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As filed with the Securities and Exchange Commission on September 5, 1995
Registration No. 33-
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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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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.)
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444 South River Road
St. George, Utah 84770
(Address of Principal Executive Offices,
including Zip Code)
SKYWEST'S ALLSHARE INCENTIVE STOCK OPTION PLAN
(Full title of the plan)
BRADFORD R. RICH Copy to:
Executive Vice President and RICHARD G. BROWN
Chief Financial Officer Kimball, Parr, Waddoups, Brown & Gee
Skywest, Inc. 185 South State Street, Suite 1300
444 South River Road Salt Lake City, Utah 84111
St. George, Utah 84770 (801) 532-7840
(801) 634-3000
(Name, address and telephone
number, including area code,
of agent for service)
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
OFFERING AGGREGATE
AMOUNT TO BE PRICE PER OFFERING AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED SHARE(1) PRICE(1) REGISTRATION FEE(1)
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Common Stock, no par value......... 500,000 shares $20.64 $10,320,000 $3,559
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(1) Estimated pursuant to Rule 457(h)(1) for purposes of calculating the
registration fee. With respect to 120,000 shares of the 500,000 being
registered, the offering price per share, aggregate offering price and
registration fee have been calculated upon the basis of the exercise price
at which such options may be exercised, pursuant to Rule 457(h)(1). With
respect to the remaining 380,000 shares being registered, for which the
exercise price is not known, the offering price per share, aggregate
offering price and registration fee are computed on the basis of the
average of the high and low sales prices as reported on the NASDAQ Stock
Market (National Market System) on August 28, 1995.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Plan Annual Information.*
* Information required by Part I to be contained in the Section
10(a) prospectus is omitted from this Registration Statement
in accordance with Rule 428 under the Securities Act of 1933,
as amended (the "Securities Act"), and the Note to Part I of
Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by SkyWest, Inc. (the "Registrant") with
the Securities and Exchange Commission are hereby incorporated by reference in
this Registration Statement:
(1) The Registrant's Annual Report on Form 10-K (File No. 0-14719)
for the fiscal year ended March 31, 1995, which contains, among other things,
the consolidated financial statements of the Registrant for the three-year
period ended March 31, 1995, together with the report thereon of Arthur
Andersen LLP, independent public accountants.
(2) The Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 1995.
(3) The description of the Registrant's Common Stock, no par
value, contained in the Registrant's Registration Statement on Form 8-A filed
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
including any amendment or report filed under the Exchange Act for the purpose
of updating such description.
In addition, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated by reference herein shall be
deemed to be modified or superseded for purposes hereof to the extent that a
statement contained herein (or in any other subsequently filed document which
also is incorporated by reference herein) modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed to
constitute a part hereof except as so modified or superseded.
The financial statements and schedule of the Registrant included in or
incorporated by reference in the Registrant's Annual Report on Form 10-K for
the fiscal year ended March 31, 1995, and incorporated by reference in this
Registration Statement, have been audited by Arthur Andersen LLP, independent
public accountants, as indicated in their reports with respect thereto, and are
incorporated herein in reliance upon the authority of said firm as experts in
giving said reports.
Future financial statements of the Registrant and the reports thereon
of Arthur Andersen LLP also will be incorporated by reference in this
Registration Statement in reliance upon the authority of said firm as experts in
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giving those reports to the extent said firm has audited those financial
statements and consented to the use of their reports thereon.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 16-10a-902 ("Section 902") of the Utah Revised Business
Corporation Act (the "Revised Act") provides that a corporation may indemnify
any individual who was, is, or is threatened to be made a named defendant or
respondent (a "Party") in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative and
whether formal or informal (a "Proceeding"), because he is or was a director of
the corporation or is or was serving at its request as a director, officer,
partner, trustee, employee, fiduciary or agent of another corporation or other
person or of an employee benefit plan (an "Indemnified Director"), against any
obligation incurred with respect to a Proceeding, including any judgment,
settlement, penalty, fine or reasonable expenses (including attorneys' fees),
incurred in the Proceeding if his conduct was in good faith, he reasonably
believed that his conduct was in, or not opposed to, the best interests of the
corporation, and, in the case of any criminal Proceeding, he had no reasonable
cause to believe his conduct was unlawful; except that (i) indemnification
under Section 902 in connection with a Proceeding by or in the right of the
corporation is limited to payment of reasonable expenses (including attorneys'
fees) incurred in connection with the proceeding and (ii) the corporation may
not indemnify a director in connection with a Proceeding by or in the right of
the corporation in which the director was adjudged liable to the corporation,
or in connection with any other Proceeding charging that the director derived
an improper personal benefit, whether or not involving action in his official
capacity, in which Proceeding he was adjudged liable on the basis that he
derived an improper personal benefit.
