Exhibit 10.5
2005 EMPLOYEE STOCK INCENTIVE PLAN
OF
MESA AIR GROUP, INC.
SECTION 1. PURPOSE OF PLAN
The purpose of this 2005 Employee Stock Incentive Plan (this "Plan") of
Mesa Air Group, Inc., a Nevada corporation (the "Company"), is to enable the
Company and any subsidiary corporation (as the term is defined in Code Section
424(f), hereinafter each a "Subsidiary" or the plural "Subsidiaries") to
attract, retain and motivate their officers and other key employees, and to
further align the interests of such persons with those of the stockholders of
the Company by providing for or increasing the proprietary interest of such
persons in the Company.
SECTION 2. ADMINISTRATION OF PLAN
2.1 Composition of Committee. This Plan shall be administered by the
Compensation Committee of the Board of Directors (the "Committee"), as appointed
from time to time by the Board of Directors. The Board of Directors shall fill
vacancies on, and from time to time may remove or add members to, the Committee.
The Committee shall act pursuant to a majority vote or unanimous written
consent. The Board of Directors, in its sole discretion, may exercise any
authority of the Committee under this Plan in lieu of the Committee's exercise
thereof. Notwithstanding the foregoing, with respect to any Award that is not
intended to satisfy the conditions of Rule 16b-3 under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") or Section 162(m)(4)(C) of the
Internal Revenue Code of 1986, as amended (the "Code"), the Committee may
appoint one or more separate committees (any such committee, a "Subcommittee")
composed of one or more directors of the Company (who may but need not be
members of the Committee) and may delegate to any such Subcommittee(s) the
authority to grant Awards, as defined in Section 5.1 hereof, under the Plan to
Eligible Persons, to determine all terms of such Awards, and/or to administer
the Plan or any aspect of it. Any action by any such Subcommittee within the
scope of such delegation shall be deemed for all purposes to have been taken by
the Committee. The Committee may designate the Secretary of the Company or other
Company employees to assist the Committee in the administration of the Plan, and
may grant authority to such persons to execute agreements or other documents
evidencing Awards made under this Plan or other documents entered into under
this Plan on behalf of the Committee or the Company.
2.2 Powers of the Committee. Subject to the express provisions of this
Plan, the Committee shall be authorized and empowered to do all things necessary
or desirable, in its sole discretion, in connection with the administration of
this Plan, including, without limitation, the following:
(a) to prescribe, amend and rescind rules and regulations relating to
this Plan and to define terms not otherwise defined herein; provided that,
unless the Committee shall specify otherwise, for purposes of this Plan (i)
the term "fair market value" shall mean, as of any date, the closing price
for a Share (as defined in Section 3.1) reported for the last trading day
prior to such date by the Nasdaq Stock Market (or such other stock exchange
or quotation system on which Shares are then listed or quoted) or, if no
Shares are traded on the Nasdaq Stock Market (or such other stock exchange
or quotation system) on the date in question, then for the next preceding
date for which Shares traded on the Nasdaq Stock Market (or such other
stock exchange or quotation system); and (ii) the term "Company" shall mean
the Company and its Subsidiaries, unless the context otherwise requires;
(b) to determine which persons are Eligible Persons (as defined in
Section 4), to which of such Eligible Persons, if any, Awards shall be
granted hereunder and the timing of any such Awards, and to grant Awards;
(c) to grant Awards to Eligible Persons and determine the terms and
conditions thereof, including the number of Shares subject to Awards and
the exercise or purchase price of such Shares and the circumstances under
which Awards become exercisable or vested or are forfeited or expire, which
terms may but need not be conditioned upon the passage of time, continued
employment, the satisfaction of performance criteria, the occurrence of
certain events (including events which the Board or the Committee determine
constitute a change of control), whether such Award complies with Code
Section 409A and Notice 2005-1 or other factors;
(d) to establish, verify the extent of satisfaction of, adjust, reduce
or waive any performance goals or other conditions applicable to the grant,
issuance, exercisability, vesting and/or ability to retain any Award;
(e) to prescribe and amend the terms of the agreements or other
documents evidencing Awards made under this Plan (which need not be
identical);
(f) to determine whether, and the extent to which, adjustments are
required pursuant to Section 10;
(g) to interpret and construe this Plan, any rules and regulations
under this Plan and the terms and conditions of any Award granted
hereunder, and to make exceptions to any such provisions in good faith and
for the benefit of the Company; and
(h) to make all other determinations deemed necessary or advisable for
the administration of this Plan.
