UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 3)
Midwest Express Holdings, Inc.
(Name of Issuer)
Common Stock, with $.01 par value
(Title of Class of Securities)
597911 10 6
(CUSIP Number)
W. Anthony Gamron
Kimberly-Clark Corporation
351 Phelps Drive
Irving, Texas 75038
(214)281-1200
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
May 30, 1996
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
Schedule because of Rule 13d- 1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with this statement [ ].
--
Page 1 of 55 Pages
Exhibit Index appears on Page 10
(1) Name of Reporting Person K-C Nevada, Inc.
S.S. or I.R.S. Identification
No. of Above Person
(2) Check the Appropriate Box if a (a) N/A
Member of a Group (See instructions) (b) N/A
(3) SEC Use Only
(4) Source of Funds (See instructions) 00
(5) Check if Disclosure of Legal N/A
Proceedings is Required Pursuant
to Items 2(d) or 2(e)
(6) Citizenship or Place of Organization Nevada
Number of Shares (7) Sole Voting Power -0-
Beneficially Owned
By Each Reporting (8) Shared Voting Power -0-
Person With
(9) Sole Dispositive Power -0-
(10) Shared Dispositive Power -0-
(11) Aggregate Amount Beneficially -0-
Owned by Each Reporting Person
(12) Check if the Aggregate Amount in N/A
Row (11) Excludes Certain Shares
(See instructions)
(13) Percent of Class Represented by 0%
Amount in Row (11)
(14) Type of Reporting Person (See CO
Instructions)
Page 2
(1) Name of Reporting Person Kimberly-Clark Corporation
S.S. or I.R.S. Identification
No. of Above Person
(2) Check the Appropriate Box if a (a) N/A
Member of a Group (See instructions) (b) N/A
(3) SEC Use Only
(4) Source of Funds (See instructions) 00
(5) Check if Disclosure of Legal N/A
Proceedings is Required Pursuant
to Items 2(d) or 2 (e)
(6) Citizenship or Place of Organization Delaware
Number of Shares (7) Sole Voting Power -0-
Beneficially Owned
By Each Reporting (8) Shared Voting Power -0-
Person With
(9) Sole Dispositive Power -0-
(10) Shared Dispositive Power -0-
(11)Aggregate Amount Beneficially -0-
Owned by Each Reporting Person
(12)Check if the Aggregate Amount in N/A
Row (11) Excludes Certain Shares
(See instructions)
(13)Percent of Class Represented by 0%
Amount in Row (11)
(14) Type of Reporting Person (See CO
instructions)
Page 3
The Statement on Schedule 13D (the `Schedule 13D'') relating to the Common
Stock, $.01 par value per share, of Midwest Express Holdings, Inc., a Wisconsin
corporation (the `Company''), filed October 10, 1995 by Kimberly-Clark
Corporation (`Kimberly-Clark'') and K-C Nevada, Inc., an indirect wholly owned
subsidiary of Kimberly-Clark (`K-C Nevada''), as amended by Amendment No. 1
filed April 22, 1996 and Amendment No. 2 filed June 7, 1996, is hereby further
amended and restated as follows:
Item 1. Security and Issuer.
Common Stock, $.01 par value
Midwest Express Holdings, Inc.
6744 South Howell Avenue
Oak Creek, Wisconsin 53154
Item 2. Identity and Background.
Name: Kimberly-Clark Corporation
State of Incorporation:Delaware
Principal business:Manufacturing and marketing products for personal,
business and industrial use
Principal Business and
Office Address: 351 Phelps Drive
Irving, Texas 75038
Name: K-C Nevada, Inc.
State of Incorporation: Nevada
Principal business: Holding company
Principal Business and
Office Address: 351 Phelps Drive
Irving, Texas 75038
Filed as Exhibit 1 to this Schedule 13D Amendment No. 3 is a list of the
directors and executive officers of each of Kimberly-Clark and K-C Nevada.
Exhibit 1 contains the following information with respect to each such person:
(a) name; (b) business or residence address; (c) present principal occupation
or employment, and the name and address of any corporation or other
organization in which such employment is conducted. Except for Claudio X.
Gonzalez, who is a citizen of Mexico, each person listed in Exhibit 1 is a
United States citizen.
During the last five years, none of Kimberly-Clark, K-C Nevada or, to the best
of Kimberly-Clark's or K-C Nevada's knowledge, any person named in Exhibit 1
(i) has been convicted in a criminal proceeding (excluding traffic violations
or similar misdemeanors), or (ii) has been a party to any civil proceeding of
any judicial or administrative body of competent jurisdiction and as a result
of such proceeding was or is subject to a decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to,
federal or state securities laws or a finding of any violation of such laws.
Page 4
Item 3. Source and Amount of Funds or Other Consideration.
In connection with the initial public offering (the `Initial Offering'') of
the Common Stock, $.01 par value (`Common Stock''), of the Company, K-C Nevada
acquired 6,428,571 shares of Common Stock of the Company on September 27, 1995
in exchange for all outstanding stock of Midwest Express Airlines, Inc., a
Delaware corporation that was wholly owned by K-C Nevada prior to the Initial
Offering. In connection with the Initial Offering, K-C Nevada sold 5,140,000
shares of Common Stock on September 27, 1995 to certain underwriters pursuant
to the terms of an Underwriting Agreement dated September 21, 1995.
Item 4. Purpose of Transaction.
The 6,428,571 shares of Common Stock were acquired by K-C Nevada in connection
with the Initial Offering, pursuant to which K-C Nevada sold 5,140,000 shares
of Common Stock to certain underwriters pursuant to the terms of an
Underwriting Agreement dated September 21, 1995.
On April 19, 1996 Kimberly-Clark announced that its board of directors has
authorized the sale of all of the common stock of the Company owned by
Kimberly-Clark and K-C Nevada by means of any underwritten secondary offering.
Upon completion of the offering and assuming the exercise in full of the
underwriters' over-allotment option, Kimberly-Clark and K-C Nevada will have
sold their entire interest in the common stock of the Company.
On May 30, 1996, pursuant to an underwritten public offering, K-C Nevada sold
all of the shares of Common Stock of the Company beneficially owned by it and
Kimberly-Clark on such date.
Item 5. Interest in Securities of the Issuer.
(a), (b) and (c)On May 30, 1996, pursuant to an underwritten public offering,
K-C Nevada sold all of the shares of Common Stock of the Company beneficially
owned by it on such date (1,288,571 shares) at a price of $32.115 per share.
Following such sale, neither K-C Nevada nor Kimberly-Clark beneficially own any
shares of Common Stock of the Company.
(d) K-C Nevada is an indirect wholly owned subsidiary of Kimberly-Clark.
(e) On May 30, 1996, K-C Nevada and Kimberly-Clark ceased to be the beneficial
owner of more than five percent of the Common Stock of the Company.
Page 5
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
to Securities of the Issuer..
K-C Nevada entered into a Stock Agreement with the Company on September 27,
1995 for the transfer of all of the outstanding capital stock of Midwest
Express Airlines, Inc., a Delaware corporation that was wholly owned by K-C
Nevada prior to the Initial Offering, in exchange for 6,428,571 shares of
Common Stock of the Company, of which 5,140,000 were sold by K-C Nevada in the
Initial Offering. Pursuant to the terms of the Stock Agreement, K-C Nevada
agrees to indemnify the Company for any liabilities, the substance of which are
based solely on the information provided by Kimberly-Clark or K-C Nevada about
Kimberly-Clark or K-C Nevada contained in specified portions of the
Registration statement on Form S-1 (Registration No. 33-95212) covering the
shares of Common Stock issued in the Initial Offering (the `Registration
Statement'). The Company agrees to indemnify Kimberly-Clark and its
affiliates for any other liability related to the Initial Offering in respect
of the Registration statement. The Stock Agreement was attached as Exhibit 2
to the Schedule 13D and is incorporated herein by reference.
On September 27, 1995, K-C Nevada entered into a Registration Rights Agreement
with the Company, pursuant to which K-C Nevada may demand prior to the fifth
anniversary of the Registration Rights Agreement two registrations under the
Securities Act of 1933, as amended, of the Common Stock at the Company's
expense. The Company is not required to effect more than one registration in a
twelve month period. If the Company conducts a registered offering prior to
the fifth anniversary of the Registration Rights Agreement, K-C Nevada has the
right to participate in such offering. The Registration Rights Agreement was
attached as Exhibit 3 to the Schedule 13D and is incorporated herein by
reference.
On September 21, 1995, Kimberly-Clark and K-C Nevada entered into an
Underwriting Agreement among the Company, K-C Nevada, Kimberly-Clark, Midwest
Express Airlines, Inc. and Salomon Brothers Inc, Goldman, Sachs & Co. and
Robert W. Baird & Co. Incorporated, as representatives for the underwriters
pursuant to which K-C Nevada has agreed not to sell any Common Stock for 360
days after the Initial Offering. The Underwriting Agreement was attached as
Exhibit 4 to the Schedule 13 D and is incorporated herein by reference.
On April 19, 1996, Kimberly-Clark announced that its board of directors has
authorized the sale of all of the common stock of the Company owned by
Kimberly-Clark and K-C Nevada by means of an underwritten secondary offering.
Upon completion of the offering, and assuming the exercise in full of the
underwriters' over-allotment option, Kimberly-Clark and K-C Nevada will have
sold their entire interest in the common stock of the Company. The
underwriters in the Initial Offering have agreed to waive K-C Nevada's
agreement not sell any Common Stock for 360 days after the Initial Offering,
and K-C Nevada has provided notice to the Company of a demand registration
under the Registration Rights Agreement.
