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EXHIBIT 99.5
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, dated as of the 24th day of January, 1997 between
CCAIR, Inc., a Delaware corporation having its principal office at Charlotte,
North Carolina (hereinafter called the "Company"), and Xxxxxx Xxxxxxx, III, a
director of the Company (hereinafter called the "Option Holder").
WITNESSETH:
WHEREAS, the Company acknowledges that stock options are granted in
compensation for service as a director in lieu of director's fees; and
WHEREAS, the Board of Directors of the Company has adopted a
Directors' Compensation Stock Option Plan, a true copy of which is annexed
hereto as Attachment A (hereinafter called the "Plan"); and
WHEREAS, on January 24, 1997, pursuant to the provisions of the Plan,
Option Holder was granted an option in respect of the number of shares
hereinbelow set forth; and
WHEREAS, the Board of Directors has, in adopting the Plan, determined
that there is a reasonable relationship between the value of this option and
the expected resulting benefit to be received by the Company by reason of the
grant of this option;
NOW, THEREFORE, in consideration of the mutual promises and
representations herein contained and other good and valuable consideration, the
parties hereto agree as follows:
1. Subject to the Plan, the terms and provisions of which are
incorporated herein by reference, the Company hereby grants to the Option
Holder Nonqualified Stock Options to purchase, on the terms and subject to the
conditions hereinafter set forth, all or any part of an aggregate of 15,000
shares of the Company's Common Stock (par value $.01 per share) (the "Common
Stock") at the purchase price of $1.6875 per share (the "Option"), exercisable
on or after July 24, 1997, unless sooner terminated as provided in the
Agreement or the Plan. In no event may the Option be exercised after five
o'clock p.m. on January 24, 2007.
2. The Option or any part thereof may, to the extent that it is
exercisable, be exercised in the manner provided in Article I, Section 6 of the
Plan by purchasing at least 100 shares then exercisable under the Option or, if
less, all of the shares then exercisable under the Option. Payment of the
aggregate option price for the number of shares purchased shall be made in the
manner provided in Section 6(d) of the Plan.
3. The Option Holder acknowledges that, upon any exercise of the
Option, he will recognize ordinary income for income tax purposes (generally in
an amount equal to the difference between
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the fair market value of the shares on the date of exercise and the option
price paid therefor) and the Company will be entitled to a corresponding
deduction. Consequently, the Option Holder agrees that he will pay, or make
arrangements to pay, to the Company, an amount equal to any income and other
taxes that the Company is required to withhold as a result of his exercise of
the Option. If for any reason such payment or arrangement to pay is not made,
the Company shall be entitled to withhold, from other sums payable to the
Option Holder, the amount of such income and other taxes.
4. The Option or any part thereof may be exercised only by the Option
Holder or by a subsequent holder in accordance with a permitted transfer under
Section 6(f) of the Plan. Upon any attempt to transfer, assign, pledge,
hypothecate or otherwise dispose of the Option or any right or privilege
confirmed hereby contrary to the provisions of Section 6(f) of the Plan, the
Option and the rights and privileges confirmed hereby shall immediately become
null and void.
5. The Option shall not be exercised in whole or in part, and no
certificates representing shares subject to the Option shall be delivered, if
any requisite approval or consent of any governmental authority having
jurisdiction over the exercise of options shall not have been secured or if the
issuance of shares subject to the Option would violate any Federal, state or
local law, regulation or order that may be applicable. The Company shall use
its best efforts to obtain any such approval or consent and to effect
compliance with any such applicable law, regulation or order, and the Option
Holder or any other person entitled to exercise the Option shall take action
reasonably requested by the Company in such connection.
6. Unless the shares to be purchased upon exercise of the Option
have been registered pursuant to the Securities Act of 1933 or under the
securities laws of any state, which registration shall be at the option of the
Company, the Option Holder agrees, for himself and any other person entitled to
exercise the Option or any part thereof as herein provided, that any and all
shares of Common Stock purchased upon exercise of the Option shall be acquired
for investment and not with a view to, or for sale in connection with, any
distribution thereof, and that, at the time he exercises all or any portion of
the Option, he will furnish to the Company such documentation as it shall
reasonably require in order to assure compliance with the Federal and state
securities laws as in effect at the time of said exercise. The Option Holder
consents to such other action as the Company deems necessary or appropriate in
order to assure compliance with said laws, including but not limited to placing
stop transfer instructions with the Company's stock transfer records. The
Option Holder acknowledges that, under present Federal securities regulations,
absent registration, he will be required to hold any shares purchased pursuant
to exercise of the Option for at least two years after full payment for those
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shares and that, thereafter, the shares may be sold only in compliance with
Rule 144 of the Securities and Exchange Commission, if Rule 144 is then
available for sale of the Common Stock. The Option Holder further acknowledges
that, notwithstanding registration, if he is deemed an "affiliate" of the
Company as defined in said Rule 144, those shares nevertheless may be sold only
in compliance with Rule 144 (but without any holding period). In connection
with a request to transfer any shares purchased pursuant to exercise of the
Option, the Company may refuse to transfer such shares absent an opinion of
counsel satisfactory to the Company to the effect that the transfer may be made
without compliance with the registration requirements of any applicable Federal
or state securities laws.
7. Any notice to be given to the Company shall be addressed to the
Vice-President - Finance of the Company at Second Floor, 0000 Xxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000.
8. Nothing herein contained shall affect the right of the Option
Holder to participate in and receive benefits under and in accordance with the
provisions of any pension, insurance or other benefit plan or program of the
Company as in effect from time to time and for which he is eligible.
9. Nothing herein contained shall affect the right of the Company,
subject to the terms of any existing contractual arrangement to the contrary,
to terminate the Option Holder's employment with the Company.
10. This Agreement shall be binding upon and inure to the benefit of
the Option Holder, his personal representatives, heirs and legatees, but
neither this Agreement nor any rights hereunder shall be assignable or
otherwise transferable by the Option Holder except as expressly set forth in
this Agreement or in the Plan.
CCAIR, INC.
Attest:
/s/ XXXX X. XXXXXXXXXXX By: /s/ XXXXXXX X. XXXX
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Xxxx X. Xxxxxxxxxx Xxxxxxx X. Xxxx
Secretary President
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