<PAGE>
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM 8-A/A
AMENDMENT NO. 1
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
MIDWAY GAMES INC.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 22-2906244
- --------------------------------------------------------------------------------
(State of incorporation or organization) (I.R.S. Employer Identification No.)
3401 NORTH CALIFORNIA AVENUE
CHICAGO, ILLINOIS 60618
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), please check the following box. [X]
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), please check the following box. [ ]
Securities Act registration statement file number to which this form relates:
____________
(if applicable)
Securities to be registered pursuant to Section 12(b) of the Act:
<TABLE>
<CAPTION>
Title of each class Name of each exchange on which
to be so registered each class is to be registered
------------------- ------------------------------
<S> <C>
COMMON STOCK, PAR VALUE $.01 PER SHARE NEW YORK STOCK EXCHANGE
STOCK PURCHASE RIGHTS PURSUANT NEW YORK STOCK EXCHANGE
TO STOCKHOLDER RIGHTS AGREEMENT
</TABLE>
Securities to be registered pursuant to Section 12(g) of the Act: NONE
<PAGE>
<PAGE>
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
The description of the Registrant's Common Stock, par value $.01 per
share, is incorporated by reference to the Registrant's Registration Statement
on Form S-1 filed with the Securities and Exchange Commission on September 13,
1996, as amended on October 4, 1996, October 18, 1996, October 25, 1996 and
October 29, 1996 (File No. 333-11919) (the "Form S-1"), under the heading
"Description of Capital Stock." The description of the Registrant's Stock
Purchase Rights, pursuant to the Rights Agreement dated as of October 24, 1996
between the Registrant and The Bank of New York, as rights agent (the "Rights
Agreement"), is incorporated by reference to the Registrant's definitive Proxy
Statement as filed with the Securities and Exchange Commission on December 12,
1997, under the heading "ANTI-TAKEOVER PROPOSALS - Other Anti-Takeover Devices
- -- Rights Agreement."
As of November 6, 1997, the Registrant amended the terms of the Rights
Agreement by entering into the First Amendment to Rights Agreement with The Bank
of New York, as rights agent. The Amendment modifies the Rights Agreement in the
following respects: (i) references to 10% of the Common Stock in Sections 1(a),
3(a) and 13(d) thereof were changed to references to 15% of the Common Stock,
thereby increasing the threshold at which a Person who is the Beneficial Owner
of Common Stock becomes an Acquiring Person; (ii) Section 1(h) was changed to
include in the definition of Exempt Person any Person who was the Beneficial
Owner of 15% or more of the outstanding shares of Common Stock at the close of
business on April 6, 1998, the date of the Registrant's spin-off from WMS
Industries Inc., so that any such person would not be deemed an Acquiring
Person; and (iii) Section 18 thereof was restated to correct a typographical
error.
The description of the amendments contained herein is not complete and
is qualified in its entirety by reference to the First Amendment to Rights
Agreement, which is filed as an exhibit hereto and which is incorporated by
reference herein. Capitalized terms used but not defined herein will have the
meanings ascribed to them in the Rights Agreement.
ITEM 2. EXHIBITS
1. Form of Amended and Restated Certificate of Incorporation of the
Registrant, incorporated herein by reference to Exhibit 3.1 to the Form
S-1.
2. Certificate of Amendment to the Amended and Restated Certificate of
Incorporation of the Registrant, as filed with the Secretary of State of
the State of Delaware on February 25, 1998.
3. Amended and Restated By-laws of the Registrant.
4. Rights Agreement, dated as of October 24, 1996, between the Registrant
and The Bank of New York, as Rights Agent, incorporated by reference to
Exhibit 2.1 to the Form S-1.
5. Form of Certificate of Designations of Series A Preferred Stock
(included as Exhibit A to Exhibit 4 hereof), incorporated herein by
reference to Exhibit 2.2 to the Form S-1.
<PAGE>
<PAGE>
6. Specimen Form of Rights Certificate (included as Exhibit B to Exhibit 4
hereof), incorporated herein by reference to Exhibit 2.3 to the Form
S-1.
7. Summary of Rights Plan (included as Exhibit C to Exhibit 4 hereof),
incorporated herein by reference to Exhibit 2.4 to the Form S-1.
8. First Amendment to Rights Agreement, dated as of November 6, 1997,
between the Registrant and The Bank of New York, as Rights Agent.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this registration statement
to be signed on its behalf by the undersigned, thereto duly authorized.
Dated: April 17, 1998
MIDWAY GAMES INC.
By:/s/ Orrin J. Edidin
-----------------------------------------------
Orrin J. Edidin
Vice President, Secretary and General Counsel
<PAGE>
<PAGE>
INDEX OF EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
<S> <C>
2. Certificate of Amendment to the Amended and Restated Certificate of
Incorporation of the Registrant, as filed with the Secretary of State
of the State of Delaware on February 25, 1998.
3. Amended and Restated By-laws of the Registrant.
8. First Amendment to Rights Agreement, dated as of November 6, 1997,
between the Registrant and The Bank of New York, as Rights Agent.
</TABLE>
<PAGE>
<PAGE>
EXHIBIT 2
CERTIFICATE OF AMENDMENT
OF THE CERTIFICATE OF INCORPORATION OF
MIDWAY GAMES INC.
-----------------
It is hereby certified that:
1. The name of the corporation is Midway Games Inc.
2. The certificate of incorporation of the corporation was filed by the
Department of State on July 15, 1988.
3. The amendments to the certificate of incorporation of the corporation
effected by this certificate of amendment are as follows:
(a) To provide for the classification of the Board of Directors into
three classes with staggered terms;
(b) To provide that any vacancy on the Board of Directors may be filled
for the unexpired term only by a vote of a majority of the remaining directors
then in office;
(c) To eliminate stockholder action by written consent;
(d) To permit only the President, the Chairman of the Board or the Board
of Directors to call special meetings of stockholders and to limit the business
permitted to be conducted at such meetings to that brought before the meetings
by or at the direction of the Board of Directors;
(e) To implement an advance notice procedure for the submission of
director nominations and other business to be considered at annual meetings of
stockholders; and
(f) To require an affirmative vote of 80% of the outstanding Common Stock
entitled to vote thereon in order to adopt, amend or repeal the new provisions
of the certificate of incorporation of the corporation added by this certificate
of amendment.