2.3 Determinations of the Committee. All decisions, determinations and
interpretations by the Committee regarding this Plan shall be final and binding
on all Eligible Persons and Participants. The Committee shall consider such
factors as it deems relevant to making such decisions, determinations and
interpretations including, without limitation, the recommendations or advice of
any director, officer or employee of the Company and such attorneys, consultants
and accountants as it may select.
SECTION 3. STOCK SUBJECT TO PLAN
3.1 Aggregate Limits. The aggregate number of shares of the Company's
Common Stock, no par value ("Shares"), issued pursuant to all Awards granted
under this Plan shall not exceed 1,500,000; plus, the number of shares equal to
the number of shares subject to awards granted under the Company's 1996 Stock
Option Plan but ultimately which are not issued under such plan as a result of
the cancellation, expiration or forfeiture of such awards (such Shares being
known as the "1996 Plan Shares"). The aggregate number of Shares available for
issuance under this Plan and the number of Shares subject to outstanding Options
or other Awards shall be subject to adjustment as provided in Section 10. The
Shares issued pursuant to this Plan may be Shares that either were reacquired by
the Company, including Shares purchased in the open market, or authorized but
unissued Shares.
3.2 Additional Limits. The aggregate number of Shares subject to Options
granted under this Plan during any calendar year to any one Eligible Person
shall not exceed 150,000 (taking into account the number of shares associated
with an Option granted and then cancelled during such calendar year). The
aggregate number of Shares issued or issuable under all Awards granted under
this Plan, other than Options, during any calendar year to any one Eligible
Person shall not exceed 50,000 (taking into account the number of shares
associated with the Awards other than Options granted and then cancelled during
such calendar year). The foregoing limitations of this Section 3.2 shall not
apply to the extent that they are no longer required in order for compensation
in connection with grants of Awards under this Plan to be treated as
"performance-based compensation" under Code Section 162(m) and, if no longer
required, a change in such limitation shall not be subject to stockholder
approval as required under Section 13 hereof. The aggregate number of Shares
that may be issued pursuant to the exercise of ISOs granted under this Plan
shall not exceed 1,500,000 (provided that such Shares shall not include the 1996
Plan Shares), which number shall be calculated and adjusted pursuant to Section
3.3 and Section 10 only to the extent that such calculation or adjustment will
not affect the status of any Option intended to qualify as an ISO under Code
Section 422, or whether this Plan meets the requirements under Code Section
422(b)(1). For the avoidance of all doubt, the 1996 Plan Shares may not be
issued pursuant to the exercise of ISOs granted under the Plan.
3.3 Issuance of Shares. For purposes of Section 3.1, the aggregate number
of Shares issued under this Plan at any time shall equal only the number of
Shares actually issued upon exercise or settlement of an Award and shall not
include Shares subject to Awards that have been canceled, expired or forfeited
or Shares subject to Awards that have been delivered (either actually or
constructively by attestation) to or retained by the Company in payment or
satisfaction of the purchase price or exercise price of an Award.
SECTION 4. PERSONS ELIGIBLE UNDER PLAN
Any person who is an employee or prospective employee of the Company or any
of its Subsidiaries shall be
2
eligible to be considered for the grant of Awards hereunder; provided that the
Award to such prospective employee is conditioned on the prospective employee's
commencement of employment (an "Eligible Person"). The status of the chairman of
the Board of Directors as an "employee" shall be determined by the Committee.
SECTION 5. PLAN AWARDS
5.1 Award Types. The Committee, on behalf of the Company, is authorized
under this Plan to enter into certain types of arrangements with Eligible
Persons and to confer certain benefits on them. The following arrangements or
benefits are authorized under this Plan if their terms and conditions are not
inconsistent with the provisions of this Plan: Options, Performance Shares and
Restricted Stock. Such arrangements and benefits are sometimes referred to
herein as "Awards." The authorized types of arrangements and benefits for which
Awards may be granted are defined as follows:
(a) Options: An Option is a right granted under Section 6 to purchase
a number of Shares at such exercise price, at such times, and on such other
terms and conditions as are specified in the agreement or terms and
conditions or other document evidencing the Award (the "Option Document").
Options intended to qualify as Incentive Stock Options ("ISOs") pursuant to
Code Section 422 and Options not intended to qualify as ISOs ("Nonqualified
Options") may be granted under Section 6.