Page 6
On May 23, 1996, K-C Nevada and Kimberly-Clark entered into an Underwriting
Agreement, among the Company, K-C Nevada, Kimberly-Clark and Salomon Brothers
Inc and Robert W. Baird & Co. Incorporated as the representatives for the
underwriters. The Underwriting Agreement is attached hereto as Exhibit 5 and
is incorporated herein by reference.
Item 7. Material to be Filed as Exhibits.
Exhibit 1-Information relating to executive officers and directors of
Kimberly-Clark Corporation and K-C Nevada, Inc.
Exhibit 2-Stock Agreement, dated September 27, 1995, between K-C Nevada,
Inc. and Midwest Express Holdings, Inc.*
Exhibit 3-Registration Rights Agreement, dated September 27, 1995, between
K-C Nevada, Inc. and Midwest Express Holdings, Inc.*
Exhibit 4-Underwriting Agreement, dated September 21, 1995, among K-C
Nevada, Inc., Kimberly-Clark Corporation, Midwest Express Holdings, Inc.,
Midwest Express Airlines, Inc. and Salomon Brothers Inc, Goldman, Sachs & Co.
and Robert W. Baird & Co. Incorporated.*
Exhibit 5-Underwriting Agreement, dated May 23, 1996, among K-C Nevada,
Inc., Kimberly-Clark Corporation, Midwest Express Holdings, Inc. and Salomon
Brothers Inc and Robert W. Baird & Co. Incorporated.
* Previously filed with the Statement on Schedule 13D filed October 10, 1995
by Kimberly-Clark Corporation and K-C Nevada, Inc.
Page 7
Signature
After reasonable inquiry and to the best of my knowledge and belief, the
undersigned certifies that the information set forth in this statement is true,
complete and correct.
Dated: June 11, 1996
K-C NEVADA, INC.
By: /s/ W. Anthony Gamron
----------------------------------
W. Anthony Gamron
Vice President & Treasurer
Page 8
Signature
After reasonable inquiry and to the best of my knowledge and belief, the
undersigned certifies that the information set forth in this statement is true,
complete and correct.
Dated: June 11, 1996
KIMBERLY-CLARK CORPORATION
By: /s/ W. Anthony Gamron
--------------------------------
W. Anthony Gamron
Vice President & Treasurer
Page 9
EXHIBIT INDEX
Page No.
Exhibit 1 Information relating to executive officers and 11
directors of Kimberly-Clark Corporation and
K-C Nevada, Inc.
Exhibit 2 Stock Agreement, dated September 27, 1995, *
between K-C Nevada, Inc. and Midwest Express
Holdings, Inc.
Exhibit 3 Registration Rights Agreement, dated *
September 27, 1995, between K-C Nevada,
Inc. and Midwest Express Holdings, Inc.
Exhibit 4 Underwriting Agreement, dated September 21, 1995, *
among K-C Nevada, Inc., Kimberly-Clark Corporation,
Midwest Express Holdings, Inc., Midwest Express
Airlines, Inc., and Salomon Brothers Inc, Goldman,
Sachs & Co. and Robert W. Baird & Co. Incorporated.
Exhibit 5 Underwriting Agreement, dated May 23, 1996, 14
among K-C Nevada, Inc., Kimberly-Clark Corporation,
Midwest Express Holdings, Inc., and Salomon Brothers Inc
and Robert W. Baird & Co. Incorporated.
* Previously filed with the Statement on Schedule 13D filed October 10, 1995
by Kimberly-Clark Corporation and K-C Nevada, Inc.
Page 10
EXHIBIT 1
K-C NEVADA, INC.
PRINCIPAL
OCCUPATION
NAME TITLE ADDRESS
John W. President and 351 Phelps Drive Senior Vice President
Donehower Director Irving, Texas and Chief Financial
75038 Officer - Kimberly-
Clark Corporation
W. Anthony Vice President 351 Phelps Drive Vice President and
Gamron and Treasurer Irving, Texas Treasurer - Kimberly-
and Director 75038 Clark Corporation
Donald M. Crook Vice President 351 Phelps Drive Vice President and
and Secretary Irving, Texas Secretary - Kimberly-
75038 Clark Corporation
KIMBERLY-CLARK CORPORATION
PRINCIPAL
OCCUPATION
NAME TITLE ADDRESS
John F. Director 351 Phelps Drive President and CEO
Bergstrom Irving, Texas Bergstrom Corporation
75038 Neenah, Wisconsin
Pastora San Director 351 Phelps Drive Professor
Juan Cafferty Irving, Texas University of Chicago
75038 Chicago, Illinois
Paul J. Collins Director 351 Phelps Drive Vice Chairman
Irving, Texas Citicorp and Citibank,
75038 N.A.
New York, NY
Robert W. Director 351 Phelps Drive Chairman of the Board,
Decherd Irving, Texas President and Chief
75038 Executive
Officer
A.H. Belo Corporation
Dallas, Texas
William O. Director 351 Phelps Drive Partner
Fifield Irving, Texas Sidley & Austin
75038 Chicago, Illinois
Page 11
Claudio X. Director 351 Phelps Drive Chairman of the Board
Gonzalez Irving, Texas and
75038 Managing Director
K-C de Mexico, S.A. de
C.V.
Mexico City, Mexico
Louis E. Levy Director 351 Phelps Drive Retired Partner and
Irving, Texas Vice Chairman
75038 KPMG Peat Marwick
Short Hills, New Jersey
Frank A. Director 351 Phelps Drive Chairman of the Board
McPherson Irving, Texas and Chief Executive
75038 Officer
Kerr-McGee Corporation
Oklahoma City, Oklahoma
Linda Johnson Director 351 Phelps Drive President and Chief
Rice Irving, Texas Operating
75038 Officer
Johnson Publishing Co.,
Inc.
Chicago, Illinois
Wayne R. Chairman of the 351 Phelps Drive Same
Sanders Board and Chief Irving, Texas
Executive 75038
Officer and
Director
Wolfgang R. Director 351 Phelps Drive Chairman of the Board
Schmitt Irving, Texas and Chief Executive
75038 Officer
Rubbermaid Incorporated
Wooster, Ohio
Randall L. Director 351 Phelps Drive Chairman of the Board
Tobias Irving, Texas and Chief Executive
75038 Officer
Eli Lilly and Company
Indianapolis, Indiana
John W. Senior Vice 351 Phelps Drive Same
Donehower President and Irving, Texas
Chief Financial 75038
Officer
O. George Senior Vice 351 Phelps Drive
Everbach President - Law Irving, Texas Same
and Government 75038
Affairs
Thomas J. Falk Group President 2100 Winchester Same
- Tissue, Pulp Road
and Paper Neenah, Wisconsin
54956
Page 12
James T. Executive Vice 1400 Holcomb Same
McCauley President Bridge Rd
Roswell, Georgia
30076
Kathi P. Group President 2100 Winchester Same
Seifert - North Road
American Neenah, Wisconsin
Personal Care 54956
Products
John A. Van President - 35 London Road Same
Steenberg European Reigate Surrey
Consumer and RH2 9ZP
Away From Home England
Operations
Page 13
EXHIBIT 5
---------
CONFORMED
Midwest Express Holdings, Inc.
1,158,571 Shares*
Common Stock
($.01 par value)
Underwriting Agreement
New York, New York
May 23, 1996
Salomon Brothers Inc
Robert W. Baird & Co. Incorporated
As Representatives of the several Underwriters
c/o Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Dear Sirs:
K-C Nevada, Inc. (the "Selling Stockholder"), a Nevada corporation and
an indirect, wholly owned subsidiary of Kimberly-Clark Corporation ("Kimberly-
Clark"), a Delaware corporation, proposes to sell to the underwriters named in
Schedule I hereto (the "Underwriters"), for whom you are acting as
representatives (the "Representatives"), 1,158,571 shares of Common Stock, $.01
*
Plus an option to purchase up to 130,000 additional shares from the
Selling Stockholder to cover over-allotments.
par value ("Common Stock"), of Midwest Express Holdings, Inc. (the "Company"), a
Wisconsin corporation (said shares to be sold by the Selling Stockholder being
hereinafter called the "Underwritten Securities"). Upon the terms and
conditions more fully set forth herein, the Selling Stockholder also proposes to
grant to the Underwriters an option to purchase up to 130,000 additional shares
of Common Stock (the "Option Securities"; the Option Securities, together with
the Underwritten Securities, being hereinafter called the "Securities").
1. Representations and Warranties.
(a) The Company represents and warrants to, and agrees with, each
Underwriter that:
(i) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (file number
333-03325) on Form S-1, including related preliminary prospectuses,
for the registration under the Securities Act of 1933 (the "Act") of
the offering and sale of the Securities. The Company may have filed
one or more amendments thereto, including the related preliminary
prospectuses, each of which has previously been furnished to you. The
Company will next file with the Commission either, (A) prior to effec-
tiveness of such registration statement, a further amendment thereto
(including the form of final prospectus) or, (B) after effectiveness
of such registration statement, a final prospectus in accordance with
Rules 430A and 424(b)(1) or (4). In the case of clause (B), the
Company has included in such registration statement, as amended at the
Effective Date, all information (other than the information with
respect to the Securities and the offering thereof permitted to be
omitted from the Registration Statement when it becomes effective
pursuant to Rule 430A (the "Rule 430A Information")) required by the
Act and the rules thereunder to be included in the Prospectus with
respect to the Securities and the offering thereof. As filed, such
amendment and form of final prospectus, or such final prospectus,
shall include all Rule 430A Information and, except to the extent the
Representatives shall agree in writing to a modification (which
agreement shall not be unreasonably withheld), shall be in all
substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other
changes (beyond that contained in the latest Preliminary Prospectus)
as the Company has advised you, prior to the Execution Time, will be
included or made therein.