Section 16-10a-906 of the Revised Act provides that a corporation may
not indemnify a director under Section 902 unless authorized and a determination
has been made (by the board of directors, a committee of the board of directors
or by the stockholders) that indemnification of the director is permissible in
the circumstances because the director has met the applicable standard of
conduct set forth in Section 902.
Section 16-10a-903 ("Section 903") of the Revised Act provides that,
unless limited by its articles of incorporation, a corporation shall indemnify
a director who was successful, on the merits or otherwise, in the defense of
any Proceeding, or in the defense of any claim, issue or matter in the
proceeding, to which he was a Party because he is or was a director of the
corporation, against reasonable expenses (including attorneys' fees) incurred
by him in connection with the Proceeding or claim.
In addition to the indemnification provided by Sections 902 and 903,
Section 16-10a-905 ("Section 905") of the Revised Act provides that, unless
otherwise limited by a corporation's articles of incorporation, a director may
apply for indemnification to the court conducting the Proceeding or to another
court of competent jurisdiction. On receipt of an application and after giving
any notice the court considers necessary, (i) the court may order mandatory
indemnification under Section 903, in which case the court shall also order the
corporation to pay the director's reasonable expenses to obtain court-ordered
indemnification, or (ii) upon the court's determination that the director is
fairly and reasonably entitled to indemnification in view of all the relevant
circumstances and regardless of whether the director met the applicable
standard of conduct set forth in Section 902, the court may order
indemnification as the court determines to be proper, except that
indemnification with respect to certain
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Proceedings resulting in a director being found liable for certain actions
against the corporation may be limited to reasonable expenses (including
attorneys' fees) incurred by the director.
Section 16-10a-904 ("Section 904") of the Revised Act provides that a
corporation may pay for or reimburse the reasonable expenses (including
attorneys' fees) incurred by a director who is a Party to a Proceeding in
advance of the final disposition of the Proceeding if (i) the director
furnishes the corporation a written affirmation of his good faith belief that
he has met the applicable standard of conduct described in Section 902, (ii)
the director furnishes to the corporation a written undertaking, executed
personally or in his behalf, to repay the advance if it is ultimately
determined that he did not meet the required standard of conduct, and (iii) a
determination is made that the facts then known to those making the
determination would not preclude indemnification under Section 904.
Section 16-10a-907 of the Revised Act provides that, unless a
corporation's articles of incorporation provide otherwise, (i) an officer of
the corporation is entitled to mandatory indemnification under Section 903 and
is entitled to apply for court ordered indemnification under Section 905, in
each case to the same extent as a director, (ii) the corporation may indemnify
and advance expenses to an officer, employee, fiduciary or agent of the
corporation to the same extent as a director, and (iii) a corporation may also
indemnify and advance expenses to an officer, employee, fiduciary or agent who
is not a director to a greater extent than the right of indemnification granted
to directors, if not inconsistent with public policy, and if provided for by
its articles of incorporation, bylaws, general or specific action of its board
of directors or contract.
The Registrant's Amended and Restated Bylaws (the "Bylaws") provide
that, subject to the limitations described below, the Registrant shall, to the
maximum extent and in the manner permitted by the Revised Act, indemnify any
individual made party to a proceeding because he is or was a director or
officer of the Registrant, against liability incurred in the proceeding if his
conduct was in good faith, he reasonably believed that his conduct was in, or
not opposed to, the Registrant's best interest and, in the case of any criminal
proceeding he had no reasonable cause to believe his conduct was unlawful. The
Registrant may not, however, extend such indemnification to an officer or
director in connection with a proceeding by or in the right of the Registrant
in which such person was adjudged liable to the Registrant, or in connection
with any other proceeding charging that such person derived an improper
personal benefit, whether or not involving action in his official capacity, in
which proceeding he was adjudged liable on the basis that he derived an
improper personal benefit, unless ordered by a court of competent jurisdiction.