4. To accomplish the foregoing amendments, new Articles ELEVENTH, TWELFTH,
THIRTEENTH and FOURTEENTH are hereby added to the certificate of incorporation
of the corporation, to read as follows:
ELEVENTH: The directors shall be divided into three classes, designated
Class I, Class II and Class III. Each class shall consist, as nearly as may
be possible, of one-third of the total number of directors constituting the
entire Board of Directors. The term of the initial Class I directors shall
terminate on the date of the 2001 annual meeting of stockholders; the term
of the initial Class II directors shall terminate on the date of the 2000
annual meeting of stockholders; and the term of the initial Class III
directors shall terminate on the date of the 1999 annual meeting of
stockholders. At each annual meeting of stockholders beginning in 1999,
successors to the class of directors whose term expires at that annual
meeting shall be elected for a three-year term. If the number of directors
is changed, any increase or decrease in directorships shall be apportioned
among the classes so as to maintain the number of directors in each class as
nearly equal as possible, and any additional directors of any class elected
to fill a vacancy resulting from an increase in such class shall hold office
only until the next
<PAGE>
<PAGE>
election of directors of that class by the stockholders of the Corporation,
but in no case will a decrease in the number of directors shorten the term
of any incumbent director. Directors shall hold office until the annual
meeting for the year in which their terms expire and until their successors
shall be duly elected and shall qualify, subject, however, to prior death,
resignation, retirement, disqualification or removal from office.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Corporation shall have
the right, voting separately by class or series, to elect directors at an
annual or special meeting of stockholders, the election, term of office,
filling of vacancies and other features of such directorships shall be
governed by the terms of this Certificate of Incorporation, or the
resolution or resolutions adopted by the Board of Directors creating such
class or series, as the case may be, applicable thereto, and such directors
so elected shall not be divided into classes pursuant to this Article
ELEVENTH unless expressly provided by such terms.
For purposes of Section 141(k) of the General Corporation Law of the
State of Delaware, "Cause" is defined as being convicted of a felony by a
court of competent jurisdiction and such conviction is no longer subject to
direct appeal, or being adjudged to be liable for negligence or misconduct
in the performance of his or her duty to the Corporation by a court of
competent jurisdiction and such adjudication is no longer subject to direct
appeal.
Any vacancy on the Board of Directors, howsoever resulting, including
through an increase in the number of directors, shall only be filled by the
affirmative vote of a majority of the remaining directors then in office,
even if less than a quorum, or by the sole remaining director. Any director
elected to fill a vacancy shall hold office for the same remaining term as
that of his or her predecessor, or if such director was elected as a result
of an increase in the number of directors, then for the term indicated in
paragraph one of this Article ELEVENTH.
TWELFTH: Except as otherwise provided in the resolutions of the Board
of Directors designating any series of Preferred Stock, any action required
or permitted to be taken by the stockholders of the Corporation must be
effected at a duly called annual or special meeting of stockholders and may
not be effected by a consent in writing by any such stockholders.
Subject to the rights of holders of any class or series of Preferred
Stock, special meetings of stockholders may be called only by the Chairman
of the Board or President of the Corporation or by the Board of Directors
pursuant to a resolution adopted by a majority vote of the total number of
authorized directors (whether or not there exists any vacancies in
previously authorized directorships) at the time any such resolutions are
presented to the Board for adoption. Stockholders of the Corporation are not
permitted to call a special meeting or to require that the Board call a
special meeting of stockholders. The business permitted at any special
meeting of stockholders shall be limited to the business brought before the
meeting by or at the direction of the Board.
THIRTEENTH: Subject to the rights of holders of any class or series of
Preferred Stock,
(i) nominations for the election of directors, and
(ii) business proposed to be brought before an annual meeting of
stockholders
may be made by the Board of Directors or proxy committee appointed by the
Board of Directors or by any stockholder entitled to vote in the election of
directors generally. However, any such stockholder may nominate one or more
persons for election as directors at an annual meeting or propose business
to be brought before an annual meeting, or both, only if such stockholder
has given timely notice in proper written form of his or her intent to make
such nomination or nominations or to propose such business. To be timely, a
stockholder's notice must be delivered to or mailed and received by the
Secretary of the Corporation not less than 60 days nor more
<PAGE>
<PAGE>
than 90 days prior to the annual meeting; provided, however, that in the
event that less than 70 days notice or prior public disclosure of the date
of the annual meeting is given or made to stockholders, notice by a
stockholder, to be timely, must be received no later than the close of
business on the tenth day following the date on which such notice of the
date of the annual meeting was made or such public disclosure was made,
whichever first occurs. To be in proper written form, a stockholder's
notice to the Secretary shall set forth:
(a) the name and address of the stockholder who intends to make the
nominations or propose the business and, as the case may be, of the person
or persons to be nominated or of the business to be proposed;
(b) a representation that the stockholder is a holder of record of
stock of the Corporation entitled to vote at such meeting and, if
applicable, intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice;
(c) if applicable, a description of all arrangements or understandings
between the stockholder and each nominee and any other person or persons
(naming such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder;
(d) such other information regarding each nominee or each matter of
business to be proposed by such stockholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission had the nominee been nominated, or
intended to be nominated, or the matter been proposed, or intended to be
proposed, by the Board of Directors, and such other information about the
nominee as the Board of Directors deems appropriate, including, without
limitation, the nominee's age, business and residence addresses, principal
occupation and the class and number of shares of Common Stock beneficially
owned by the nominee, or such other information about the business to be
proposed and about the stockholder making such business proposal before the
annual meeting as the Board of Directors deems appropriate, including,
without limitation, the class and number of shares of Common Stock
beneficially owned by such stockholder; and
(e) if applicable, the consent of each nominee to serve as director of
the Corporation if so elected.
The chairman of the meeting may refuse to acknowledge the nomination of
any person or the proposal of any business not made in compliance with the
foregoing procedure.
FOURTEENTH: Notwithstanding anything contained in the Certificate of
Incorporation or the by-laws of this Corporation to the contrary (and
notwithstanding the fact that a lesser percentage or separate class vote may
be specified by law, this Certificate of Incorporation, the by-laws of this
Corporation or any common stock or preferred stock designation), Articles
ELEVENTH, TWELFTH and THIRTEENTH hereby shall not be altered, amended or
repealed, and no provision inconsistent therewith shall be adopted, without
the affirmative vote of the holders of at least eighty percent (80%) of the
voting power of all the outstanding stock of the Corporation entitled to
vote generally in the election of directors, voting together as a single
class. Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at
least eighty percent (80%) of the voting power of all the stock of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required to alter, amend or adopt any
provision inconsistent with or repeal this Article FOURTEENTH.