The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each
date that the Registration Statement and any post-effective amendment
or amendments thereto became or become effective. "Execution Time"
shall mean the date and time that this Agreement is executed and
delivered by the parties hereto. "Preliminary Prospectus" shall mean
any preliminary prospectus referred to in the preceding paragraph and
any preliminary prospectus included in the Registration Statement at
the Effective Date that omits Rule 430A Information. "Prospectus"
shall mean the prospectus relating to the Securities that is first
filed pursuant to Rule 424(b) after the Execution Time or, if no
filing pursuant to Rule 424(b) is required, shall mean the form of
final prospectus relating to the Securities included in the
Registration Statement at the Effective Date. "Registration
Statement" shall mean the registration statement referred to in the
preceding paragraph, including exhibits and financial statements, in
the form in which it has or shall become effective and, in the event
any post-effective amendment thereto becomes effective prior to the
Closing Date (as hereinafter defined) or settlement date pursuant to
Section 3 hereof, shall also mean such registration statement as so
amended on such date. Such term shall include Rule 430A Information
deemed to be included therein at the Effective Date as provided by
Rule 430A. All references to "Rule" or "Rules" herein refer to rules
promulgated under the Act.
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations
thereunder, and did not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except as
corrected in a pre-effective amendment to the Registration Statement;
provided, however, that no representations or warranties are made as
to the information contained in or omitted from any Preliminary
Prospectus in reliance upon and in conformity with information
forwarded in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for use therein.
(iii) On the Effective Date, the Registration Statement did
or will, and when the Prospectus is first filed (if required) in
accordance with Rule 424(b), on the Closing Date and on any settlement
date pursuant to Section 3 hereof, the Prospectus (and any supplements
thereto) will, comply in all material respects with the applicable
requirements of the Act and the rules thereunder; on the Effective
Date, the Registration Statement did not or will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, the
Prospectus, if not filed pursuant to Rule 424(b), did not or will not,
and on the date of any filing pursuant to Rule 424(b), on the Closing
Date and on any settlement date pursuant to Section 3 hereof, the
Prospectus (together with any supplement thereto) will not, include
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that no representations or warranties are made as
to the information contained in or omitted from the Registration
Statement or the Prospectus (or any supplement thereto) in reliance
upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the Representatives
specifically for use therein.
(iv) The performance of this Agreement and the consummation of
the transactions herein contemplated will not result in a violation of
the articles of incorporation or by-laws of the Company, Midwest
Express Airlines, Inc. ("Midwest Express"), a Wisconsin corporation,
or Astral Aviation, Inc. ("Astral"), a Delaware corporation and wholly
owned subsidiary of Midwest Express, or result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any statute, any indenture, mortgage, deed of trust,
credit agreement or other agreement or instrument to which the
Company, Midwest Express or Astral is a party or by which any of them
is bound or to which any of the property of the Company, Midwest
Express or Astral is subject, or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company, Midwest Express or Astral or any of their respective
properties which violation or violations might or could be expected to
individually or in the aggregate result in a materially adverse effect
on the financial condition, assets, operations, or prospects of the
Company, Midwest Express and Astral taken as a whole; no consent,
approval, authorization or order of, or filing with, any court or
governmental agency or body is required for the consummation of the
transactions contemplated by this Agreement in connection with the
issuance or sale of the Securities except such as may be required by
the Federal Aviation Act of 1958, as amended (all of which have been
obtained or filed), or The National Association of Securities Dealers,
Inc. or under the Act or state securities laws.
(v) Except as described in the Prospectus, none of the Company,
Midwest Express nor Astral is in violation of any term of its charter
or by-laws, and none of the Company, Midwest Express nor Astral is in
violation of any term of any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to it which
violation or violations might or could be expected to individually or
in the aggregate result in a materially adverse effect on the
financial condition, assets, operations, or prospects of the Company,
Midwest Express and Astral taken as a whole or the consummation of the
offering of the Securities contemplated by the Prospectus (the
"Offering").
(vi) Except as described in the Prospectus, the Company, Midwest
Express and Astral are operating in compliance in all material
respects with all material franchises, grants, authorizations,
licenses, permits, easements, consents, certificates and orders of any
governmental or regulatory body required for the conduct of their
respective businesses, and they own or possess adequate rights to use
all the patents, trademarks, service marks, trade names, copyrights
and licenses, and rights with respect to the foregoing, necessary for
the conduct of their respective businesses as now conducted and as
proposed to be conducted, without any known material conflict with the
rights of others.
(vii) All contracts, agreements, instruments, leases and
licenses required to be described in the Registration Statement or the
Prospectus and/or to be filed as an exhibit to the Registration
Statement have been so described in all material respects and/or
filed.
(viii) Subsequent to the respective dates as of which
information is given in the Registration Statement and Prospectus, and
except as set forth or contemplated in the Prospectus, (i) none of the
Company, Midwest Express nor Astral has incurred any material
liabilities or obligations, direct or contingent, nor entered into any
material transactions not in the ordinary course of business, and (ii)
there has not been any material adverse change in the condition
(financial or otherwise), business, prospects or results of operations
of the Company, Midwest Express and Astral considered as a whole, or
any change in the capital stock or long-term debt of the Company,
Midwest Express and Astral considered as a whole.
(ix) The historical consolidated financial statements, together
with the related notes and schedules, set forth in the Prospectus and
elsewhere in the Registration Statement, fairly present in all
material respects, on the basis stated in the Registration Statement,
the financial position and the results of operations and cash flows of
the entities covered thereby at the respective dates or for the
respective periods therein specified. Such consolidated financial
statements and related notes and schedules have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis throughout the respective periods involved (except as
otherwise noted therein), and are in accordance with the books and
records of the entities covered thereby. The selected consolidated
financial data set forth in the Prospectus under the captions "Summary
Financial and Operating Data," "Risk Factors," "Selected Financial and
Operating Data," "Management's Discussion and Analysis of Financial
Condition and Results of Operations," "Business," and "Management"
taken together with the other information in the Prospectus fairly
presents, on the basis stated in the Registration Statement, the
information set forth therein. The pro forma statement of operations
data set forth in the notes to the audited and unaudited financial
statements presents fairly in all material respects the information
shown therein, has been prepared in accordance with the Commission's
rules and guidelines with respect to pro forma information, has been
properly compiled on the pro forma basis described therein, and, in
the opinion of the Company, the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are
appropriate under the circumstances.
(x) Deloitte & Touche LLP, who have certified the consolidated
financial statements of the Company, Midwest Express and Astral are,
and during the periods covered by their report included in the
Registration Statement were, independent public accountants as
required by the Act and the applicable rules and regulations
thereunder.
(xi) Each of the Company, Midwest Express and Astral has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation. Each of
the Company, Midwest Express and Astral is duly qualified and in good
standing as a foreign corporation in each jurisdiction in which the
character or location of its properties (owned, leased or licensed) or
the nature or conduct of its business makes such qualification
necessary, except for those failures to be so qualified or in good
standing that will not in the aggregate have a material adverse effect
on the financial condition, assets, operations or prospects of the
Company, Midwest Express and Astral taken as a whole. Each of the
Company, Midwest Express and Astral has all requisite power and
authority, and all necessary consents, approvals, authorizations,
orders, registrations, qualifications, licenses and permits of and
from all public, regulatory or governmental agencies and bodies, to
own, lease and operate its properties and conduct its business as now
being conducted and as described in the Registration Statement and the
Prospectus except where such failure would not have a material adverse
effect, and no such consent, approval, authorization, order,
registration, qualification, license or permit contains a materially
burdensome restriction not adequately disclosed in the Registration
Statement and the Prospectus.
(xii) The Company has an authorized and outstanding capital
stock as set forth in the Prospectus; the issued shares of Common
Stock of the Company conform to the description thereof in the
Prospectus and have been duly authorized and validly issued and are
fully paid and nonassessable and were not issued in violation of or
subject to any preemptive rights; the stockholders of the Company have
no preemptive rights with respect to any shares of capital stock of
the Company. All outstanding shares of capital stock of Midwest
Express and Astral have been duly authorized and validly issued, and
are fully paid and nonassessable and were not issued in violation of
or subject to any preemptive rights; and all outstanding shares of
Astral are owned directly by Midwest Express and all outstanding
shares of Midwest Express are owned directly by the Company, free and
clear of any liens, encumbrances, equities or claims. There is no
commitment, plan or arrangement to issue, and no outstanding option,
warrant, or other right calling for the issuance of, any share of
capital stock of the Company, Midwest Express or Astral, or any
security or other instrument which by its terms is convertible into or
exchangeable for capital stock of the Company, Midwest Express or
Astral, except as described in the Prospectus. Except as described in
the Prospectus, there is outstanding no security or other instrument
which by its terms is convertible into or exchangeable for capital
stock of the Company, Midwest Express or Astral. The Securities to be
sold by the Selling Stockholder to the Underwriters hereunder, when
delivered and sold in accordance with this Agreement, will be duly and
validly issued and outstanding, fully paid and nonassessable, and will
not have been issued in violation of or subject to any preemptive
rights.
(xiii) Except as described in the Prospectus, there are no
legal or governmental proceedings or other actions, suits, proceedings
or investigations pending before any court or before or by any public,
regulatory or governmental agency or body (including, without
limitation, any state regulatory agency, board or department) to which
the Company, Midwest Express or Astral is a party or of which any
property of the Company, Midwest Express or Astral is the subject,
which are of a character that are required to be described in the
Registration Statement and the Prospectus but are not so described;
and to the Company's knowledge no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(xiv) The Company has the full corporate power and authority
to enter into this Agreement and to perform the obligations to be
performed by it hereunder and this Agreement has been duly and validly
authorized, executed and delivered by the Company.
