
amendments thereto under the 1933 Act and applicable state statutes and
regulations applicable to the Option Shares. The Company shall not be liable for
failure to issue any such Option Shares where such opinion of counsel cannot be
obtained within the period specified for the exercise of the Option, or where
such registration is required in the opinion of counsel. If shares of Common
Stock of the Company are, at the time of the exercise of this Option, listed
upon a securities exchange, the exercise of this Option shall be contingent upon
-5-
<PAGE> 6
completion of the necessary steps to list the Option Shares being purchased upon
such securities exchange.
[Furthermore, this Option may only be exercised during the period beginning
three days following the release for publication of quarterly or annual
financial information regarding the Company and ending two weeks prior to the
end of the then current fiscal quarter of the Company.]
12. ADDITIONAL POWERS OF THE BOARD. The Board may construe this Option and
correct any defect, supply any omission or reconcile any inconsistency in this
instrument or in the Plan as the Board may deem appropriate. The Board shall
determine any dispute that may arise under this Option. All decisions of the
Board under this or any other provision of this Option and under the Plan shall
be binding and conclusive on the Grantee, his or her spouse, legal
representatives and heirs.
13. GOVERNING LAW. This instrument shall be governed by the laws of the
State of New Mexico.
IN WITNESS WHEREOF, the Company has caused this Option to be executed by a
duly authorized officer and its corporate seal to be affixed effective as of the
Grant Date set forth in paragraph 3.
MESA AIR GROUP, INC.
By:
--------------------------------
Its:
-------------------------------
-6-
<PAGE> 7
NOTICE TO GRANTEE: This Option is intended to be an "incentive stock option"
under Section 422 of the Internal Revenue Code of 1986, as amended, and exempt
from Section 16(b) of the Securities Exchange Act of 1934, as amended, pursuant
to Rule 16b-3 as promulgated thereunder. Both Section 422 and Rule 16b-3 impose
various requirements, including holding periods with respect to the Option and
the Option Shares, for the qualification thereunder. The Corporation makes no
representation or warranty that the Option will qualify under either authority
of that the applicable holding periods will be satisfied by Grantee under the
terms hereof. GRANTEE IS URGED TO SEEK INDEPENDENT ADVICE WITH RESPECT TO THE
CONSEQUENCES OF AND THE DUTIES IMPOSED UPON GRANTEE RELATED TO THE GRANT,
ISSUANCE, EXERCISE AND DISPOSITION OF THIS OPTION AND THE OPTION SHARES.
I hereby acknowledge that I have received a copy of Mesa Air Group, Inc.
Restated and Amended Stock Option Plan.
--------------------------------
Grantee
<PAGE> 1
EXHIBIT 5
April 24, 1996
Board of Directors
Mesa Air Group, Inc.
2325 East 30th Street
Farmington, New Mexico 87401
Re: Registration Statement on Form S-8
Gentlemen:
In connection with the registration by Mesa Air Group, Inc. (the
"Company") on form S-8 (the "Registration Statement"), providing for the
registration under the Securities Act of 1933, as amended, of 2,800,000 shares
of the company's Common Stock, no par value, we are furnishing the following
opinion as counsel to the Company.
We have examined such corporate records, certificates of public
officials and officers of the Company, and other documents and records as we
have considered necessary or proper for the purpose of this Opinion.
Based upon the foregoing, and having regard to legal considerations
that we deem relevant, we are of the opinion that the foregoing shares of Common
Stock of the Company, when issued and sold in accordance with the terms of the
transactions described in the Registration Statement, and in accordance with
the securities laws of the various states in which the Common Stock may be
issued, will be validly issued, fully paid and nonassessable.
As counsel to the company, we hereby consent to the reference to this
firm under the caption "Legal Matters" contained in the Prospectus dated April
24, 1996, and to the filing of this opinion as Exhibit 5 to the Registration
Statement.
Very truly yours,
CHAPMAN AND CUTLER
<PAGE> 1
EXHIBIT 24.2
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Mesa Air Group, Inc.:
We consent to the use of our report incorporated herein by reference
and to the reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG Peat Marwick LLP
-----------------------------
KPMG PEAT MARWICK LLP
Phoenix, Arizona
April 19, 1996