Notwithstanding the foregoing, the Bylaws obligate the Registrant to indemnify
an officer or director who was successful on the merits or otherwise, in the
defense of any proceeding or the defense of any claim, issue or matter in the
proceeding to which he was a party because he is or was a director or officer
of the Registrant against reasonable expenses incurred in connection with the
proceeding or claim with respect to which he was successful. The Bylaws also
permit the Registrant to pay for or reimburse the reasonable expenses incurred
by an officer or director who is party to a proceeding in advance of final
disposition of the proceeding if (i) the officer or director furnishes to the
Registrant a written affirmation of his good faith belief that he has met the
applicable standard of conduct necessary for indemnification, (ii) the officer
or director furnishes to the Registrant a written undertaking to repay the
advance if it is ultimately determined that he did not meet the standard of
conduct, and (iii) a determination is made that the facts then known to those
making the determination would not preclude indemnification pursuant to the
Bylaws. The Bylaws also provide that any indemnification or advancement of
expenses provided thereby shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be entitled
under any articles of incorporation, bylaw, agreement, stockholders or
disinterested directors, or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office.
Utah law permits director liability to be eliminated in accordance
with Section 16-10a-841 of the Revised Act, which provides that the liability
of a director to the corporation or its stockholders for monetary damages for
any action taken or any failure to take any action, as a director, may be
limited or eliminated by the corporation except for liability for (i) the
amount of financial benefit received by a director to which he is not entitled;
(ii) an intentional infliction of harm on the corporation or its stockholders;
(iii) a violation of Section 16-10a-842 of the Revised Act which prohibits
unlawful distributions by a corporation to its stockholders; or (iv) an
intentional violation of criminal law. Such a provision may appear either in a
corporation's articles of incorporation or bylaws; however, to be effective,
such a provision must be approved by the corporation's stockholders.
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The Registrant's Restated Articles of Incorporation, as amended by the
Registrant's stockholders at the 1993 Annual Meeting of Stockholders (the
"Restated Articles"), provide that the personal liability of any director to
the Registrant or its stockholders for monetary damages for any action taken or
the failure to take any action, as a director, is eliminated to the fullest
extent permitted by Utah law.
The Bylaws provide that the Registrant may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee,
fiduciary or agent of the Registrant, or is or was serving at the request of
the Registrant as a director, officer, employee, fiduciary or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him or incurred by him in such capacity or arising
out of his status in such capacity, whether or not the Registrant would have
the power to indemnify him against such liability under the indemnification
provisions of the Bylaws or the laws of the State of Utah, as the same may
hereafter be amended or modified.
The Registrant maintains insurance from commercial carriers against
certain liabilities which may be incurred by its directors and officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See the Exhibit Index on page 9.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made of the securities registered hereby, a post-effective
amendment to this Registration Statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of this Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in this Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3 or Form S-8, and
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post- effective amendment
shall be deemed to be a new Registration Statement relating to the
securities
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offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
in the Registration Statement shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of St. George, State of Utah, on August 8, 1995.
SKYWEST, INC.
By /s/ Jerry C. Atkin
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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
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/s/ Jerry C. Atkin Chairman, President and Chief Executive August 8, 1995
- ------------------------- Officer (Principal executive officer)
Jerry C. Atkin
/s/ Bradford R. Rich Executive Vice President and Chief August 8, 1995
- ------------------------- Financial Officer (Principal financial
Bradford R. Rich and accounting officer)
/s/ J. Ralph Atkin Director August 8, 1995
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J. Ralph Atkin
/s/ Sidney J. Atkin Director August 8, 1995
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Sidney J. Atkin
/s/ W. Martin Braham Director August 8, 1995
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W. Martin Braham
/s/ Mervyn K. Cox Director August 8, 1995
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Mervyn K. Cox
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Director August ___, 1995
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Ian M. Cumming
/s/ Henry J. Eyring Director August 8, 1995
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Henry J. Eyring
/s/ Steven F. Udvar-Hazy Director August 8, 1995
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Steven F. Udvar-Hazy
/s/ Hyrum W. Smith Director August 8, 1995
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Hyrum W. Smith
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SKYWEST, INC.
EXHIBIT INDEX
Regulation S-K Sequential System
Exhibit No. Description Page No.
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4.1 Restated Articles of Incorporation of the
Registrant and all amendments thereto
(incorporated by reference to Exhibit No. 4.1
of the Registrant's Registration Statement on
Form S-8 (Reg. No. 33-60173) filed on June 12,
1995.
4.2 Amended and Restated Bylaws (incorporated by
reference to Exhibit No. 4.2 of the Registrant's
Registration Statement on Form S-3 (Reg. No.
33-74290) filed January 20, 1994.
4.3 SkyWest's AllShare Incentive Stock Option Plan.
5 Opinion of Kimball, Parr, Waddoups, Brown
& Gee, a professional corporation, as to the
legality of the securities offered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Kimball, Parr, Waddoups, Brown
& Gee (included in Exhibit No. 5).
24 Powers of Attorney (included on pages 7-8
hereof).
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