(xv) Each of the Company, Midwest Express and Astral has good and
marketable title in fee simple absolute to all real properties and
good title to all other properties and assets that the Prospectus
indicates are owned by it, free and clear of all liens, security
interests, pledges, charges, encumbrances and mortgages (except as
described in the Prospectus or such as in the aggregate do not now
have and will not in the future have a material adverse effect upon
the financial condition, assets, operations, or prospects of the
Company, Midwest Express and Astral taken as a whole or the Offering).
(xvi) The Company, Midwest Express and Astral have filed all
necessary federal and state income and franchise tax returns material
to the business of the Company, Midwest Express and Astral and have
paid all taxes shown as due thereon, and except as described in the
Prospectus there is no tax deficiency that has been, or to the
knowledge of the Company might be, asserted against the Company,
Midwest Express or Astral or any of their respective properties or
assets that would or could be expected to materially adversely affect
the financial condition, assets, operations or prospects of the
Company, Midwest Express and Astral taken as a whole or the Offering.
(xvii) No person or entity has the right to require
registration of shares of Common Stock or other securities of the
Company because of the filing or effectiveness of the Registration
Statement or otherwise, except as described in the Prospectus.
(xviii) The Securities have been approved for listing on the
New York Stock Exchange upon notice of issuance.
(xix) Each of Midwest Express and Astral is an "air carrier"
and a "citizen of the United States" within the meaning of the Federal
Aviation Act of 1958, as amended; each of the Company, Midwest Express
and Astral now holds, and at the Closing Date (as hereinafter defined)
will hold, all licenses, certificates and permits from all regulatory
authorities (domestic and foreign) that are material to the conduct of
its business as described in the Prospectus, all of which are valid
and in full force and effect (and there is no proceeding pending or,
to the knowledge of the Company, threatened which is reasonably likely
to cause any such license, certificate or permit to be withdrawn,
canceled, suspended or not renewed);
(xx) Each of the Company, Midwest Express and Astral has such
licenses, certificates, permits and other governmental authorizations
from the Department of Transportation, as successor to the Civil
Aeronautics Board, the Federal Aviation Administration, the Federal
Communications Commission and any other federal, state or local
transportation or aviation regulatory authority as are necessary to
own its properties and to conduct its business in the manner described
in the Prospectus, and no such license, certificate, permit or other
governmental authorization is the subject of any "show cause" or other
order of, or any proceeding before, or to the knowledge of the Company
any investigation by, any such authority (other than proceedings for
the renewal of temporary rights), which might reasonably result in a
final order impairing the validity of such licenses, certificates,
permits and other governmental authorizations;
(xxi) There is no pending or, to the Company's knowledge,
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company, Midwest Express or Astral or their property and involving (A)
licenses, certificates, permits or other governmental authorizations
issued by or from the Department of Transportation, the Federal
Aviation Administration, the Federal Communications Commission or any
other federal or any state transportation or aviation regulatory
authority or (B) the Federal Aviation Act of 1958, as amended, that is
of a character required to be disclosed in the Registration Statement
which is not adequately disclosed in the Prospectus;
(xxii) To the Company's knowledge and except as would not,
individually or in the aggregate, have a material adverse effect upon
the financial condition, assets, business or operations of the
Company, Midwest Express and Astral taken as a whole (a) none of the
Company, Midwest Express nor Astral is in violation of any Federal,
state or local laws and regulations relating to pollution (including
regulations relating to noise) or protection of human health or the
environment (including, without limitation, ambient air, surface
water, ground water, land surface or subsurface strata), including,
without limitation, laws and regulations relating to emissions,
discharges, releases or threatened releases of toxic or hazardous
substances, materials or wastes, or petroleum and petroleum products
("Materials of Environmental Concern"), or otherwise relating to the
storage, disposal, transport or handling of Materials of Environmental
Concern (collectively, "Environmental Laws"), which violation
includes, but is not limited to, noncompliance with any permits or
other governmental authorizations; (b) none of the Company, Midwest
Express nor Astral has received any communication (written or oral),
whether from a governmental authority or otherwise, alleging any such
violation or noncompliance; and (c) there is no pending or threatened
claim, action, investigation or notice (written or oral) by any person
or entity alleging potential liability for investigatory, cleanup, or
governmental response costs, or natural resources or property damages,
or personal injuries, attorney's fees or penalties relating to (x) the
presence, or release into the environment, of any Material of
Environmental Concern at any location owned or operated by the
Company, Midwest Express or Astral, now or in the past, or (y)
circumstances forming the basis of any violation, or alleged
violation, of any Environmental Law.
(xxiii) Except as disclosed in the Prospectus, none of the
Company, Midwest Express nor Astral is involved in any labor dispute
nor, to the knowledge of the Company, is any labor dispute imminent,
other than routine disciplinary and grievance matters, which would
have a material adverse effect upon the financial condition, assets,
business or operations of the Company, Midwest Express and Astral
taken as a whole.
(xxiv) Neither the Company nor any of its officers, directors
or affiliates (as defined in the Act and the rules and regulations
thereunder) has taken or will take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be
expected to cause or result, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or otherwise, in stabilization
or manipulation of the price of any security of the Company, to
facilitate the sale or resale of the Securities.
(xxv) None of the Company, Midwest Express nor Astral is, nor
does it intend to conduct its business in a manner in which it would
become, an "investment company" as defined in Section 3(a) of the
Investment Company Act of 1940, as amended.
(xxvi) Each of the Company, Midwest Express and Astral is in
compliance with Florida blue sky law relating to disclosure of issuers
doing business with Cuba. None of the Company, Midwest Express nor
Astral is presently doing business with the government of Cuba or with
any person or affiliate located in Cuba and the Company, Midwest
Express or Astral, as the case may be, will notify the Florida
Department of Banking and Finance, Division of Securities and Investor
Protection, if the Company, Midwest Express or Astral commences doing
business with the government of Cuba or any person or affiliate
located in Cuba.
(b) The Selling Stockholder and Kimberly-Clark, jointly and severally,
represent and warrant to, and agree with, each Underwriter that:
(i) The Selling Stockholder has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation.
(ii) The Selling Stockholder, on the Closing Date or the
settlement date for the Option Securities otherwise contemplated in
Section 3 hereof, as the case may be, will have good title to all of
the Securities to be sold on such date and upon sale and delivery of,
and payment for, such Securities, as provided herein, the Selling
Stockholder will convey good and marketable title to such Securities,
free and clear of all liens, encumbrances, pledges, equities and
claims whatsoever.
(iii) The Selling Stockholder has the full corporate power
and authority to enter into and deliver this Agreement, and on the
Closing Date will have the full corporate power and authority to sell
and deliver the Securities to be sold and delivered by it hereunder
and to otherwise perform the obligations to be performed by it
hereunder and this Agreement has been duly and validly authorized,
executed and delivered by the Selling Stockholder.
(iv) The Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to or which has
constituted or which might reasonably be expected to cause or result,
under the Exchange Act or otherwise, in stabilization or manipulation
of the price of any security of the Company to facilitate the sale or
resale of the Securities and has not effected any sales of shares of
Common Stock which, if effected by the issuer, would be required to be
disclosed in response to Item 701 of Regulation S-K.
(v) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution and delivery
by the Selling Stockholder of this Agreement and for the consummation
by such Selling Stockholder of the transactions contemplated herein
and therein, except such as may have been obtained under the Act and
such as may be required by the National Association of Securities
Dealers, Inc. or under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriters and such other approvals as have been obtained.
(vi) None of the sale of the Securities being sold by the
Selling Stockholder, the execution and delivery by the Selling
Stockholder of this Agreement nor the consummation of any other of the
transactions contemplated herein by the Selling Stockholder or the
fulfillment of the terms hereof by the Selling Stockholder will
conflict with, result in a breach of, or constitute a default under
the charter or by-laws of the Selling Stockholder, or the terms of any
indenture or other agreement or instrument to which the Selling
Stockholder is a party or bound, or any order or regulation applicable
to the Selling Stockholder of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Selling Stockholder.
(vii) To the knowledge of the Selling Stockholder, without
independent inquiry or investigation, the representations and
warranties of the Company set forth in Section 1(a) hereof are true
and correct.
(c) Kimberly-Clark represents and warrants to, and agrees with, each
Underwriter that:
(i) Kimberly-Clark has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation.
(ii) Kimberly-Clark has the full corporate power and authority to
enter into and deliver this Agreement and to perform the obligations
to be performed by it hereunder and this Agreement has been duly and
validly authorized, executed and delivered by Kimberly-Clark.
(iii) Neither the execution and delivery by Kimberly-Clark of
this Agreement, nor the performance by Kimberly-Clark of the
obligations to be performed by it hereunder, will conflict with,
result in a breach of, or constitute a default under the charter or
by-laws of Kimberly-Clark, or the terms of any indenture or other
agreement to which Kimberly-Clark is a party or bound, or any rule or
regulation applicable to Kimberly-Clark of any court, regulatory body,
administrative agency, governmental body or arbiter having
jurisdiction over Kimberly-Clark.
(iv) To the knowledge of Kimberly-Clark, without independent
inquiry or investigation, the representations and warranties of the
Company set forth in Section 1(a) hereof are true and correct.
2. Purchase and Sale.(a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the
Selling Stockholder agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Selling
Stockholder, at a purchase price of $32.115 per share, the amount of the
Underwritten Securities set forth opposite such Underwriter's name in
Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Selling Stockholder
hereby grants an option to the several Underwriters to purchase, severally
and not jointly, up to 130,000 shares of the Option Securities at the same
purchase price per share as the Underwriters shall pay for the Underwritten
Securities. Said option may be exercised only to cover over-allotments in
the sale of the Underwritten Securities by the Underwriters. Said option
may be exercised in whole or in part at any time (but not more than once)
on or before the 30th day after the date of the Prospectus upon written or
facsimile notice by the Representatives to the Selling Stockholder setting
forth the number of shares of the Option Securities as to which the several
Underwriters are exercising the option and the settlement date. Delivery
of certificates for the shares of Option Securities by the Selling
Stockholder, and payment therefor to the Selling Stockholder, shall be made
as provided in Section 3 hereof. The number of shares of the Option
Securities to be purchased by each Underwriter shall be the same percentage
of the total number of shares of the Option Securities to be purchased by
the several Underwriters as such Underwriter is purchasing of the
Underwritten Securities, subject to such adjustments as you in your
absolute discretion shall make to eliminate any fractional shares.