(b) Performance Shares. Performance Shares is an award made under
Section 8, to receive a number of Shares, the payment of which is
contingent upon achieving certain Committee established performance
standards derived from the Qualifying Performance Criteria described in
Section 9.2 hereof. Once the conditions for the Performance Shares are met,
the Performance Shares shall be payable either in cash or Shares (or both)
by reference to the fair market value of the Shares enumerated in the
Performance Shares at such time as determined by the Committee in the
Award.
(c) Restricted Stock: A Restricted Stock is an award or issuance of
Shares under Section 7, subject to certain restrictions and the risk of
forfeiture and terms as are expressed in the agreement or other document
evidencing the Award.
5.2 Grants of Awards. An Award may consist of one such arrangement or
benefit or two or more of them in tandem, and the terms as established by the
Committee for all Awards granted hereunder may include performance standards
derived from the Qualifying Performance Criteria, and the receipt of any Award
may be contingent on performance standards derived from the Qualifying
Performance Criteria.
SECTION 6. OPTIONS
The Committee may grant an Option or provide for the grant of an Option,
either from time to time in the discretion of the Committee or automatically
upon the occurrence of specified events, including, without limitation, the
achievement of performance goals, the satisfaction of an event or condition
within the control of the recipient of the Award or within the control of
others.
6.1 Option Document. Each Option Document shall contain provisions
regarding (a) the number of Shares that may be issued upon exercise of the
Option, (b) the purchase price of the Shares and the means of payment for the
Shares, (c) the term of the Option, (d) such terms and conditions on the vesting
and/or exercisability of an Option as may be determined from time to time by the
Committee, (e) restrictions on the transfer of the Option and forfeiture
provisions and (f) such further terms and conditions, in each case not
inconsistent with this Plan as may be determined from time to time by the
Committee. Option Documents evidencing ISOs shall contain such terms and
conditions as may be necessary to qualify, to the extent determined desirable by
the Committee, with the applicable provisions of Section 422 of the Code.
6.2 Option Price. The purchase price per share of the Shares subject to
each Option granted under this Plan shall equal or exceed 100% of the fair
market value of a Share on the date the Option is granted.
6.3 Option Term. The "Term" of each Option granted under this Plan,
including any ISOs, shall be 10 years from the date of its grant, unless the
Committee provides for a lesser term.
3
6.4 Option Vesting. Options granted under this Plan shall be exercisable at
such time and in such installments during the period prior to the expiration of
the Option's Term as determined by the Committee. The Committee shall have the
right to make the timing of the ability to exercise any Option granted under
this Plan subject to continued employment, the passage of time and/or such
performance requirements as deemed appropriate by the Committee.
6.5 Termination of Employment other than as a Result of Death or
Disability. An ISO of any Participant who shall cease to be an Employee other
than as a result of his death or disability shall be exercisable only to the
extent exercisable on the date of termination of employment (i.e., to the extent
vested) and must be exercised on or before the option expiration date specified
in the Option Agreement but is no event later than the date that is three (3)
months following the date of termination of employment. To the extent any ISO is
not exercisable on the date of termination of employment (i.e., to the extent
not vested) such ISO shall terminate on the date of termination of employment.
To the extent any ISO is not exercised within the time period provided, such ISO
shall terminate as of the date of expiration of such time period. Nothing in the
Plan shall be construed as imposing any obligation on the Company to continue
the employment of any Participant or shall interfere or restrict in any way the
rights of the Company to discharge any Employee at any time for any reason
whatsoever, with or without cause.
6.6 Payment of Exercise Price. The exercise price of an Option shall be
paid in the form of one of more of the following, as the Committee shall
specify, either through the terms of the Option Document or at the time of
exercise of an Option: (a) cash or certified or cashiers' check, (b) shares of
capital stock of the Company that have been held by the Participant for such
period of time as the Committee may specify, (c) other property deemed
acceptable by the Committee, (d) a reduction in the number of Shares or other
property otherwise issuable pursuant to such Option, (e) payment under an
arrangement with a broker selected or approved by the Company where payment is
made pursuant to an irrevocable commitment by the broker to deliver to the
Company proceeds from the sale of the Shares issuable upon exercise of the
Option, or (f) any combination of (a) through (d).
6.7 No Option Repricing. Without the approval of stockholders, the Company
shall not reprice any Options. For purposes of this Plan, the term "reprice"
shall mean lowering the exercise price of previously awarded Options within the
meaning of Item 402(i) under Securities and Exchange Commission Regulation S-K
(including canceling previously awarded Options and regranting them with a lower
exercise price).