5. The foregoing amendment of the certificate of incorporation of the
corporation was duly adopted in accordance with the provisions of Section 242 of
the General Corporation Law of the State of Delaware.
<PAGE>
<PAGE>
IN WITNESS WHEREOF, I have subscribed this document on the date set forth
below and do hereby affirm, under the penalties of perjury, that this document
is the act and deed of the corporation named therein and that the facts stated
herein are true.
Dated: February 23, 1998 /s/ Orrin J. Edidin
---------------------
Orrin J. Edidin, Secretary
<PAGE>
<PAGE>
AMENDED AND RESTATED
BY-LAWS
OF
MIDWAY GAMES INC.
(Formed under the laws of the State of Delaware)
-----------
ARTICLE I
STOCKHOLDERS
SECTION 1. ANNUAL MEETING. A meeting of the stockholders shall be held
annually for the election of directors and the transaction of other business on
such date in each year as may be determined by the Board of Directors.
SECTION 2. SPECIAL MEETINGS. Subject to the rights of holders of any
class or series of Preferred Stock, special meetings of stockholders may be
called only by the Chairman of the Board or President of the Corporation or by
the Board of Directors pursuant to a resolution adopted by a majority vote of
the total number of authorized directors (whether or not there exists any
vacancies in previously authorized directorships) at the time any such
resolutions are presented to the Board for adoption. Stockholders of the
Corporation are not permitted to call a special meeting or to require that the
Board call a special meeting of stockholders. The business permitted at any
special meeting of stockholders shall be limited to the business brought before
the meeting by or at the direction of the Board.
SECTION 3. PLACE OF MEETINGS. Meetings of stockholders shall be held at
such place, within or without the State of Delaware, as may be fixed by the
Board of Directors. If no place is so fixed, such meetings shall be held at the
office of the Corporation in the State of Delaware.
SECTION 4. NOTICE OF MEETINGS. Notice of each meeting of stockholders
shall be given in writing and shall state the place, date and hour of the
meeting and, in the case of a special meeting, the purpose or purposes for which
the meeting is called. Notice of a special meeting shall indicate that it is
being issued by or at the direction of the person or persons calling or
requesting the meeting.
If, at any meeting, action is proposed to be taken which would, if
taken, entitle objecting stockholders to receive payment for their shares, the
notice shall include a statement of that purpose and to that effect.
A copy of the notice of each meeting shall be given, personally or by
first class mail, not less than 10 nor more than 60 days before the date of the
meeting to each stockholder entitled to vote at such meeting. If mailed, such
notice is given when deposited in the United States mail, with postage thereon
prepaid, directed to the stockholder at his address as it appears on the record
of stockholders. In the event of a change of address, he shall file with the
Secretary of the Corporation a written request that his address be changed in
the records of the Corporation, in which event notices to him shall be directed
to him at such other address.
When a meeting is adjourned to another time or place, it shall not be
necessary to give any notice of the adjourned meeting if the time and place to
which the meeting is adjourned are announced at the meeting at which the
adjournment is taken, and at the adjourned meeting any business may be
transacted that might have been transacted on
<PAGE>
<PAGE>
the original date of the meeting. However, if after the adjournment the Board of
Directors fixes a new record date for the adjourned meeting, or if the adjourned
meeting is more than 30 days after the adjournment, a notice of the adjourned
meeting shall be given to each stockholder of record on the new record date
entitled to notice under the preceding paragraphs of this Section 4.
SECTION 5. WAIVER OF NOTICE. Notice of a meeting need not be given to
any stockholder who submits a signed waiver of notice, in person or by proxy,
whether before or after the meeting. The attendance of any stockholder at a
meeting, in person or by proxy, without protesting prior to the conclusion of
the meeting the lack of notice of such meeting, shall constitute a waiver of
notice by him.
SECTION 6. INSPECTORS OF ELECTION. The Board of Directors, in advance
of any stockholders' meeting, may appoint one or more inspectors to act at the
meeting or any adjournment thereof. If inspectors are not so appointed, the
person presiding at a stockholders' meeting may, and on the request of any
stockholder entitled to vote thereat shall, appoint two inspectors. In case any
person appointed fails to appear or act, the vacancy may be filled by
appointment made by the Board in advance of the meeting or at the meeting by the
person presiding thereat. Each inspector, before entering upon the discharge of
his duties, shall take and sign an oath faithfully to execute the duties of
inspector at such meeting with strict impartiality and according to the best of
his ability.
The inspectors shall determine the number of shares outstanding and the
voting power of each, the shares represented at the meeting, the existence of a
quorum, and the validity and effect of proxies, and shall receive votes, ballots
or consents, hear and determine all challenges and questions arising in
connection with the right to vote, count and tabulate all votes, ballots or
consents, determine the result, and do such acts as are proper to conduct the
election or vote with fairness to all stockholders. On request of the person
presiding at the meeting or any stockholder entitled to vote thereat, the
inspectors shall make a report in writing of any challenge, question or matter
determined by them and execute a certificate of any fact found by them. Any
report or certificate made by them shall be prima facie evidence of the facts
stated and of the vote as certified by them.
SECTION 7. LIST OF STOCKHOLDERS AT MEETINGS. A list of stockholders as
of the record date, certified by the Secretary or Assistant Secretary or by a
transfer agent, shall be prepared at least 10 days prior to each meeting. Such
list shall be open to the examination of any stockholder for purposes germane to
the meeting and may be inspected by any stockholder who is present. If the right
to vote at any meeting is challenged, the inspectors of election, or person
presiding thereat, shall require such list of stockholders to be produced as
evidence of the right of the persons challenged to vote at such meeting, and all
persons who appear from such list to be stockholders entitled to vote thereat
may vote at such meeting.
SECTION 8. QUALIFICATION OF VOTERS. Unless otherwise provided in the
Certificate of Incorporation, every stockholder of record shall be entitled at
every meeting of stockholders to one vote for every share standing in his name
on the record of stockholders.
Treasury shares as of the record date and shares held as of the record
date by another domestic or foreign corporation of any type or kind, if a
majority of the shares entitled to vote in the election of directors of such
other corporation is held as of the record date by the Corporation, shall not be
shares entitled to vote or to be counted in determining the total number of
outstanding shares.