(c) Subject to the terms and conditions hereof, this Agreement
creates a legally binding obligation on the date hereof between the parties
hereto to effect the purchase and sale of the Underwritten Securities
pursuant to the terms and conditions of this Agreement.
3. Delivery and Payment. Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option provided for in
Section 2(b) hereof shall have been exercised on or before the third business
day prior to the Closing Date) shall be made at 10:00 AM, New York City time, on
May 30, 1996, or such later date (not later than June 6, 1996) as the
Representatives shall designate, which date and time may be postponed by
agreement among the Representatives, the Company and the Selling Stockholder or
as provided in Section 9 hereof (such date and time of delivery and payment for
the Securities being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the aggregate purchase price of the Securities being sold by
the Selling Stockholder to the Selling Stockholder in Federal or other funds
immediately available in New York City. Delivery of the Underwritten Securities
and the Option Securities shall be made at such location as the Representatives
shall reasonably designate at least one business day in advance of the Closing
Date and payment for such Securities shall be made at the office of Foley &
Lardner, One IBM Plaza, 330 North Wabash Avenue, Suite 3300, Chicago, Illinois.
Certificates for the Securities shall be registered in such names and in such
denominations as the Representatives may request not less than two full business
days in advance of the Closing Date.
The Company and the Selling Stockholder agree to have the Securities
available for inspection, checking and packaging by the Representatives in New
York, New York, not later than 1:00 PM on the business day prior to the Closing
Date.
The Selling Stockholder will pay all applicable state transfer taxes,
if any, involved in the transfer to the several Underwriters of the Securities
to be purchased by them from the Selling Stockholder and the respective
Underwriters will pay any additional stock transfer taxes involved in further
transfers.
If the option provided for in Section 2(b) hereof is exercised after
the second business day prior to the Closing Date, the Company will deliver (at
the expense of the Company) to the Representatives, at such location as the
Representatives shall reasonably designate, on the date specified by the
Representatives (which shall be within three business days after exercise of
said option), certificates for the Option Securities in such names and
denominations as the Representatives shall have requested against payment of the
purchase price thereof to the Selling Stockholder in Federal or other funds
immediately available in New York City. If settlement for the Option Securities
occurs after the Closing Date, the Company, the Selling Stockholder and
Kimberly-Clark will deliver to the Representatives on the settlement date for
the Option Securities, and the obligation of the Underwriters to purchase the
Option Securities shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 6 hereof and all
references in this Agreement to "Closing Date" shall be deemed to be a reference
to such settlement date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
5. Agreements.
(a) The Company agrees with the several Underwriters that:
(i) The Company will use its best efforts to cause the
Registration Statement, and any amendment thereof, if not effective at
the Execution Time, to become effective. Prior to the termination of
the Offering, the Company will not file any amendment of the
Registration Statement or supplement to the Prospectus without your
prior consent, which consent shall not be unreasonably withheld.
Subject to the foregoing sentence, if the Registration Statement has
become or becomes effective pursuant to Rule 430A, or filing of the
Prospectus is otherwise required under Rule 424(b), the Company will
file the Prospectus, properly completed, pursuant to Rule 424(b)
within the time period prescribed and will provide evidence reasonably
satisfactory to the Representatives of such timely filing. The
Company will promptly advise the Representatives (A) when the
Registration Statement shall have become effective, (B) when the
Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b), (C) when, prior
to the termination of the Offering, any amendment to the Registration
Statement shall have been filed or become effective, (D) of any
request by the Commission for any amendment of the Registration
Statement or supplement to the Prospectus or for any additional
information, (E) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (F)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(ii) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it
shall be necessary to supplement the Prospectus to comply with the Act
or the rules thereunder, the Company promptly will prepare and file
with the Commission, subject to paragraph (a) (i) of this Section 5,
an amendment or supplement which will correct such statement or
omission or effect such compliance.
(iii) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(iv) The Company will furnish to the Representatives and counsel
for the Underwriters, without charge, signed copies of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act, as many copies of the Prospectus
and each Preliminary Prospectus and any supplements thereto as the
Representatives may reasonably request.
(v) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Securities and
will pay the fee of the National Association of Securities Dealers,
Inc., in connection with its review of the Offering.
(vi) The Company will furnish to its stockholders annual reports
containing financial statements certified by independent public
accountants. During the period of five years from the date hereof,
the Company will promptly deliver to the Representatives and, upon
request, to each of the other Underwriters, (A) copies of each annual
report of the Company containing financial statements certified by
independent public accountants and each other report furnished by the
Company to its stockholders, (B) as soon as they are available, copies
of any other reports (financial or other) that the Company shall
publish or otherwise make available to any of its security holders as
such, and (C) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission. So
long as the Company shall have active subsidiaries, such financial
statements will be on a consolidated basis to the extent the accounts
of the Company and its subsidiaries are consolidated in reports
furnished to its stockholders generally. Separate financial
statements shall be furnished for all subsidiaries whose accounts are
not consolidated but which at the time are significant subsidiaries as
defined in the Act and the rules and regulations thereunder.
(vii) The Company will use its best efforts to maintain the
listing of the Securities to be sold hereunder on the New York Stock
Exchange, unless the Company's Board of Directors determines
otherwise.
(viii) The Company will promptly deliver to the
Representatives copies of all correspondence to and from, and all
documents issued to and by, the Commission in connection with the
registration of the Securities under the Act.
(ix) The Company will not become, and will not permit any of its
subsidiaries to become, an "investment company" within the meaning of
the Investment Company Act.
(x) Prior to the Closing Date, the Company will issue no press
release or other communication directly or indirectly and hold no
press conference with respect to the Company, Midwest Express or
Astral, or with respect to the financial condition, results of
operations, business, properties, assets or liabilities of any of
them, or the Offering, without your prior written consent, which
consent shall not be unreasonably withheld.
(b) Other than pursuant to this Agreement, the Selling Stockholder
agrees with the several Underwriters that it will not for a period of 120
days following the Execution Time, without the prior written consent of the
Representatives, offer, sell or contract to sell, or otherwise dispose of,
directly or indirectly, or announce the offering of, any shares of Common
Stock beneficially owned by it, or any securities convertible into, or
exchangeable for, shares of Common Stock, other than shares of Common Stock
(i) disposed of as bona fide gifts or (ii) transferred in a non-market
private placement to an affiliate of the Selling Stockholder who shall
agree in writing prior to such transfer to be bound by the terms of this
Section 5(b). To document the Underwriters compliance with the reporting
and withholding provisions of the Tax Equity and Fiscal Responsibility Act
of 1982 with respect to the transactions herein contemplated, the Selling
Stockholder agrees to deliver to you prior to or at the Closing Date a
properly completed and executed United States Treasury Department Form W-9
(or other applicable form or statement specified by Treasury Department
regulations in lieu thereof).
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwritten Securities and the
Option Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company, the Selling
Stockholder and Kimberly-Clark contained herein as of the Execution Time, the
Closing Date and any settlement date pursuant to Section 3 hereof, to the
accuracy of the statements of the Company, the Selling Stockholder and Kimberly-
Clark made in any certificates pursuant to the provisions hereof, to the
performance in all material respects by the Company, the Selling Stockholder and
Kimberly-Clark of their respective obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement shall have become effective not later than
(i) 6:00 PM New York City time on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 9:30 AM New York City time on the
business day following the day on which the public offering price was
determined, if such determination occurred after 3:00 PM New York City time
on such date; if filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus shall have been filed in
the manner and within the time period required by Rule 424(b); and no stop
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted
or threatened.