SECTION 7. RESTRICTED STOCK AWARDS
The Committee is authorized to make Awards of Restricted Stock to
Participants in such amounts and subject to such terms and conditions as may be
determined by the Committee. All Awards of Restricted Stock shall be evidenced
by a Restricted Stock Award Agreement.
7.1 Issuance and Restrictions. Restricted Stock shall be subject to such
restrictions on transferability and other restrictions as the Committee may
impose (including, without limitation, limitations on the right to vote
Restricted Stock or the right to receive dividends on the Restricted Stock).
These restrictions may lapse separately or in combination of such times, under
such circumstances, in such installments, upon the satisfaction of continued
employment, standards derived from the Qualifying Performance Criteria, lapse of
time, certain acceleration events like death or disability or otherwise, as the
Committee determines at the time of the grant of the Award or thereafter.
7.2 Forfeiture. Except as otherwise determined by the Committee at the time
of the grant of the Award or thereafter, upon termination of employment during
the applicable restriction period or upon failure to satisfy a standard derived
from the Qualifying Performance Criteria during the applicable restriction
period, Restricted Stock that is at that time subject to restrictions shall be
forfeited and re-acquired by the Company; provided, however, that the Committee
may provide in any Award Agreement that restrictions or forfeiture conditions
relating to Restricted Stock will be waived in whole or in part in the event of
terminations resulting from specified causes, and the Committee may in other
cases waive in whole or in part restrictions or forfeiture conditions relating
to Restricted Stock.
7.3 Certificates for Restricted Stock. Restricted Stock granted under the
Plan may be evidenced in such manner as the Committee shall determine. If
certificates representing shares of Restricted Stock are registered in the name
of the Participant, certificates must bear an appropriate legend referring to
the terms, conditions, and restrictions
4
applicable to such Restricted Stock.
SECTION 8. PERFORMANCE SHARES
The Committee is authorized to grant Performance Shares to Participants on
such terms and conditions as may be determined by the Committee. The Committee
shall have the complete discretion to determine the number of Performance Shares
granted to each Participant. All Awards of Performance Shares shall be evidenced
by an Award Agreement.
8.1 Right to Payment. A grant of Performance Shares gives the Participant
the right to a number of Shares, contingent upon certain performance standards
established by the Committee and derived from the Qualifying Performance
Criteria, and certain other terms and conditions as may be established by the
Committee. Once the conditions and terms for the performance Shares have been
met, the Performance Shares shall be payable by the Company either in cash or
Shares (or both) by reference to the fair market value of the Shares enumerated
in the Performance Shares and the timing of such payment of cash or Shares shall
be set forth in the Award for the Performance Shares by the Committee.
8.2 Other Terms. The time period for the measurement of any performance
standard or criteria shall be any time period established by the Committee, but
under no circumstance shall a Performance Shares be granted after the expiration
of the Plan, and the applicable performance associated with such Performance
Share must begin before the expiration of this Plan. The cash or Shares paid
with respect to Performance Shares may be paid in a lump sum or in installments
following the close of the performance period or, in accordance with procedures
established by the Committee, on a deferred basis.
SECTION 9. OTHER PROVISIONS APPLICABLE TO AWARDS
9.1 Transferability. Unless the agreement or other document evidencing an
Award (or an amendment thereto authorized by the Committee) expressly states
that the Award is transferable as provided hereunder, no Award granted under
this Plan, nor any interest in such Award, may be sold, assigned, conveyed,
gifted, pledged, hypothecated or otherwise transferred in any manner prior to
the vesting or lapse of any and all restrictions applicable thereto.