Shares held by an administrator, executor, guardian, conservator,
committee, trustee or other fiduciary, may be voted by him, either in person or
by proxy, without transfer of such shares into his name.
Shares standing in the name of another domestic or foreign corporation
of any type or kind may be voted by such officer, agent or proxy as the by-laws
of such corporation may provide, or, in the absence of such provision, as the
board of directors of such corporation may determine.
<PAGE>
<PAGE>
A stockholder shall not sell his vote or issue a proxy to vote to any
person for any sum of money or anything of value except as permitted by law.
SECTION 9. QUORUM OF STOCKHOLDERS. The holders of a majority of the
shares entitled to vote thereat shall constitute a quorum at a meeting of
stockholders for the transaction of any business, provided that when a specified
item of business is required to be voted on by a class or series, voting as a
class, the holders of a majority of the shares of such class or series shall
constitute a quorum for the transaction of such specified item of business.
When a quorum is once present to organize a meeting, it is not broken
by the subsequent withdrawal of any stockholders.
The stockholders who are present, in person or by proxy, and who are
entitled to vote may, by a majority of votes cast, adjourn the meeting despite
the absence of a quorum.
SECTION 10. PROXIES. Every stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent without a meeting may authorize
another person or persons to act for him by proxy.
Every proxy must be signed by the stockholder or his attorney-in-fact.
No proxy shall be valid after the expiration of three years from the date
thereof unless otherwise provided in the proxy. Every proxy shall be revocable
at the pleasure of the stockholder executing it, except as otherwise provided by
law.
Except as otherwise required by applicable law, the authority of the
holder of a proxy to act shall not be revoked by the incompetence or death of
the stockholder who executed the proxy unless before the authority is exercised,
written notice of an adjudication of such incompetence or of such death is
received by the Secretary or any Assistant Secretary.
SECTION 11. VOTE OR CONSENT OF STOCKHOLDERS. Directors shall, except as
otherwise required by law, be elected by a plurality of the votes cast at a
meeting of stockholders by the holders of shares entitled to vote in the
election.
Whenever any corporate action, other than the election of directors, is
to be taken by vote of stockholders, it shall, except as otherwise required by
these By-laws, the Certificate of Incorporation or by law, be authorized by a
majority of the votes cast at a meeting of stockholders by the holders of shares
entitled to vote thereon.
Except as otherwise provided in the resolutions of the Board of
Directors designating any series of Preferred Stock, any action required or
permitted to be taken by the stockholders of the Corporation must be effected at
a duly called annual or special meeting of stockholders and may not be effected
by a consent in writing by any such stockholders.
SECTION 12. FIXING RECORD DATE. For the purpose of determining the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to or dissent from any proposal
without a meeting, or for the purpose of determining stockholders entitled to
receive payment of any dividend or the allotment of any rights, or for the
purpose of any other action, the Board of Directors may fix, in advance, a date
as the record date for any such determination of stockholders. Such date shall
not be more than 60 nor less than 10 days before the date of such meeting, nor
more than 60 days prior to any other action.
When a determination of stockholders of record entitled to notice of or
to vote at any meeting of stockholders has been made as provided in this
section, such determination shall apply to any adjournment thereof, unless the
Board of Directors fixes a new record date for the adjourned meeting.
<PAGE>
<PAGE>
SECTION 13. ADVANCE NOTICE PROCEDURE. Subject to the rights of holders
of any class or series of Preferred Stock,
(1) nominations for the election of directors, and
(2) business proposed to be brought before an annual meeting of
stockholders may be made by the Board of Directors or proxy committee appointed
by the Board of Directors or by any stockholder entitled to vote in the election
of directors generally. However, any such stockholder may nominate one or more
persons for election as directors at an annual meeting or propose business to be
brought before an annual meeting, or both, only if such stockholder has given
timely notice in proper written form of his or her intent to make such
nomination or nominations or to propose such business. To be timely, a
stockholder's notice must be delivered to or mailed and received by the
Secretary of the Corporation not less than 60 days nor more than 90 days prior
to the annual meeting; provided, however, that in the event that less than 70
days notice or prior public disclosure of the date of the annual meeting is
given or made to stockholders, notice by a stockholder, to be timely, must be
received no later than the close of business on the tenth day following the date
on which such notice of the date of the annual meeting was made or such public
disclosure was made, whichever first occurs. To be in proper written form, a
stockholder's notice to the Secretary shall set forth:
(a) the name and address of the stockholder who intends to make
the nominations or propose the business and, as the case may be, of the person
or persons to be nominated or of the business to be proposed;
(b) a representation that the stockholder is a holder of record of
stock of the Corporation entitled to vote at such meeting and, if applicable,
intends to appear in person or by proxy at the meeting to nominate the person or
persons specified in the notice;
(c) if applicable, a description of all arrangements or
understandings between the stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder;
(d) such other information regarding each nominee or each matter
of business to be proposed by such stockholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission had the nominee been nominated, or intended
to be nominated, or the matter been proposed, or intended to be proposed, by the
Board of Directors, and such other information about the nominee as the Board of
Directors deems appropriate, including, without limitation, the nominee's age,
business and residence addresses, principal occupation and the class and number
of shares of Common Stock beneficially owned by the nominee, or such other
information about the business to be proposed and about the stockholder making
such business proposal before the annual meeting as the Board of Directors deems
appropriate, including, without limitation, the class and number of shares of
Common Stock beneficially owned by such stockholder; and
(e) if applicable, the consent of each nominee to serve as
director of the Corporation if so elected.
The chairman of the meeting may refuse to acknowledge the nomination of
any person or the proposal of any business not made in compliance with the
foregoing procedure.
<PAGE>
<PAGE>
ARTICLE II
BOARD OF DIRECTORS
SECTION 1. POWER OF BOARD AND QUALIFICATION OF DIRECTORS. The business
of the Corporation shall be managed by the Board of Directors. Each director
shall be at least 18 years of age.
SECTION 2. NUMBER OF DIRECTORS. The number of directors constituting
the entire Board of Directors shall be the number, not less than one nor more
than 15, fixed from time to time by a majority of the total number of directors
which the Corporation would have, prior to any increase or decrease, if there
were no vacancies, provided, however, that no decrease shall shorten the term of
an incumbent director. Until otherwise fixed by the directors, the number of
directors constituting the entire Board shall be ten.
