1
As filed with the Securities and Exchange Commission on June 12, 1995
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
--------------------
SKYWEST, INC.
(Exact name of registrant as specified in its charter)
UTAH 87-0292166
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
--------------------
444 South River Road
St. George, Utah 84770
(Address of Principal Executive Offices,
including Zip Code)
SKYWEST, INC.
1995 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
BRADFORD R. RICH Copy to:
Executive Vice President and RICHARD G. BROWN
Chief Financial Officer Kimball, Parr, Waddoups, Brown & Gee
Skywest, Inc. 185 South State Street, Suite 1300
444 South River Road Salt Lake City, Utah 84111
St. George, Utah 84770 (801) 532-7840
(801) 634-3000
(Name, address and telephone
number, including area code,
of agent for service)
--------------------
CALCULATION OF REGISTRATION FEE
==========================================================================================================
Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Title of Securities to be Amount to be Price per Offering Registration
Registered Registered Share(1) Price(1) Fee(1)
- ----------------------------------------------------------------------------------------------------------
Common Shares, no par value . . . 500,000 shares $16.63 $8,315,000 $2,867.25
==========================================================================================================
(1) Pursuant to Rules 457(h)(1) and 457(c), the offering price per share,
aggregate offering price and registration fee are computed on the basis
of the average of the high and low sales prices as reported on the
NASDAQ Stock Market (National Market System) on June 6, 1995.
===============================================================================
2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Plan Annual Information.*
* Information required by Part I to be contained in the Section
10(a) prospectus is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act of 1933, as
amended (the "Securities Act"), and the Note to Part I of Form
S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by SkyWest, Inc. (the "Registrant") with
the Securities and Exchange Commission are hereby incorporated by reference in
this Registration Statement:
(1) The Registrant's Annual Report on Form 10-K (File No. 0-14719) for
the fiscal year ended March 31, 1994, which contains, among other things, the
consolidated financial statements of the Registrant for the three-year period
ended March 31, 1994, together with the report thereon of Arthur Andersen LLP,
independent public accountants.
(2) The Registrant's Quarterly Reports on Form 10-Q (File No. 0-14719)
for the quarters ended June 30, September 30 and December 31, 1994.
(3) The Registrant's Current Report on Form 10-C (File No. 0-14719)
dated effective as of November 29, 1994.
(4) The Registrant's Current Report on Form 10-C (File No. 0-14719)
dated effective as of February 1, 1995.
(5) The description of the Registrant's Common Stock, no par value,
contained in the Registrant's Registration Statement on Form 8-A filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), which
description is included under the heading "Description of Capital Stock" on
pages 21 of the Registrant's prospectus dated June 26, 1986 contained in
Amendment No. 2 to the Registrant's Registration Statement on Form S-1
(Registration No. 33-5823), including any amendment or report filed under the
Exchange Act for the purpose of updating such description.
In addition, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents.
The financial statements and schedules of the Company included in the
Company's Annual Report on Form 10-K for the fiscal year ended March 31, 1994
incorporated by reference in the Prospectus and elsewhere in the related
Registration Statement on Form S-8, have been audited by Arthur Andersen LLP,
independent public
2
3
accountants, as indicated in their report with respect thereto, and are included
therein in reliance upon the authority of said firm as experts in giving said
reports.
Future financial statements of the Company and the reports thereon of
Arthur Andersen LLP also will be incorporated by reference in the Prospectus in
reliance upon the authority of that firm as experts in giving those reports;
provided, however, only to the extent that the firm has audited those financial
statements and consented to the use of their reports thereon.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 16-10a-902 ("Section 902") of the Utah Revised Business
Corporation Act (the "Revised Act") provides that a corporation may indemnify
any individual who was, is, or is threatened to be made a named defendant or
respondent (a "Party") in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative and whether
formal or informal (a "Proceeding"), because he is or was a director of the
corporation or is or was serving at its request as a director, officer, partner,
trustee, employee, fiduciary or agent of another corporation or other person or
of an employee benefit plan (an "Indemnified Director"), against any obligation
incurred with respect to a Proceeding, including any judgment, settlement,
penalty, fine or reasonable expenses (including attorneys' fees), incurred in
the Proceeding if his conduct was in good faith, he reasonably believed that his
conduct was in, or not opposed to, the best interests of the corporation, and,
in the case of any criminal Proceeding, he had no reasonable cause to believe
his conduct was unlawful; except that (i) indemnification under Section 902 in
connection with a Proceeding by or in the right of the corporation is limited to
payment of reasonable expenses (including attorneys' fees) incurred in
connection with the Proceeding and (ii) the corporation may not indemnify a
director in connection with a Proceeding by or in the right of the corporation
in which the director was adjudged liable to the corporation, or in connection
with any other Proceeding charging that the director derived an improper
personal benefit, whether or not involving action in his official capacity, in
which Proceeding he was adjudged liable on the basis that he derived an improper
personal benefit.