9.2 Qualifying Performance Criteria. For purposes of this Plan, the term
"Qualifying Performance Criteria" shall mean any one or more of the following
performance criteria, either individually, alternatively or in any combination,
applied to either the Company as a whole, to a business unit or subsidiary, or
based on comparisons of any of the performance measures relative to other
companies, either individually, alternatively or in any combination, and
measured either annually or cumulatively over a period of years, on an absolute
basis or relative to a pre-established target, to previous years' results or to
a designated comparison group, in each case as specified by the Committee in the
Award: (a) cash flow, (b) earnings per share or increases of same, (c) earnings
before interest, taxes and amortization, (d) return on equity, (e) total
stockholder return, (f) share price performance, (g) return on capital or
investment, (h) return on assets or net assets, (i) revenue, (j) income or net
income, (k) operating income or net operating income, (l) operating profit or
net operating profit, (m) operating margin or profit margin, (n) return on
operating revenue, (o) pre-tax or after-tax profit levels expressed in either
absolute dollars, (p) revenues or revenue growth, (q) economic or cash value
added, (r) results of customer satisfaction surveys, (s) other measures of
performance, quality, safety, productivity or process improvement, (t) market
share, (u) overhead or other expense reduction, (v) departure or on-time arrival
performance, and (w) baggage handling. These factors may have a minimum
performance standard, a target performance standard and a maximum performance
standard. The Committee shall appropriately adjust any evaluation of performance
under a Qualifying Performance Criteria to exclude any of the following events
that occurs during a performance period: (i) asset write-downs, (ii) litigation
or claim judgments or settlements, (iii) the effect of changes in tax law,
accounting principles or other such laws or provisions affecting reported
results, (iv) accruals for reorganization and restructuring programs and (v) any
extraordinary non-recurring items as described in Accounting Principles Board
Opinion No. 30 and/or in management's discussion and analysis of financial
condition and results of operations appearing in the Company's annual report to
stockholders for the applicable year.
9.3 Dividends. Unless otherwise provided by the Committee, no adjustment
shall be made in Shares issuable
5
under Awards on account of cash dividends that may be paid or other rights that
may be issued to the holders of Shares prior to their issuance under any Award.
The Committee shall specify whether dividends or dividend equivalent amounts
shall be paid to any Participant with respect to the Shares subject to any Award
that have not vested or been issued or that are subject to any restrictions or
conditions on the record date for dividends.
9.4 Documents Evidencing Awards. Except for ISOs prior to the effective
date of the Plan as set forth in Section 17, the Committee shall, subject to
applicable law, determine the date an Award is deemed to be granted, which for
purposes of this Plan shall not be affected by the fact that an Award is
contingent on subsequent stockholder approval of this Plan. The Committee or,
except to the extent prohibited under applicable law, its delegate(s) may
establish the terms of agreements or other documents evidencing Awards under
this Plan and may, but need not, require as a condition to any such agreement's
or document's effectiveness that such agreement or document be executed by the
Participant and that such Participant agree to such further terms and conditions
as specified in such agreement or document. The grant of an Award under this
Plan shall not confer any rights upon the Participant holding such Award other
than such terms, and subject to such conditions, as are specified in this Plan
as being applicable to such type of Award (or to all Awards) or as are expressly
set forth in the agreement or other document evidencing such Award.
9.5 Tandem Stock or Cash Rights. At the time an Award is granted or by
subsequent action, the Committee may, but need not, provide that an Award shall
contain as a term thereof, a right, either in tandem with the other rights under
the Award or as an alternative thereto, of the Participant to receive, without
payment to the Company, a number of Shares, cash or a combination thereof, the
amount of which is determined by reference to the value of the Award.
9.6 Financing. The Committee may in its discretion provide financing to a
Participant in a principal amount sufficient to pay the purchase price of any
Award and/or to pay the amount of taxes required by law to be withheld with
respect to any Award. Any such loan shall be subject to all applicable legal
requirements and restrictions pertinent thereto, including Regulation U
promulgated by the Federal Reserve Board. The grant of an Award shall in no way
obligate the Company or the Committee to provide any financing whatsoever in
connection therewith.
9.7 Compliance with Code Section 409A. Notwithstanding any language to the
contrary in this Plan, the Committee will ensure that the terms and conditions
of any Awards issued will comply with the applicable provision of Code Section
409A or the regulations or other pronouncements thereunder.
9.8 Additional Restrictions on Awards. Either at the time an Award is
granted or by subsequent action, the Committee may, but need not, impose such
restrictions, conditions or limitations as it determines appropriate as to the
timing and manner of any resales by a Participant or other subsequent transfers
by a Participant of any Shares issued under an Award, including without
limitation (a) restrictions under an insider trading policy, (b) restrictions
designed to delay and/or coordinate the timing and manner of sales by
Participants, and (c) restrictions as to the use of a specified brokerage firm
for such resales or other transfers.