SECTION 3. ELECTION AND TERM OF DIRECTORS. Effective as of January 27,
1998, the directors shall be divided into three classes, designated Class I,
Class II and Class III. Each class shall consist, as nearly as may be possible,
of one-third of the total number of directors constituting the entire Board of
Directors. The term of the initial Class I directors shall terminate on the date
of the 2001 annual meeting of stockholders; the term of the initial Class II
directors shall terminate on the date of the 2000 annual meeting of
stockholders; and the term of the initial Class III directors shall terminate on
the date of the 1999 annual meeting of stockholders. At each annual meeting of
stockholders beginning in 1999, successors to the class of directors whose term
expires at that annual meeting shall be elected for a three-year term. If the
number of directors is changed, any increase or decrease in directorships shall
be apportioned among the classes so as to maintain the number of directors in
each class as nearly equal as possible, and any additional directors of any
class elected to fill a vacancy resulting from an increase in such class shall
hold office only until the next election of directors of that class by the
stockholders of the Corporation, but in no case will a decrease in the number of
directors shorten the term of any incumbent director. Directors shall hold
office until the annual meeting for the year in which their terms expire and
until their successors shall be duly elected and shall qualify, subject,
however, to prior death, resignation, retirement, disqualification or removal
from office.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Corporation shall have the
right, voting separately by class or series, to elect directors at an annual or
special meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of the Certificate of Incorporation or the resolution or resolutions
adopted by the Board of Directors creating such class or series, as the case may
be, applicable thereto, and such directors so elected shall not be divided into
classes pursuant to this Section 3 of this Article II unless expressly provided
by such terms.
SECTION 4. QUORUM OF DIRECTORS AND ACTION BY THE BOARD. A majority of
the entire Board of Directors shall constitute a quorum for the transaction of
business, and, except where otherwise provided by these By-laws, the vote of a
majority of the directors present at a meeting at the time of such vote, if a
quorum is then present, shall be the act of the Board.
Any action required or permitted to be taken by the Board of Directors
or any committee thereof may be taken without a meeting if all members of the
Board or the committee consent in writing to the adoption of a resolution
authorizing the action. The resolution and the written consent thereto by the
members of the Board or committee shall be filed with the minutes of the
proceedings of the Board or committee.
SECTION 5. MEETINGS OF THE BOARD. An annual meeting of the Board of
Directors shall be held in each year directly after the annual meeting of
stockholders. Regular meetings of the Board shall be held at such times as may
be fixed by the Board. Special meetings of the Board may be held at any time
upon the call of the President or any two directors.
<PAGE>
<PAGE>
Meetings of the Board of Directors shall be held at such places as may
fixed by the Board for annual and regular meetings and in the notice of meeting
for special meetings. If no place is so fixed, meetings of the Board shall be
held at the office of the Corporation.
No notice need be given of annual or regular meetings of the Board of
Directors. Notice of each special meeting of the Board shall be given to each
director either by mail not later than noon, Eastern time, on the third day
prior to the meeting or by telegram, written message or orally to the director
not later than noon, Eastern time, on the day prior to the meeting. Notices are
deemed to have been given: by mail, when deposited in the United States mail; by
telegram at the time of filing; and by messenger at the time of delivery.
Notices by mail, telegram or messenger shall be sent to each director at the
address designated by him for that purpose, or, if none has been so designated,
at his last known residence or business address.
Notice of a meeting of the Board of Directors need not to be given to
any director who submits a signed waiver of notice whether before or after the
meeting, or who attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice to him.
A notice, or waiver of notice, need not specify the purpose of any
meeting of the Board of Directors.
A majority of the directors present, whether or not a quorum is
present, may adjourn any meeting to another time and place. Notice of any
adjournment of a meeting to another time or place shall be given, in the manner
described above, to the directors who were not present at the time of the
adjournment and, unless such time and place are announced at the meeting, to the
other directors.
SECTION 6. RESIGNATIONS. Any director of the Corporation may resign at
any time by giving written notice to the Board of Directors or to the President
or to the Secretary of the Corporation. Such resignation shall take effect at
the time specified therein; and unless otherwise specified therein the
acceptance of such resignation shall not be necessary to make it effective.
SECTION 7. REMOVAL OF DIRECTORS. Any or all of the directors may be
removed with cause by vote of the stockholders. For purposes of Section 141(k)
of the General Corporation Law of the State of Delaware, "cause" is defined as
being convicted of a felony by a court of competent jurisdiction and such
conviction is no longer subject to direct appeal, or being adjudged to be liable
for negligence or misconduct in the performance of his or her duty to the
Corporation by a court of competent jurisdiction and such adjudication is no
longer subject to direct appeal.
SECTION 8. NEWLY CREATED DIRECTORSHIPS AND VACANCIES. Any vacancy on
the Board of Directors, howsoever resulting, including through an increase in
the number of directors, shall only be filled by the affirmative vote of a
majority of the remaining directors then in office, even if less than a quorum,
or by the sole remaining director. Any director elected to fill a vacancy shall
hold office for the same remaining term as that of his or her predecessor, or if
such director was elected as a result of an increase in the number of directors,
then for the term indicated in Section 3 of Article II of these By-laws.
SECTION 9. EXECUTIVE AND OTHER COMMITTEES OF DIRECTORS. The Board of
Directors, by resolution adopted by a majority of the entire Board, may
designate from among its members an executive committee and other committees
each consisting of one or more directors and each of which, to the extent
provided in the resolution, shall have all the authority of the Board, except
that no such committee shall have authority as to the following matters:
(1) The submission to stockholders of any action that needs
stockholders' approval;
(2) The amendment of the Certificate of Incorporation;
<PAGE>
<PAGE>
(3) The filling of vacancies in the Board or in any committee;
(4) The fixing of compensation of the directors for serving on the
Board or on any committee;
(5) The amendment or repeal of the By-laws, or the adoption of new
By-laws;
(6) The amendment or repeal of any resolution of the Board which,
by its terms, shall not be so amendable or repealable; or
(7) The removal or indemnification of directors; or unless the
resolution, these By-laws or the Certificate of Incorporation otherwise provide:
(a) The declaration of a dividend;
(b) The issuance of stock; or
(c) The adoption of a certificate of ownership and merger
pursuant to Section 253 of the General Corporation Law.
The Board of Directors may designate one or more directors as alternate
members of any such committee, who may replace any absent member or members at
any meeting of such committee.
Unless a greater proportion is required by the resolution designating a
committee, a majority of the entire authorized number of members of such
committee shall constitute a quorum for the transaction of business, and the
vote of a majority of the members present at a meeting at the time of such vote,
if a quorum is then present, shall be the act of such committee.