(b) The Company shall have furnished to the Representatives the
opinion of Foley & Lardner, special counsel for the Company, dated the
Closing Date, to the effect that:
(i) the Company has been duly incorporated and each of the
Company and Midwest Express is validly existing as a corporation in
good standing under the laws of the State of Wisconsin, with full
corporate power and authority to own its properties and conduct its
business as described in the Registration Statement and Prospectus, to
execute and deliver the Agreement and to perform the obligations to be
performed by it thereunder;
(ii) Astral is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation with full
corporate power and authority to own its properties and to conduct its
business as described in the Registration Statement and the
Prospectus;
(iii) each of the Company, Midwest Express and Astral is duly
qualified or licensed to do business as a foreign corporation by, and
is in good standing in, each U.S. jurisdiction in which its ownership,
leasing, licensing or use of property and assets or the conduct of its
business makes such qualification necessary, except in those
jurisdictions where the failure, individually or in the aggregate, to
be so licensed or qualified or in good standing would not have a
material adverse effect on the financial condition, assets, operations
or prospects of the Company, Midwest Express and Astral, taken as a
whole;
(iv) except as described in the Prospectus, (A) all of the issued
and outstanding shares of capital stock of Midwest Express are owned
of record directly by the Company and all of the issued and
outstanding shares of capital stock of Astral are owned of record
directly by Midwest Express; (B) all of such shares of Midwest Express
and Astral have been duly and validly authorized and issued and are
fully paid and non-assessable and (C) to such counsel's knowledge,
there are no outstanding rights, subscriptions, warrants, calls,
preemptive rights, options or other agreements of any kind with
respect to the capital stock of Midwest Express or Astral;
(v) to such counsel's knowledge and except as described in the
Prospectus, none of the Company, Midwest Express nor Astral has any
interest in a joint venture or partnership which interest requires
disclosure in the Registration Statement and which has not been so
disclosed;
(vi) this Agreement has been duly authorized, executed and
delivered by the Company;
(vii) the Company has an authorized capital stock as set
forth in the Prospectus under the heading "Description of Capital
Stock;" the outstanding shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid, non-
assessable and free of preemptive rights;
(viii) (A) the Securities have been duly and validly
authorized and issued and are fully paid and non-assessable and have
been approved for listing on the New York Stock Exchange upon notice
of issuance, (B) delivery of certificates for the Securities pursuant
to this Agreement will pass valid and marketable title thereto to each
Underwriter that is acting in good faith and that is not aware of any
adverse claim with respect thereto, free and clear of any pledge,
lien, encumbrance, claim or preemptive rights, and (C) except as
described in the Prospectus and to such counsel's knowledge, there are
no outstanding rights, subscriptions, warrants, calls, preemptive
rights, options or other arrangements of any kind with respect to the
capital stock of the Company;
(ix) the capital stock of the Company, including the Securities,
conforms in all material respects to the description thereof contained
in the Registration Statement and the Prospectus; and the certificates
for the Securities are in due and proper form;
(x) to the knowledge of such counsel, all consents, approvals,
authorizations or orders of or filings with any U.S. court or
governmental agency or body required in connection with consummation
by the Company and Midwest Express of the transactions contemplated in
this Agreement have been obtained in all jurisdictions, except such
counsel need express no opinion as to any necessary qualification in
connection with the purchase and distribution of the Securities by the
Underwriters (A) under the securities or Blue Sky laws of any
jurisdiction; (B) with the National Association of Securities Dealers,
Inc.; or (C) as to matters relating to aviation laws;
(xi) neither the execution, delivery and performance of this
Agreement by the Company, nor the consummation by the Company of the
transactions contemplated hereby, will conflict with or result in any
breach of, or constitute a default under (or constitute any event
which with notice, lapse of time, or both, would constitute a breach
of or default under), any provisions of the charter or by-laws of the
Company, Midwest Express or Astral or under any provision of any
indenture, mortgage, deed of trust, credit agreement or other
agreement known to such counsel and identified in the Registration
Statement and to which the Company, Midwest Express or Astral is a
party or by which any of them or their respective properties may be
bound or affected, or under any federal, state, local or foreign law,
rule, regulation, judgment, order or decree applicable to the Company,
Midwest Express or Astral, except such counsel need express no opinion
with respect to this Section 6(b)(xi) as to (A) the securities or Blue
Sky laws of any jurisdiction; (B) the National Association of
Securities Dealers, Inc.; or (C) matters relating to aviation laws;
(xii) to the knowledge of such counsel and without
independent investigation, except as described in the Prospectus,
there are no proceedings or other actions, suits or investigations
pending or threatened before any court or before or by any public,
regulatory or government agency or body, including without limitation
any state regulatory agency, board or department, against the Company,
Midwest Express or Astral or any of their respective properties, of a
character that are required to be described in the Registration
Statement and the Prospectus but are not so described;
(xiii) the descriptions in the Registration Statement of laws,
regulations and rules, of legal and governmental proceedings and of
contracts, agreements, leases and other documents under the headings
"Risk Factors -- Anti-Takeover Provisions," "Business -- Legal
Proceedings," "Management -- Pension Plan, and -- Agreements with
Named Executive Officers," "Certain Transactions," "Relationship with
Kimberly-Clark," and "Description of Capital Stock" have been reviewed
by such counsel and are accurate in all material respects, and comply
as to form in all material respects with the applicable requirements
of the Act and the rules and regulations thereunder;
(xiv) the Registration Statement has become effective under
the Act; any required filing of the Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the knowledge of
such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened and the Registration
Statement and the Prospectus (and any supplements thereto) (other than
the financial statements and other financial and statistical
information contained therein or omitted therefrom as to which such
counsel need express no opinion) comply as to form in all material
respects with the applicable requirements of the Act and the rules
thereunder;
(xv) to such counsel's knowledge there are no contracts,
licenses, agreements, leases or documents of a character which are
required to be filed as exhibits to the Registration Statement or to
be summarized or described in the Prospectus which have not been so
filed, summarized or described;
(xvi) to such counsel's knowledge and except as disclosed in
the Prospectus, no person has the right, contractual or otherwise, to
cause the Company to issue, or register pursuant to the Act, any
shares of capital stock of the Company, upon the issue and sale of the
Securities to be sold by the Company and the Selling Stockholder to
the Underwriters; and
(xvii) none of the Company, Midwest Express nor Astral is an
"investment company" or a person "controlled by" an "investment
company" within the meaning of the Investment Company Act.
In addition, such counsel shall state that they have no reason to believe
that at the Effective Date the Registration Statement contained any untrue
statement of a material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus, as of its date and the Closing Date,
included or includes any untrue statement of a material fact or omitted or
omits to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Wisconsin, the United States or the Delaware General Corporation Law, to
the extent they deem proper and specified in such opinion, upon the opinion
of other counsel of good standing whom they believe to be reliable and who
are satisfactory to counsel for the Underwriters, and (B) as to matters of
fact, to the extent they deem proper, on certificates of responsible
officers of the Company and Midwest Express and public officials. Such
counsel may also state therein that all references in such opinion to
nonassessability of shares shall be subject to the effects of Section
180.0622(2)(b) of the Wisconsin Business Corporation Law, including
judicial interpretations thereof (and of the substantially identical
predecessor statute, Section 180.40(6), in effect prior to January 1,
1991).
(c) The Selling Stockholder and Kimberly-Clark shall have furnished
to the Representatives the opinion of O. George Everbach, Esq., Senior Vice
President - Law and Government Affairs of Kimberly-Clark, dated the Closing
Date, to the effect that:
(i) the Selling Stockholder has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Nevada, with full corporate power and authority to own
its properties and conduct its business, to execute and deliver the
Agreement and to sell and deliver the Securities to be sold by it
hereunder;
(ii) this Agreement has been duly authorized, executed and
delivered by the Selling Stockholder and the Selling Stockholder has
full legal right and authority to sell, transfer and deliver in the
manner provided in this Agreement the Securities being sold by it
hereunder;
(iii) the delivery by the Selling Stockholder to the several
Underwriters of certificates for the Securities being sold hereunder
by the Selling Stockholder against payment therefor as provided
herein, will pass good and marketable title to such Securities to the
several Underwriters, free and clear of all liens, encumbrances,
equities and claims whatsoever;
(iv) all consents, approvals, authorizations or orders of or
filings with any court or government agency or body required in
connection with the consummation by the Selling Stockholder of the
transactions contemplated in this Agreement have been obtained in all
jurisdictions, except such counsel need express no opinion as to the
necessity of receiving any qualification under the securities or Blue
Sky laws of any jurisdiction in connection with the purchase and
distribution of the securities by the Underwriters or from the
National Association of Securities Dealers, Inc.;
(v) none of the execution, performance and delivery of this
Agreement by the Selling Stockholder, the sale of the Securities being
sold by the Selling Stockholder nor the consummation of any other of
the transactions contemplated in this Agreement by the Selling
Stockholder or the fulfillment of the terms hereof by the Selling
Stockholder will conflict with, result in a breach of, or constitute a
default under the charter or by-laws of the Selling Stockholder or the
terms of any material indenture or other agreement or instrument known
to such counsel and to which the Selling Stockholder is a party or
bound, or any order or regulation known to such counsel to be
applicable to the Selling Stockholder of any court, regulatory body,
administrative agent, governmental body or arbitrator having
jurisdiction over the Selling Stockholder;
(vi) Kimberly-Clark has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with full corporate power and authority to own its
properties and conduct its business and to execute and deliver this
Agreement and perform the obligations to be performed by it hereunder;
(vii) this Agreement has been duly authorized, executed and
delivered by Kimberly-Clark;
(viii) all consents, approvals, authorizations or orders of or
filings with any court or governmental agency or body required in
connection with the consummation by Kimberly-Clark of the transactions
contemplated in this Agreement have been obtained in all
jurisdictions, except such counsel need express no opinion as to any
necessary qualification in connection with the purchase and
distribution of the Securities by the Underwriters (A) under the
securities or Blue Sky laws of any jurisdiction; or (B) with the
National Association of Securities Dealers, Inc.; and
(ix) neither the execution, delivery and performance of this
Agreement by Kimberly-Clark, nor the consummation by Kimberly-Clark of
the transactions contemplated hereby and thereby, will conflict with
or result in any breach of, or constitute a default under (or
constitute any event which with notice, lapse of time, or both, would
constitute a breach of or default under), any provisions of the
charter or by-laws of Kimberly-Clark or any of its consolidated
subsidiaries or under any provision of any material indenture,
mortgage, deed of trust, credit agreement or other agreement or
instrument known to such counsel and to which Kimberly-Clark or any of
its consolidated subsidiaries is a party or by which any of them or
their respective properties may be bound or affected, or under any
federal, state, local or foreign law, rule, regulation, judgment,
order or decree applicable to Kimberly-Clark or any of its
consolidated subsidiaries.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Texas, the United States or the Delaware General Corporation Law, to the
extent he deems proper and specified in such opinion, upon the opinion of
other counsel of good standing whom he believes to be reliable and who are
satisfactory to counsel for the Underwriters, and (B) as to matters of
fact, to the extent he deems proper, on certificates of responsible
officers of the Selling Stockholder, Kimberly-Clark and public officials.