Section 16-10a-906 of the Revised Act provides that a corporation may
not indemnify a director under Section 902 unless authorized and a determination
has been made (by the board of directors, a committee of the board of directors
or by the stockholders) that indemnification of the director is permissible in
the circumstances because the director has met the applicable standard of
conduct set forth in Section 902.
Section 16-10a-903 ("Section 903") of the Revised Act provides that,
unless limited by its articles of incorporation, a corporation shall indemnify a
director who was successful, on the merits or otherwise, in the defense of any
Proceeding, or in the defense of any claim, issue or matter in the Proceeding,
to which he was a Party because he is or was a director of the corporation,
against reasonable expenses (including attorneys' fees) incurred by him in
connection with the Proceeding or claim.
In addition to the indemnification provided by Sections 902 and 903,
Section 16-10a-905 ("Section 905") of the Revised Act provides that, unless
otherwise limited by a corporation's articles of incorporation, a director may
apply for indemnification to the court conducting the Proceeding or to another
court of competent jurisdiction. On receipt of an application and after giving
any notice the court considers necessary, (i) the court may order mandatory
indemnification under Section 903, in which case the court shall also order the
corporation to pay the
3
4
director's reasonable expenses to obtain court-ordered indemnification, or (ii)
upon the court's determination that the director is fairly and reasonably
entitled to indemnification in view of all the relevant circumstances and
regardless of whether the director met the applicable standard of conduct set
forth in Section 902, the court may order indemnification as the court
determines to be proper, except that indemnification with respect to certain
Proceedings resulting in a director being found liable for certain actions
against the corporation may be limited to reasonable expenses (including
attorneys' fees) incurred by the director.
Section 16-10a-904 ("Section 904") of the Revised Act provides that a
corporation may pay for or reimburse the reasonable expenses (including
attorneys' fees) incurred by a director who is a Party to a Proceeding in
advance of the final disposition of the Proceeding if (i) the director furnishes
the corporation a written affirmation of his good faith belief that he has met
the applicable standard of conduct described in Section 902, (ii) the director
furnishes to the corporation a written undertaking, executed personally or in
his behalf, to repay the advance if it is ultimately determined that he did not
meet the required standard of conduct, and (iii) a determination is made that
the facts then known to those making the determination would not preclude
indemnification under Section 904.
Section 16-10a-907 of the Revised Act provides that, unless a
corporation's articles of incorporation provide otherwise, (i) an officer of the
corporation is entitled to mandatory indemnification under Section 903 and is
entitled to apply for court ordered indemnification under Section 905, in each
case to the same extent as a director, (ii) the corporation may indemnify and
advance expenses to an officer, employee, fiduciary or agent of the corporation
to the same extent as a director, and (iii) a corporation may also indemnify and
advance expenses to an officer, employee, fiduciary or agent who is not a
director to a greater extent than the right of indemnification granted to
directors, if not inconsistent with public policy, and if provided for by its
articles of incorporation, bylaws, general or specific action of its board of
directors or contract.
The Registrant's Amended and Restated Bylaws (the "Bylaws") provide
that, subject to the limitations described below, the Registrant shall, to the
maximum extent and in the manner permitted by the Revised Act, indemnify any
individual made party to a proceeding because he is or was a director or officer
of the Registrant, against liability incurred in the proceeding if his conduct
was in good faith, he reasonably believed that his conduct was in, or not
opposed to, the Registrant's best interest and, in the case of any criminal
proceeding he had no reasonable cause to believe his conduct was unlawful. The
Registrant may not, however, extend such indemnification to an officer or
director in connection with a proceeding by or in the right of the Registrant in
which such person was adjudged liable to the Registrant, or in connection with
any other proceeding charging that such person derived an improper personal
benefit, whether or not involving action in his official capacity, in which
proceeding he was adjudged liable on the basis that he derived an improper
personal benefit, unless ordered by a court of competent jurisdiction.
Notwithstanding the foregoing, the Bylaws obligate the Registrant to indemnify
an officer or director who was successful on the merits or otherwise, in the
defense of any proceeding or the defense of any claim, issue or matter in the
proceeding to which he was a party because he is or was a director or officer of
the Registrant against reasonable expenses incurred in connection with the
proceeding or claim with respect to which he was successful. The Bylaws also
permit the Registrant to pay for or reimburse the reasonable expenses incurred
by an officer or director who is party to a proceeding in advance of final
disposition of the proceeding if (i) the officer or director furnishes to the
Registrant a written affirmation of his good faith belief that he has met the
applicable standard of conduct necessary for indemnification, (ii) the officer
or director furnishes to the Registrant a written undertaking to repay the
advance if it is ultimately determined that he did not meet the standard of
conduct, and (iii) a determination is made that the facts then known to those
making the determination would not preclude indemnification pursuant to the
Bylaws. The Bylaws also provide that any indemnification or advancement of
expenses provided thereby shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be entitled
under any articles of incorporation, bylaw, agreement, stockholders or
disinterested directors, or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office.