Each such committee shall serve at the pleasure of the Board of
Directors.
SECTION 10. COMPENSATION OF DIRECTORS. The Board of Directors shall
have authority to fix the compensation of directors for services in any
capacity.
ARTICLE III
OFFICERS
SECTION 1. OFFICERS. The Board of Directors, as soon as may be
practicable after the annual election of directors, shall elect a Chairman of
the Board, President, a Secretary and a Treasurer, and from time to time may
elect or appoint one or more Vice Presidents or such other officers as it may
determine. Any two or more offices may be held by the same person.
SECTION 2. OTHER OFFICERS. The Board of Directors may appoint such
other officers and agents as it shall deem necessary who shall hold their
offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board.
SECTION 3. COMPENSATION. The salaries of all officers and agents of the
Corporation shall be fixed by the Board of Directors.
SECTION 4. TERM OF OFFICE AND REMOVAL. Each officer shall hold office
for the term for which he is elected
<PAGE>
<PAGE>
or appointed, and until his successor has been elected or appointed and
qualified. Unless otherwise provided in the resolution of the Board of Directors
electing or appointing an officer, his term of office shall extend to and expire
at the meeting of the Board following the next annual meeting of stockholders.
Any officer may be removed by the Board, with or without cause, at any time.
Removal of an officer without cause shall be without prejudice to his contract
rights, if any, and the election or appointment of an officer shall not of
itself create contract rights.
SECTION 5. POWER AND DUTIES.
(a) Chairman of the Board: The Chairman of the Board shall be the
chief executive officer of the Corporation, shall have general and active
management of the business of the Corporation and shall see that all orders and
resolutions of the Board of Directors are carried into effect. He shall also
preside at all meetings of the stockholders and the Board of Directors.
He shall execute bonds, mortgages and other contracts requiring a
seal, under the seal of the Corporation, except where required or permitted by
law to be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the Board of Directors to some
other officer or agent of the Corporation. The Chairman of the Board shall
counsel freely with the President and shall exercise such other powers, shall
perform such other duties and have such other responsibilities as may be given
from time to time by the Board of Directors or the By-laws of the Corporation.
(b) President: The President shall be the chief operating officer
of the Corporation. He shall have responsibility for general operation of the
business of the Corporation and shall see that all orders and resolutions of the
Board of Directors are carried in effect. In the absence of the Chairman of the
Board or in the event of his inability or refusal to act, the President shall
perform the duties and exercise the powers of the Chairman of the Board. The
President shall perform such other duties and have such other responsibilities
as from time to time may be determined by the Board of Directors.
(c) Vice Presidents: The Vice Presidents, in the order designated
by the Board of Directors, or in the absence of any designation, then in the
order of their election, during the absence or disability of or refusal to act
by the President, shall perform the duties and exercise the powers of the
President, and shall perform such other duties as the Board of Directors shall
prescribe.
(d) Secretary and Assistant Secretaries: The Secretary shall
attend all meetings of the Board of Directors and all meetings of the
stockholders and record all the proceedings of the meetings of the Corporation
and of the Board of Directors in a book to be kept for that purpose and shall
perform like duties for the standing committees when required. He shall give, or
cause to be given, notice of all meetings of the stockholders and special
meetings of the Board of Directors, and shall perform such other duties as may
be prescribed by the Board of Directors or President, under whose supervision he
shall be. He shall have custody of the corporate seal of the Corporation and he,
or an Assistant Secretary, shall have authority to affix the same to any
instrument requiring it and when so affixed, it may be attested by his signature
or by the signature of such Assistant Secretary. The Board of Directors may give
general authority to any other officer to affix the seal of the Corporation and
to attest the affixing by his signature.
The Assistant Secretary, or if there be more than one, the
Assistant Secretaries in the order determined by the Board of Directors (or if
there be no such determination, then in the order of their election), shall, in
the absence of the Secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the Secretary and shall perform
such other duties and have such other powers as the Board of Directors may from
time to time prescribe.
(e) Treasurer and Assistant Treasurers: The Treasurer shall have
the custody of the corporate funds and securities and shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
Corporation
<PAGE>
<PAGE>
and shall deposit all moneys and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the Board
of Directors.
He shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, taking proper vouchers for such disbursements, and
shall render to the President and the Board of Directors, at its regular
meetings, or when the Board of Directors so requires, an account of all his
transactions as Treasurer and of the financial condition of the Corporation.
If required by the Board of Directors, he shall give the
Corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging
to the Corporation.
The Assistant Treasurer, or if there shall be more than one, the
Assistant Treasurers in the order determined by the Board of Directors (or of
there be no such determination, then in the order of their election), shall, in
the absence of the Treasurer or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the Treasurer and shall perform
such other duties and have such other powers as the Board of Directors may from
time to time prescribe.
SECTION 6. BOOKS TO BE KEPT. The Corporation shall keep (a) correct and
complete books and records of account, (b) minutes of the proceedings of the
stockholders, Board of Directors and any committees of directors, and (c) a
current list of the directors and officers and their residence addresses; and
the Corporation shall also keep at its office or at the office of its transfer
agent or registrar, if any, a record containing the names and addresses of all
stockholders, the number and class of shares held by each and the dates when
they respectively became the owners of record thereof.
The Board of Directors may determine whether and to what extent and at
what times and places and under what conditions and regulations any accounts,
books, records or other documents of the Corporation shall be open to
inspection, and no creditor, security holder or other person shall have any
right to inspect any accounts, books, records or other documents of the
Corporation except as conferred by statute or as so authorized by the Board.
SECTION 7. CHECKS, NOTES, ETC. All checks and drafts on, and
withdrawals from the Corporation's accounts with banks or other financial
institutions, and all bills of exchange, notes and other instruments for the
payment of money, drawn, made, endorsed, or accepted by the Corporation, shall
be signed on its behalf by the person or persons thereunto authorized by, or
pursuant to resolution of, the Board of Directors.
ARTICLE IV
FORMS OF CERTIFICATES AND LOSS
AND TRANSFER OF SHARES
SECTION 1. FORMS OF SHARE CERTIFICATES. The shares of the Corporation
shall be represented by certificates, in such forms as the Board of Directors
may prescribe, signed by the Chairman of the Board, President or a Vice
President and the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer, and may be sealed with the seal of the Corporation or a
facsimile thereof. The signatures of the officers upon a certificate may be
facsimiles if the certificate is countersigned by a transfer agent or registered
by a registrar other than the Corporation or its employee. In case any officer
who has signed or whose facsimile signature has been placed upon a certificate
shall have
<PAGE>
<PAGE>
ceased to be such officer before such certificate is issued, it may be issued by
the Corporation with the same effect as if he were such officer at the date of
issue.