(d) The Company shall have furnished to the Representatives the
opinion of Bagileo, Silverberg & Goldman, L.L.P., special regulatory
counsel for the Company, Midwest Express and Astral, dated the Closing
Date, to the effect that:
(i) each of Midwest Express and Astral is an "air carrier" and
each of Midwest Express and Astral is (and after consummation of the
transactions contemplated herein will be) a "citizen of the United
States", in each case within the meaning of the Federal Aviation Act
of 1958, as amended or recodified;
(ii) each of the Company, Midwest Express and Astral has such
licenses, certificates, permits and other governmental authorizations
from the Department of Transportation, as successor to the Civil
Aeronautics Board, the Federal Aviation Administration, and any other
federal transportation or aviation regulatory authority as are
necessary to conduct its business in the manner described in the
Prospectus, and no such license, certificate, permit or other
governmental authorization is the subject of any "show cause" or other
order of, or any proceeding before, or any investigation by, any such
authority (other than proceedings for the renewal of temporary
rights), which in the opinion of such counsel might reasonably result
in a final order impairing the validity of such licenses,
certificates, permits and other governmental authorizations;
(iii) to the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator
involving the Company, Midwest Express or Astral or their property and
involving licenses, certificates, permits or other governmental
authorizations issued by or from the Department of Transportation, the
Federal Aviation Administration, or any other federal transportation
or aviation regulatory authority pursuant to (A) the Federal Aviation
Act of 1958, as amended or recodified or (B) any rule or regulation
promulgated by the Department of Transportation or Federal Aviation
Administration ((A) and (B) together, "Aviation Laws") that is of a
character required to be disclosed in the Registration Statement which
is not adequately disclosed in the Prospectus; and the statements in
the Prospectus under the heading "Business -- Regulation" fairly
summarize in all material respects the matters therein described;
(iv) no consent, approval, authorization, filing with or order of
any court or governmental agency or body involving Aviation Laws is
required for consummation of the transactions contemplated herein,
other than as has been obtained or performed;
(v) neither the issue and sale of the Securities being sold by
the Selling Stockholder, nor the consummation of any other of the
transactions herein contemplated by the Company, the Selling
Stockholder or Kimberly-Clark, nor the fulfillment of the terms hereof
by the Company, the Selling Stockholder or Kimberly-Clark, will
conflict with, or result in a breach or violation of, any Aviation
Law;
(vi) there are no transfer taxes or other similar fees or charges
required under any Aviation Law to be paid in connection with the
execution, delivery and performance of this Agreement or the sale by
the Selling Stockholder of the Securities; and
(vii) the descriptions in the Registration Statement of laws,
regulations and rules, of legal and governmental proceedings under the
headings "Risk Factors -- Age of Jet Aircraft Fleet -- Stage 3
Compliance, "Risk Factors -- Government Regulation," "Business --
Fleet Equipment, -- Noise Abatement, -- Flight Data Recorders and --
Maintenance Requirements" and "Business -- Regulation" have been
reviewed by such counsel and are true, complete and accurate in all
material respects.
In rendering such opinion, such counsel may rely as to matters of fact, to
the extent he deems proper, on certificates of responsible officers of the
Company, Midwest Express, Astral and public officials.
(e) The Representatives shall have received from Winston & Strawn,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the issuance and sale of the Securities, the
Registration Statement, the Prospectus and other related matters as the
Representatives may reasonably require, and the Company, the Selling
Stockholder and Kimberly-Clark shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to
pass upon such matters.
(f) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the chief executive officer and the
principal financial or accounting officer of the Company in their
capacities as such, dated the Closing Date, to the effect that the signers
of such certificate have carefully examined the Registration Statement, the
Prospectus, any supplement to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with the
same effect as if made on the Closing Date and the Company has
complied in all material respects with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
under this Agreement at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) subsequent to the date of the most recent financial
statements included in the Registration Statement and the Prospectus
(exclusive of any supplement thereto), and except as set forth or
contemplated in the Prospectus (exclusive of any supplement thereto),
(A) none of the Company, Midwest Express or Astral has incurred any
material liabilities or obligations, direct or contingent, nor entered
into any material transactions not in the ordinary course of business,
and (B) there has not been any material adverse change in the
financial condition, assets, operations or prospects of the Company,
Midwest Express and Astral considered as a whole, or any change in the
capital stock or long-term debt of the Company, Midwest Express and
Astral considered as a whole.
(g) The Selling Stockholder shall have furnished to the
Representatives a certificate of the Selling Stockholder, signed by the
president and treasurer of the Selling Stockholder in their capacities as
such, and dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Prospectus, any supplement to the Prospectus and this Agreement and that
the representations and warranties of the Selling Stockholder in this
Agreement are true and correct in all material respects on and as of the
Closing Date to the same effect as if made on the Closing Date.
(h) Kimberly-Clark shall have furnished to the Representatives a
certificate of Kimberly-Clark, signed by the chief financial officer and
the treasurer of Kimberly-Clark in their capacities as such, dated the
Closing Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectus, any
supplement to the Prospectus and this Agreement and that the
representations and warranties of Kimberly-Clark in this Agreement are true
and correct in all material respects on and as of the Closing Date with the
same effect as if made on the Closing Date;
(i) At the Execution Time and at the Closing Date, Deloitte & Touche
LLP shall have furnished to the Representatives a letter or letters, dated
respectively as of the date of this Agreement and as of the Closing Date,
in form and substance reasonably satisfactory to the Representatives,
confirming that they are independent accountants within the meaning of the
Act and the applicable published rules and regulations thereunder and
stating in effect that:
(i) in their opinion the audited financial statements included
in the Registration Statement and the Prospectus and reported on by
them comply in form in all material respects with the applicable
accounting requirements of the Act and the related published rules and
regulations;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company, Midwest Express and Astral;
their limited review in accordance with standards established by the
American Institute of Certified Public Accountants of the unaudited
interim financial information for the three-month period ended March
31, 1996, and as at March 31, 1996; carrying out certain specified
procedures (but not an audit in accordance with generally accepted
auditing standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such letter; a
reading of the minutes of the meetings of the stockholders, directors
and executive and audit committees of the Company, Midwest Express and
Astral; and inquiries of certain officials of the Company, Midwest
Express and Astral who have responsibility for financial and
accounting matters of the Company, Midwest Express and Astral,
respectively, as to transactions and events subsequent to December 31,
1995, nothing came to their attention which caused them to believe
that:
(1) the unaudited financial statements included in the
Registration Statement and the Prospectus do not comply in form
in all material respects with applicable accounting requirements
of the Act and with the published rules and regulations of the
Commission with respect to registration statements on Form S-1;
and said unaudited financial statements are not in conformity
with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial
statements included in the Registration Statement and the
Prospectus;
(2) with respect to the period subsequent to March 31,
1996, there were any changes, at a specified date not more than
five business days prior to the date of the letter, in the
consolidated long-term debt of the Company, Midwest Express and
Astral or preferred or common stock of the Company, Midwest
Express and Astral or decreases in the consolidated net current
assets or shareholders' equity of the Company, Midwest Express
and Astral as compared with the amounts shown on the March 31,
1996 consolidated balance sheet included in the Registration
Statement and the Prospectus, or for the period from April 1,
1996 to such specified date there were any decreases, as compared
with the corresponding period in the preceding year; in net sales
or income (loss) from operations or in total or per share amounts
of net income (loss)(for both primary earnings and fully diluted
earnings) of the Company, Midwest Express and Astral, except in
all instances for changes or decreases set forth in such letter,
in which case the letter shall be accompanied by an explanation
by the Company as to the significance thereof unless said
explanation is not deemed necessary by the Representatives; and
(iii) on the basis of reading the unaudited pro forma
financial data included in the Registration Statement and the
Prospectus, carrying out specified procedures, inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters, and proving the arithmetic accuracy of the
application of the pro forma adjustments to the historical amounts in
the pro forma financial statement data, nothing came to their
attention which caused them to believe that the pro forma financial
data does not comply in form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation S-X or
that the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of such statements.
(iv) they have performed certain other specified procedures as a
result of which they determined that certain information specified by
the Representatives of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical information
derived from the general accounting records of the Company, Midwest
Express and Astral) set forth in the Registration Statement and the
Prospectus agrees with the accounting records of the Company, Midwest
Express and Astral, excluding any questions of legal interpretation.
References to the Prospectus in this paragraph (i) include any
supplements thereto at the date of the letter.
(j) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall not
have been (i) any change or decrease specified in the letter or letters
referred to in paragraph (i) of this Section 6 or (ii) any change, or any
development involving a prospective change, in or affecting the business or
properties of the Company, Midwest Express and Astral the effect of which,
in any case referred to in clause (i) or (ii) above, is, in the reasonable
judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the public offering or delivery
of the Securities as contemplated by the Registration Statement (exclusive
of any amendment thereof) and the Prospectus (exclusive of any supplement
thereto).
(k) Prior to the Closing Date, the Company, the Selling Stockholder
and Kimberly-Clark shall have furnished to the Representatives such further
information, certificates and documents as the Representatives may
reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and its counsel, this Agreement and all
obligation of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to the Company in writing or by telephone or telegraph confirmed
in writing.
7. Expenses; Reimbursement of Underwriters' Expenses.
(a) The Company, the Selling Stockholder and Kimberly-Clark covenant
and agree with one another and with the several Underwriters that the
Company and Midwest Express will be jointly and severally liable for the
payment of and will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and the
sale of the Securities and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements
thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing, producing or
distributing this Agreement, the Blue Sky Memorandum and any other
customary documents in connection with the offering, purchase, sale and
delivery of the Securities; (iii) all expenses in connection with the
qualification of the Securities for offering and sale under state and
Canadian securities laws as provided in Section 5(a)(v) hereof, including
the fees and disbursements of counsel for the Underwriters in connection
with such qualification in an amount not to exceed $9,000 (with the
Underwriters responsible for any amount in excess of such amount); (iv) all
expenses in connection with authorizing the Securities for trading on the
New York Stock Exchange; (v) the filing fees incident to securing any
required review by the National Association of Securities Dealers, Inc. of
the terms of the sale of the Securities, including the fees and
disbursements of counsel for the Underwriters in connection therewith in an
amount not to exceed $5,000 (with the Underwriters responsible for any
amount in excess of such amount); (vi) the cost of preparing stock
certificates; (vii) the cost and charges of any transfer agent or
registrar; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise
specifically provided for in this Section.