SECTION 10. CHANGES IN CAPITAL STRUCTURE
10.1 Corporate Actions Unimpaired. The existence of outstanding Awards
(including any Options) shall not affect in any way the right or power of the
Company or its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations, exchanges, or other changes in the Company's
capital structure or its business, or any merger or consolidation of the
Company, or any issuance of Shares or other securities or subscription rights
thereto, or any issuance of bonds, debentures, preferred or prior preference
stock ahead of or affecting the Shares or other securities of the Company or the
rights thereof, or the dissolution or liquidation of the Company, or any sale or
transfer of all or any part of its assets or business, or any other corporate
act or proceeding, whether of a similar character or otherwise. Further, except
as expressly provided herein or by the Committee, (a) the issuance by the
Company of shares of stock of any class of securities convertible into shares of
stock of any class, for cash, property, labor or services, upon direct sale,
upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into such shares
or other securities, (b) the payment of a dividend in property other than
Shares, or (c) the occurrence of any similar transaction, and in any case
whether or not for fair value, shall not affect, and no adjustment by reason
thereof shall be made with respect to, the number of Shares subject to Options
or other Awards theretofore granted or the purchase price per Share, unless the
Committee
6
shall determine in its sole discretion that an adjustment is necessary to
provide equitable treatment to a Participant.
10.2 Adjustments Upon Certain Events. If the outstanding Shares or other
securities of the Company, or both, for which the Award is then exercisable or
as to which the Award is to be settled shall at any time be changed or exchanged
by declaration of a stock dividend, stock split, combination of shares,
recapitalization, or reorganization, the Committee may appropriately and
equitably adjust the number and kind of Shares or other securities which are
subject to the Plan or subject to any Awards theretofore granted, and the
exercise or settlement prices of such Awards, so as to maintain the
proportionate number of Shares or other securities without changing the
aggregate exercise or settlement price, provided, however, that such adjustment
shall be made so as to not affect the status of any Award intended to qualify as
an ISO or as "performance based compensation" under Section 162(m) of the Code.
SECTION 11. MERGERS AND LIQUIDATION
Except as limited by the provisions of Code Section 422 of the Code and the
terms of any individual Award, if the company is the surviving corporation in
any merger or consolidation, all Awards shall remain in force, and any: (1)
Option granted under the Plan shall remain outstanding pursuant to the terms of
the Plan and the Award; and (2) Restricted Stock granted under the Plan shall
continue to be outstanding pursuant to the terms of the Award and this Plan.
Except to the extent otherwise provided in an Award document, by the Board, or
as limited by Code Section 422, dissolution or liquidation of the Company shall
cause every unvested Option, Restricted Stock or other Award for which there
remains contingencies, conditions and unmet performance standards to terminate.
Except as limited by Code Section 422, a merger or consolidation in which the
Company is not the surviving corporation shall also cause every unvested Option,
Restricted Stock or other Award for which there remains contingencies,
conditions and unmet performance standards to terminate unless specifically
provided otherwise in an Award document or by the Board.
SECTION 12. TAXES
12.1 Withholding Requirements. The Committee may make such provisions or
impose such conditions as it may deem appropriate for the withholding or payment
by a Participant of any taxes that the Committee determines are required in
connection with any Award granted under this Plan, and a Participant's rights in
any Award are subject to satisfaction of such conditions.
12.2 Payment of Withholding Taxes. Notwithstanding the terms of Section
12.1, the Committee may provide in the agreement or other document evidencing an
Award or otherwise that all or any portion of the taxes required to be withheld
by the Company or, if permitted by the Committee, desired to be paid by the
Participant, in connection with the exercise, vesting, settlement or transfer of
any other Award shall be paid or, at the election of the Participant, may be
paid by the Company by withholding shares of the Company's capital stock
otherwise issuable or subject to such Award, or by the Participant delivering
previously owned shares of the Company's capital stock, in each case having a
fair market value equal to the amount required or elected to be withheld or
paid, or by a broker selected or approved by the Company paying such amount
pursuant to an irrevocable commitment by the broker to deliver to the Company
proceeds from the sale of the Shares issuable under the Award. Any such election
is subject to such conditions or procedures as may be established by the
Committee and may be subject to approval by the Committee.
SECTION 13. AMENDMENTS OR TERMINATION
The Board may amend, alter or discontinue this Plan or any agreement or
other document evidencing an Award made under this Plan but, except as provided
pursuant to the anti-dilution adjustment provisions of Section 10.2, no such
amendment shall, without the approval of the stockholders of the Company:
(a) change the maximum number of shares of Common Stock for which
Awards may be granted under this Plan;
(b) reduce the price at which Options may be granted below the price
provided for in Section 6.2;
7
(c) reduce the exercise price of outstanding Options;
(d) extend the term of this Plan;
(e) change the class of persons eligible to be Eligible Persons or
Participants; or
(f) increase the number of shares that are eligible for non-Option
Awards.