Each certificate representing shares issued by the Corporation shall
set forth upon the face or back of the certificate, or shall state that the
Corporation will furnish to any stockholder upon request and without charge, a
full statement of the designation, relative rights, preferences and limitations
of the shares of each class of shares, if more than one, authorized to be issued
and the designation, relative rights, preferences and limitations of each series
of any class of preferred shares authorized to be issued so far as the same have
been fixed, and the authority of the Board of Directors to designate and fix the
relative rights, preferences and limitations of other series.
Each certificate representing shares shall state upon the face thereof:
(1) That the Corporation is formed under the laws of the State of
Delaware;
(2) The name of the person or persons to whom issued; and
(3) The number and class of shares, and the designation of the series,
if any, which such certificate represents.
SECTION 2. TRANSFERS OF SHARES. Shares of the Corporation shall be
transferable on the record of stockholders upon presentment to the Corporation
or a transfer agent of a certificate or certificates representing the shares
requested to be transferred, with proper endorsement on the certificate or on a
separate accompanying document, together with such evidence of the payment of
transfer taxes and compliance with other provisions of law as the Corporation or
its transfer agent may require.
SECTION 3. LOST, STOLEN OR DESTROYED SHARE CERTIFICATES. No certificate
for shares of the Corporation shall be issued in place of any certificate
alleged to have been lost, destroyed or wrongfully taken, except, if and to the
extent required by the Board of Directors, upon:
(1) Production of evidence of loss, destruction or wrongful taking;
(2) Delivery of a bond indemnifying the Corporation and its agents
against any claim that may be made against it or them on account of the alleged
loss, destruction or wrongful taking of the replaced certificate or the issuance
of the new certificate;
(3) Payment of the expenses of the Corporation and its agents incurred
in connection with the issuance of the new certificate; and
(4) Compliance with such other reasonable requirements as may be
imposed.
ARTICLE V
OTHER MATTERS
SECTION 1. CORPORATE SEAL. The Board of Directors may adopt a corporate
seal, alter such seal at pleasure, and authorize it to be used by causing it or
a facsimile to be affixed or impressed or reproduced in any other manner.
SECTION 2. FISCAL YEAR. The fiscal year of the Corporation shall be the
12 months ending June 30 or such other period as may be fixed by the Board of
Directors.
<PAGE>
<PAGE>
SECTION 3. AMENDMENTS. In furtherance, and not in limitation of the
powers conferred by statute, the Board of Directors is expressly authorized to
make, alter, amend, change, add to or repeal the By-laws of the Corporation and
shall have the right (which, to the extent exercised, shall be exclusive) to
establish the rights, powers, duties, rules and procedures that from time to
time shall govern the Board of Directors and each of its members, including,
without limitation, the vote required for any action by the Board of Directors,
and that from time to time shall affect the directors' powers to manage the
business and affairs of the Corporation, provided that such By-laws are not
inconsistent with the General Corporation Law of the State of Delaware or the
Restated Certificate of Incorporation, as amended, and such By-laws relate to
the business of the Corporation, the conduct of its affairs, and its rights or
powers or the rights or powers of its stockholders, directors, officers or
employees. In addition, the By-laws of the Corporation may be adopted, repealed,
altered, amended or rescinded by the affirmative vote of eighty percent (80%) of
the outstanding stock of the Corporation entitled to vote thereon, provided that
such By-laws are not inconsistent with the General Corporation Law of the State
of Delaware or the Certificate of Incorporation, and such By-laws relate to the
business of the Corporation, the conduct of its affairs, and its rights or
powers, or the rights or powers of its stockholders, directors, officers or
employees. In addition to the powers and authority hereinbefore or by statute
expressly conferred upon them, the directors are hereby empowered to exercise
all such powers and do all such acts and things as may be exercised or done by
the Corporation, subject, nevertheless, to the provisions of the General
Corporation Law of the State of Delaware, the Certificate of Incorporation, and
any By-laws adopted by the stockholders; provided, however, that no By-laws
hereafter adopted by the stockholders shall invalidate any prior act of the
directors which would have been valid if such By-laws had not been adopted.
If any By-law regulating an impending election of directors is made,
altered, amended, changed, added or repealed by the Board of Directors, there
shall be set forth in the notice of the next meeting of stockholders for the
election of directors the By-law so made, altered, amended, changed or repealed,
together with a concise statement of the changes made.
<PAGE>
<PAGE>
EXHIBIT 8
FIRST AMENDMENT TO RIGHTS AGREEMENT
This agreement is entered into as of the 6th day of November, 1997
between Midway Games Inc., a Delaware corporation ("Midway"), and The Bank of
New York, a New York banking corporation (the "Rights Agent").
WHEREAS, WMS Industries Inc. ("WMS") has announced a proposed
distribution of all of the shares of Midway common stock, par value $.01 per
share, owned by WMS to the stockholders of WMS (the "Distribution"); and
WHEREAS, Midway and the Rights Agent are parties to a Rights Agreement
dated as of October 24, 1996 (the "Rights Agreement").
NOW THEREFORE, in consideration of the foregoing, subject to and
effective upon the completion by WMS of the Distribution, the parties hereby
agree as follows:
1. Capitalized terms as used herein and not otherwise defined shall have
the same meaning ascribed to such terms in the Rights Agreement.
2. Section 1(a) of the Rights Agreement shall be amended and restated to
read as follows:
(a) "Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall be
the Beneficial Owner of 15% or more of shares of Common Stock then
outstanding, but shall not include an Exempt Person.