(b) If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the Underwriters
set forth in Section 6 hereof is not satisfied, because of any termination
pursuant to Section 10 hereof or because of any refusal, inability or
failure on the part of the Company, the Selling Stockholder or Kimberly-
Clark to perform in all material respects any agreement herein or comply in
all material respects with any provision hereof other than by reason of a
default by any of the Underwriters, the Company, the Selling Stockholder
and Kimberly-Clark, jointly and severally, agree to reimburse the
Underwriters severally upon demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have
been incurred by them in connection with the proposed purchase and sale of
the Underwritten Securities and/or the Option Securities, as the case may
be.
8. Indemnification and Contribution.
(a) The Company, the Selling Stockholder and Kimberly-Clark, severally
and not jointly, agree to indemnify and hold harmless each Underwriter and
each person who controls any Underwriter within the meaning of the Act
against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Act, the
Securities Exchange Act of 1934 or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement for the registration of the
Securities as originally filed or in any amendment thereof, or in any
Preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action or reasonably incurred by them in connection with pursuing its
rights to indemnification provided by this Section 8; provided, however,
that (i) none of the Company, the Selling Stockholder nor Kimberly-Clark
will be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives specifically for use therein, and (ii) such indemnity with
respect to any Preliminary Prospectus shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) from whom the
person asserting any such loss, claim, damage or liability purchased the
Securities which are the subject thereof if it shall be established that
such person was not sent or given a copy of the Prospectus (or the
Prospectus as supplemented) at or prior to the confirmation of the sale of
such Securities to such person in any case where such delivery is required
by the Act if the Company has previously furnished copies thereof in
sufficient quantity to such Underwriter and the untrue statement or
omission of a material fact contained in such Preliminary Prospectus was
corrected in the Prospectus (or the Prospectus as supplemented). This
indemnity agreement will be in addition to any liability which the Company,
the Selling Stockholder and Kimberly-Clark may otherwise have.
Without limiting the full extent of the Company's agreement to
indemnify each Underwriter, as herein provided, each of the Selling
Stockholder and Kimberly-Clark shall be liable under (i) the indemnity
agreements contained in paragraph (a) of this Section 8 only to the extent
such losses, claims, damages or liabilities arise out of or are based upon
an untrue statement or alleged untrue statement or omission or alleged
omission of a material fact to which the Selling Stockholder or Kimberly-
Clark had knowledge, without independent inquiry or investigation, and (ii)
the representations and warranties contained in Sections 1 (b) and (c)
hereof in the aggregate for such indemnity agreements or representations
and warranties only for an amount not exceeding the net proceeds received
by the Selling Stockholder from the sale of Shares hereunder.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of the Act, the Selling Stockholder and Kimberly-Clark, to the same
extent as the foregoing indemnity from the Company, the Selling Stockholder
and Kimberly-Clark to each Underwriter, but only to the extent such loss,
claim, damage or liability results from written information relating to
such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for use in the
preparation of the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have. Each of the Company, the Selling
Stockholder and Kimberly-Clark acknowledges that the statements set forth
in the last paragraph of the cover page and under the heading
"Underwriting" in the Prospectus and in any Preliminary Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in the Prospectus or in any Preliminary
Prospectus, and you, as the Representatives, confirm that such statements
are correct.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under this Section 8. In case any such action is
brought against any indemnified party, and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be entitled
to appoint counsel reasonably satisfactory to such indemnified party to
represent the indemnified party in such action; provided, however, that if
the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall
have the right to defend such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to appoint counsel to defend such
action and approval by the indemnified party of such counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with
the proviso to the next preceding sentence (it being understood, however,
that the indemnifying party shall not be liable for the expenses of more
than one separate counsel (plus any local counsel), approved by the
Representatives in the case of paragraph (a) of this Section 8 (such
approval not to be unreasonably withheld), representing the indemnified
parties under such paragraph (a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) or
(b), as the case may be, of this Section 8 is due in accordance with its
terms but is for any reason held by a court to be unavailable from the
Company, the Selling Stockholder, Kimberly-Clark or the Underwriters, as
the case may be, on grounds of policy or otherwise, the Company, the
Selling Stockholder or Kimberly-Clark, as the case may be, and the
Underwriters shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively, "Losses")
to which the Company, the Selling Stockholder or Kimberly-Clark, as the
case may be, and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by
the Company, the Selling Stockholder and Kimberly-Clark on the one hand and
by the Underwriters on the other from the offering of the Securities;
provided, however, that (y) in no case shall any Underwriter (except as may
be provided in the agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the underwriting
discount applicable to the Securities purchased by such Underwriter
hereunder and (z) no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company, the Selling Stockholder and
Kimberly-Clark and the Underwriters shall contribute in such proportion as
is appropriate to reflect not only such relative benefits but also the
relative fault of the Company, the Selling Stockholder and Kimberly-Clark
on the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company, the
Selling Stockholder and Kimberly-Clark shall be deemed to be equal to the
total net proceeds from the offering (before deducting expenses), and
benefits received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as set forth on
the cover page of the Prospectus. Relative fault shall be determined by
reference to whether any alleged untrue statement or omission relates to
information provided by the Company, the Selling Stockholder or Kimberly-
Clark, on the one hand, or by the Underwriters, on the other. The Company,
the Selling Stockholder and Kimberly-Clark and the Underwriters agree that
it would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. For purposes of
this Section 8, each person who controls an Underwriter within the meaning
of the Act shall have the same rights to contribution as such Underwriter,
and each person who controls the Company within the meaning of the Act,
each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to clauses (y) and (z) of
this paragraph (d). Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or preceding
against such party in respect of which a claim for contribution may be made
against another party or parties under this paragraph (d), notify such
party or parties from whom contribution may be sought, but the omission so
to notify such party or parties shall not relieve the party or parties from
whom contribution may be sought from any other obligation it or they may
have hereunder or otherwise than under this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter, the
Selling Stockholder, Kimberly-Clark or the Company. In the event of a default
by any Underwriter as set forth in this Section 9, the Closing Date shall be
postponed for such period, not exceeding seven days, as the Representatives
shall determine in order that the required changes in the Registration Statement
and the Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company, the Selling Stockholder, Kimberly-Clark
and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
and the Selling Stockholder prior to delivery of and payment for the Securities,
if prior to such time (i) trading in the Company's Common Stock shall have been
suspended by the Commission or trading in securities generally on the New York
Stock Exchange or the Nasdaq National Market shall have been suspended or
limited or minimum prices shall have been established on either of such Exchange
or Market, (ii) a banking moratorium shall have been declared either by Federal
or New York State authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war or other calamity or crisis the effect of which on financial
markets is such as to make it, in the judgment of the Representatives,
impracticable to market the Securities.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers, of the Selling Stockholder, of Kimberly-Clark and of
the Underwriters set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter, the Selling Stockholder, Kimberly-Clark or the Company or any
of the officers, directors or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, (a) if sent to the Representatives, will be
mailed, delivered or telegraphed and confirmed to them, care of Salomon Brothers
Inc, at Seven World Trade Center, New York, New York, 10048, Fax (212) 783-7000,
with a copy to Robert W. Baird & Co. Incorporated at 777 East Wisconsin Avenue,
Milwaukee, Wisconsin 53202, Fax (414) 765-3912, and Robert F. Wall, Esq.,
Winston & Strawn, 35 West Wacker Drive, Chicago, Illinois 60601, Fax (312) 558-
5700; or (b) if sent to the Company, will be mailed, delivered or telegraphed
and confirmed to it at Midwest Express Holdings, Inc., 6744 South Howell Avenue,
Oak Creek, Wisconsin 53154-1402, Fax (414) 747-4000, or if sent to the Selling
Stockholder, will be mailed, delivered or telegraphed and confirmed to it at P.
O. Box 619100, Dallas, Texas, 75261-9100, Fax (214) 281-1578, or if sent to
Kimberly-Clark, will be mailed, delivered or telegraphed and confirmed to it at
P.O. Box 619100, Dallas, Texas 75261-9100, Fax (214) 281-1578, with a copy in
each instance to Phillip J. Hanrahan, Esq., Foley & Lardner, 777 East Wisconsin
Avenue, Milwaukee, Wisconsin 53202, Fax (414) 297-4900.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York.
[signature page follows]
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company, the Selling Stockholder, Kimberly-Clark and the several Underwriters.
Very truly yours,
MIDWEST EXPRESS HOLDINGS, INC.
By: /s/ Timothy E. Hoeksema
----------------------------
Title: Chairman/President &
Chief Executive Officer
K-C NEVADA, INC.
By: /s/ W. Anthony Gamron
---------------------------
Title: Vice President &
Treasurer
KIMBERLY-CLARK CORPORATION
By: /s/ W. Anthony Gamron
----------------------------
Title: Vice President &
Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Salomon Brothers Inc
Robert W. Baird & Co. Incorporated
By: Salomon Brothers Inc
By: /s/ Jenny A. Hourihan
- ---------------------------
Director
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
SCHEDULE I
Underwriters Number of Shares of
Underwritten
Securities
To Be Purchased
Salomon Brothers Inc 579,286
Robert W. Baird & Co Incorporated 579,285
---------
Total 1,158,571
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