Utah law permits director liability to be eliminated in accordance with
Section 16-10a-841 of the Revised Act, which provides that the liability of a
director to the corporation or its stockholders for monetary damages for any
action taken or any failure to take any action, as a director, may be limited or
eliminated by the corporation except for liability for (i) the amount of
financial benefit received by a director to which he is not entitled; (ii) an
4
5
intentional infliction of harm on the corporation or its stockholders; (iii) a
violation of Section 16-10a-842 of the Revised Act which prohibits unlawful
distributions by a corporation to its stockholders; or (iv) an intentional
violation of criminal law. Such a provision may appear either in a corporation's
articles of incorporation or bylaws; however, to be effective, such a provision
must be approved by the corporation's stockholders.
The Registrant's Restated Articles of Incorporation, as amended by the
Company's stockholders at the 1993 Annual Meeting of Stockholders (the "Restated
Articles"), provide that the personal liability of any director to the
Registrant or its stockholders for monetary damages for any action taken or the
failure to take any action, as a director, is eliminated to the fullest extent
permitted by Utah law.
The Bylaws provide that the Registrant may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee,
fiduciary or agent of the Registrant, or is or was serving at the request of the
Registrant as a director, officer, employee, fiduciary or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him or incurred by him in such capacity or arising
out of his status in such capacity, whether or not the Registrant would have the
power to indemnify him against such liability under the indemnification
provisions of the Bylaws or the laws of the State of Utah, as the same may
hereafter be amended or modified.
The Registrant maintains insurance from commercial carriers against
certain liabilities which may be incurred by its directors and officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See the Exhibit Index on page 9.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made of the securities registered hereby, a post-effective
amendment to this Registration Statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement (or the
most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in this Registration Statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in
this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by
those
5
6
paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
6
7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of St. George, State of Utah, on June 12, 1995.
SKYWEST, INC.
By /s/ Jerry C. Atkin
-------------------------------------------------------
Jerry C. Atkin
Chairman, President and Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature to this
Registration Statement appears below hereby constitutes and appoints Jerry C.
Atkin and Bradford R. Rich, and each of them, as his true and lawful
attorney-in-fact and agent, with full power of substitution, to sign on his
behalf individually and in the capacity stated below and to perform any acts
necessary to be done in order to file all amendments and post-effective
amendments to this Registration Statement, and any and all instruments or
documents filed as part of or in connection with this Registration Statement or
the amendments thereto and each of the undersigned does hereby ratify and
confirm all that said attorney-in-fact and agent, or his substitutes, shall do
or cause to be done by virtue hereof.
Signature Title Date
--------- ----- ----
/s/ Jerry C. Atkin Chairman, President and Chief Executive June 7, 1995
- ----------------------------- Officer (Principal executive officer)
Jerry C. Atkin
Director June __, 1995
- -----------------------------
J. Ralph Atkin
/s/ Sidney J. Atkin Director June 7, 1995
- -----------------------------
Sidney J. Atkin
/s/ Bradford R. Rich Executive Vice President and Chief June 12, 1995
- ----------------------------- Financial Officer (Principal financial
Bradford R. Rich and accounting officer)
/s/ Lee C. Atkin Director June 7, 1995
- -----------------------------
Lee C. Atkin
/s/ Dell C. Stout Director June 6, 1995
- -----------------------------
Dell C. Stout
7
8
/s/ Mervyn K. Cox Director June 7, 1995
- -----------------------------
Mervyn K. Cox
/s/ Brent V. Atkin Director June 5, 1995
- -----------------------------
Brent V. Atkin
Director June __, 1995
- -----------------------------
Ian M. Cumming
Director June __, 1995
- -----------------------------
Steven F. Udvar-Hazy
Director June __, 1995
- -----------------------------
W. Martin Braham
8
9
SKYWEST, INC.
EXHIBIT INDEX
Regulation S-K Sequential System
Exhibit No. Description Page No.
- -------------- ----------- -----------------
4.1 Restated Articles of Incorporation of the
Registrant and all amendments thereto.
4.2 Amended and Restated Bylaws (incorporated by
reference to Exhibit No. 4.2 of the Registrant's
Registration Statement on Form S-3 (Reg. No.
33-74290) filed January 20, 1994.
4.3 1995 Employee Stock Purchase Plan.
5 Opinion of Kimball, Parr, Waddoups, Brown
& Gee, a professional corporation, as to the
legality of the securities offered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Kimball, Parr, Waddoups, Brown
& Gee (included in Exhibit No. 5).
24 Powers of Attorney (included on pages 7-8
hereof).
9