The Board may amend, alter or discontinue the Plan or any agreement
evidencing an Award made under the Plan, but no amendment or alteration shall be
made which would impair the rights of any Award holder, without such holder's
consent, under any Award theretofore granted; provided that no such consent
shall be required if the Committee determines in its sole discretion and prior
to the date of any change in control, recapitalization, stock dividend, stock
split, reorganization, merger, consolidation or similar type transaction that
such amendment or alteration either is required or advisable in order for the
Company, the Plan, or any Award granted, to satisfy any law or regulation or to
meet the requirements of any accounting standard.
SECTION 14. COMPLIANCE WITH OTHER LAWS AND REGULATIONS.
This Plan, the grant and exercise of Awards thereunder, and the obligation
of the Company to sell, issue or deliver Shares under such Awards, shall be
subject to all applicable federal, state and foreign laws, rules and regulations
and to such approvals by any governmental or regulatory agency as may be
required. The Company shall not be required to register in a Participant's name
or deliver any Shares prior to the completion of any registration or
qualification of such Shares under any federal, state or foreign law or any
ruling or regulation of any government body which the Committee shall determine
to be necessary or advisable. This Plan is intended to constitute an unfunded
arrangement for the Eligible Persons.
No Option shall be exercisable unless a registration statement with respect
to the Option is effective or the Company has determined that such registration
is unnecessary. Unless the Awards and Shares covered by this Plan have been
registered under the Securities Act of 1933, as amended, or the Company has
determined that such registration is unnecessary, each person receiving an Award
and/or Shares pursuant to any Award may be required by the Company to give a
representation in writing that such person is acquiring such Shares for his or
her own account for investment and not with a view to, or for sale in connection
with, the distribution of any part thereof.
SECTION 15. NO RIGHT TO COMPANY EMPLOYMENT
Nothing in this Plan or as a result of any Award granted pursuant to this
Plan shall confer on any individual any right to continue in the employ of the
Company or interfere in any way with the right of the Company to terminate an
individual's employment at any time. The agreements or other documents
evidencing Awards may contain such provisions as the Committee may approve with
reference to the effect of approved leaves of absence.
SECTION 16. LIABILITY OF COMPANY
The Company and any Affiliate which is in existence or hereafter comes into
existence shall not be liable to a Participant, an Eligible Person or other
persons as to:
(a) The Non-Issuance of Shares. The non-issuance or sale of shares as
to which the Company has been unable to obtain from any regulatory body
having jurisdiction the authority deemed by the Company's counsel to be
necessary to the lawful issuance and sale of any shares hereunder; and
(b) Tax Consequences. Any tax consequence expected, but not realized,
by any Participant, Eligible Person or other person due to the receipt,
exercise or settlement of any Option or other Award granted hereunder.
SECTION 17. EFFECTIVENESS AND EXPIRATION OF PLAN
This Plan shall be effective on the date the Company's stockholders adopt
this Plan, and no ISOs shall be granted prior to the Company's stockholders
adoption of this Plan. All Awards granted under this Plan are subject
8
to, and may not be exercised before the approval of this Plan by the
stockholders. Stockholder approval of the Plan shall be by the affirmative vote
of the holders of a majority of the outstanding shares of the Company present,
or represented by proxy, and entitled to vote, at a meeting of the Company's
stockholders or by written consent in accordance with the laws of the State of
Delaware; provided that if such approval by the stockholders of the Company is
not forthcoming, all Awards previously granted under this Plan shall be void. No
Awards shall be granted pursuant to this Plan more than 10 years after the
effective date of this Plan.
SECTION 18. INCENTIVE STOCK OPTIONS
Notwithstanding anything in the Plan to the contrary, it is the intention
of the Company and the Committee that all terms and provisions relating to
Incentive Stock Options of this Plan shall be consistent with the requirements
of Code Section 422 and the applicable regulations thereunder, as of the
effective date of this plan, and to the extent any term or provision of this
Plan relating to Incentive Stock Options is inconsistent with Code Section 422
and the applicable regulations thereunder at that date, the term or provision
shall be read, interpreted or substituted so as to be consistent with the
applicable provision of Code Section 422 or the regulations thereunder.
SECTION 19. NON-EXCLUSIVITY OF PLAN
Neither the adoption of this Plan by the Board nor the submission of this
Plan to the stockholders of the Company for approval shall be construed as
creating any limitations on the power of the Board or the Committee to adopt
such other incentive arrangements as either may deem desirable, including
without limitation, the granting of restricted stock or stock options otherwise
than under this Plan, and such arrangements may be either generally applicable
or applicable only in specific cases.