3. Section 1(h) of the Rights Agreement shall be amended and restated to
read as follows:
(h) "Exempt Person" shall mean (i) the Company, any Subsidiary
of the Company, WMS Industries Inc. and any of its Affiliates and
Associates ("WMS"), any employee benefit plan of the Company or of any
Subsidiary of the Company, or any Person or entity organized, appointed
or established by the Company for or pursuant to the terms of any such
plan; or (ii) any Person who is the Beneficial Owner of 15% or more of
the outstanding shares of Common Stock at the close of business on the
date of the completion of the distribution of all of the shares of
Midway common stock, par value $.01 per share, owned by WMS Industries
Inc. to the stockholders of WMS Industries Inc.; or (iii) any Person
who inadvertently acquired Beneficial Ownership of 15% or more of the
outstanding shares of Common Stock or otherwise acquired Beneficial
Ownership of shares of Common Stock without any plan or intention to
seek control of the Company and without knowledge that such acquisition
would make such Person an Acquiring Person, if, in either case, such
Person promptly divests (without exercising or retaining any power,
including voting, with respect to such shares) a sufficient number of
shares of Common Stock (or securities convertible into Common Stock) so
that such Person ceases to be the Beneficial Owner of a number of
shares of Common Stock that would otherwise cause such Person to be an
Acquiring Person, after notice by the Company (or, after the first
Stock Acquisition Date, after notice by a majority of the Continuing
Directors) that such Person will be
<PAGE>
<PAGE>
deemed by the Company to be an Acquiring Person unless it makes such
divestitures; or (iv) any Person whose Beneficial Ownership of 15% or
more of the outstanding shares of Common Stock is approved in advance
(but only to the extent of Beneficial Ownership which is so approved)
by the Board of Directors of the Company or, after the first Stock
Acquisition Date, by a majority of the Continuing Directors;
4. Section 3(a) of the Rights Agreement shall be amended and restated to
read as follows:
(a) Until the earlier of (i) the Close of Business on the
tenth day after the Stock Acquisition Date or (ii) the Close of
Business on the tenth Business Day (or such later day as may be
determined by action of the Board of Directors (but only if at the time
of such determination there are then in office not less than two
Continuing Directors and such action is approved by a majority of the
Continuing Directors) prior to such time as any Person becomes an
Acquiring Person) after the date of commencement by any Person (other
than an Exempt Person) of, or of the first public announcement of the
intention of any Person (other than an Exempt Person) to commence, a
tender or exchange offer, if upon consummation thereof, such Person
would be the Beneficial Owner of 15% or more of the Common Stock then
outstanding (the earlier of (i) and (ii) being herein referred to as
the "Rights Distribution Date"), the Rights will be evidenced (subject
to the provisions of paragraph (b) of this Section 3) by the
certificates for the Common Stock registered in the names of the
holders thereof (which certificates for Common Stock shall be deemed
also to be certificates for Rights) and not by separate certificates,
and will be transferable only in connection with the transfer of the
underlying shares of Common Stock. As soon as practicable after the
Rights Distribution Date, the Rights Agent will send by first-class,
insured, postage prepaid mail, to each record holder of the Common
Stock as of the close of business on the Rights Distribution Date, at
the address of such holder shown on the records of the Company, one or
more Rights certificates, in substantially the form of Exhibit B hereto
(the "Rights Certificates"), evidencing one Right for each share of
Common Stock so held, subject to adjustment in the number of Rights per
share of Common Stock as has been made pursuant to Section 11(p)
hereof, at the time of distribution of the Rights Certificates, the
Company shall make the necessary and appropriate rounding adjustments
(in accordance with Section 14(a) hereof) so that Rights Certificates
representing only whole numbers of rights are distributed and cash is
paid in lieu of any fractional Rights. As of and after the Rights
Distribution Date, the Rights will be evidenced solely by such Rights
Certificates.
5. Section 13(d) of the Rights Agreement shall be amended and restated to
read as follows:
(d) Notwithstanding anything in this Agreement to the
contrary, Section 13 shall not be applicable to a transaction described
in subparagraphs (x), (y) or (z) of Section 13(a) if such transaction
is (i) approved (whether or not the approval of the Board of Directors
is required in connection with such transaction) by a majority of the
Board of Directors of the Company (or, from and after the Stock
Acquisition Date, a majority of Continuing Directors), or (ii) a merger
which follows a cash tender offer approved by the Board of Directors
(or, from and after the Stock Acquisition Date, a majority of
Continuing Directors) for all outstanding shares of Common Stock so
long as the consideration payable in the merger is the same in form and
not less than the amount as was paid in the tender offer, and (x) at
the time the Board of Directors approves such transaction, the Board of
Directors is aware of the identity of any Person (and the identities of
all the Person's Affiliates and Associates) whose beneficial ownership
will equal or exceed 15% of the shares of Common Stock of the Company
both before and after such transaction and (y) the number of shares of
Common Stock beneficially owned by any such Person, together with such
Person's Affiliates and Associates both before and after such
transaction.
6. Section 18 of the Rights Agreement shall be amended and restated to
read as follows:
(a) The Company agrees to pay to the Rights Agent such
compensation as shall be agreed to from time to time between the
parties for all services rendered by it hereunder and, from time to
time, on
<PAGE>
<PAGE>
demand of the Rights Agent, its reasonable expenses and counsel fees
and other disbursements incurred in the administration and execution
of this Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights Agent for,
and to hold it harmless against, any and all loss, liability, damage,
claim or expense, incurred without gross negligence, bad faith or
willful misconduct on the part of the Rights Agent, for anything done
or omitted by the Rights Agent in connection with the acceptance and
administration of this Agreement, including, without limitation, the
costs and expenses of defending against any claim of liability in the
premises.
(b) The Rights Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or omitted by
it in connection with its administration of this Agreement in reliance
upon any Rights Certificate or certificate for Common Stock or for
other securities of the Company, instrument of assignment or transfer,
power of attorney, endorsement, affidavit, letter, notice, direction,
consent, certificate, statement, or other paper or document believed by
it to be genuine and to be signed and executed by the proper Person or
Persons and, where necessary, to be verified or acknowledged.
The provisions of this Section 18 shall survive the expiration of the
Rights and the termination of this Agreement.
7. Except as specifically amended above, the Rights Agreement shall remain
in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and attested, all as of the day and year first above written.
<TABLE>
<S> <C>
Attest: MIDWAY GAMES INC.
By: /s/ Orrin J. Edidin By: /s/ Harold H. Bach, Jr.
--------------------------------- ----------------------------------
Name: Orrin J. Edidin Name: Harold H. Bach, Jr.
Title: Vice President Title: Executive Vice President -- Finance
Attest: THE BANK OF NEW YORK, as Rights Agent
By: /s/ Daniel Egan By: /s/ Jeffrey Grosse
--------------------------------- ----------------------------------
Name: Daniel Egan Name: Jeffrey Grosse
Title: Assistant Vice President Title: Assistant Vice President
</TABLE>