SECTION 20. GOVERNING LAW
This Plan and any agreements or other documents hereunder shall be
interpreted and construed in accordance with the laws of the State of Nevada and
applicable federal law. The Committee may provide that any dispute as to any
Award shall be presented and determined in such forum as the Committee may
specify, including through binding arbitration. Any reference in this Plan or in
the agreement or other document evidencing any Award to a provision of law or to
a rule or regulation shall be deemed to include any successor law, rule or
regulation of similar effect or applicability.
SECTION 21. MISCELLANEOUS MATTERS
21.1 Annulment of Awards. The grant of any Award under the Plan payable in
cash is provisional until cash is paid in settlement thereof. The grant of any
Award payable in Shares is provisional until the Participant becomes entitled to
the certificates in settlement thereof. In the event the employment of a
Participant is terminated for cause (as defined below), any Award which is
provisional shall be annulled as of the date of such termination for cause. For
the purpose of this Section 21.1, the term "terminated for cause" means any
discharge for violation of the policies and procedures of the Company or any
Subsidiary or for other job performance or conduct which is detrimental to the
best interests of the Company or a Subsidiary.
21.2 Securities Law Restrictions. No Shares shall be issued under the Plan
unless counsel for the Company shall be satisfied that such issuance will be in
compliance with applicable Federal and state securities laws. Certificates for
Shares delivered under the Plan may be subject to such stock-transfer orders and
other restrictions as the Committee may deem advisable under the rules,
regulations, and other requirements of the Securities and Exchange Commission,
any stock exchange upon which the Shares is then listed, and any applicable
Federal or state securities law. The Committee may cause a legend or legends to
be put on any such certificates to refer to those restrictions. Further, without
limiting the foregoing, each person exercising an Option or Performance Shares
or receiving Restricted Stock may be required by the Company to give a
representation in writing that he or she is acquiring Shares for his or her own
account for investment and not with a view to, or for sale in connection with,
the distribution of any part thereof (regardless of whether such option and
Shares covered by the Plan are registered under the Securities Act of 1933, as
amended). As a condition of transfer of the certificate evidencing Shares, the
Committee may obtain such other agreements or undertakings, if any, that it may
deem necessary or appropriate to assume compliance with any provisions of the
Plan or any law or regulation. Certificates for Shares delivered under
9
the Plan may be subject to such stock transfer orders and other restrictions as
the Board may deem advisable under the rules, regulations, and other
requirements of the Securities and Exchange Commission, any stock exchange upon
which the Shares are then listed, and any applicable Federal or state securities
laws. The Board may cause a legend or legends to be put on any such certificate
to refer to those restrictions.
21.3 Award Agreement. Each Participant receiving an Award under the Plan
shall enter into an, Award Agreement with the Company in a form specified by the
Committee agreeing to the terms and conditions of the Award and such related
matters as the Committee, in its sole discretion, shall determine.
21.4 Costs of Plan. The costs and expenses of administering the Plan shall
be borne by the Company.
21.5 Tax Reimbursement Payments to Participants. The Committee, pursuant to
the terms of the agreements or other documents pursuant to which specific Awards
are made under the 2005 Plan, may agree to reimburse Participants for some or
all of the federal, state and local income taxes associated with the grant or
exercise of an Award or the receipt of the cash or Shares from an Award
(including any additional tax imposed due to Code Section 409A), or the 20%
excise tax on any "excess parachute payments" under Code Sections 280G and Code
Section 4999, and may agree to reimburse such Participants for some or all the
additional federal, state and local income tax associated with the payments made
under this Section 21.5.
21.6 Government Regulations. The Plan and the granting and exercise of
Options and Performance Shares hereunder, and the obligations of the Company to
sell and deliver Shares under such Options and Performance Shares, shall be
subject to all applicable laws, rules and regulations, and to such approvals by
any governmental agencies or national securities exchanges as may be required.
21.7 Interpretation. If any provision of the Plan is held invalid for any
reason, such holding shall not affect the remaining provisions of the Plan, but
instead the Plan shall be construed and enforced as if such provisions had never
been included in the Plan. Headings contained in the Plan are for convenience
only and shall in no manner be construed as part of this Plan. Any reference to
the masculine, feminine or neuter gender shall be a reference to such other
gender as is appropriate.
DATED this 8th day of February, 2005
MESA AIR GROUP, INC.
By:
------------------------------------
Its: Chairman & Chief Executive Officer
ATTESTED BY:
- -------------------------------------
Secretary
10