<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 2, 1997
REGISTRATION NUMBER 333-37375
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 4 TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
MIDWAY AIRLINES CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 4512 36-3915637
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification
incorporation or organization) Classification Code Number) No.)
</TABLE>
------------------------
300 WEST MORGAN STREET
SUITE 1200
DURHAM, NORTH CAROLINA 27701
(919) 956-4800
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
------------------------
JONATHAN S. WALLER, ESQ.
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
MIDWAY AIRLINES CORPORATION
300 WEST MORGAN STREET, SUITE 1200
DURHAM, NORTH CAROLINA 27701
(919) 956-4800 (PHONE)
(919) 956-4801 (FAX)
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------------
COPIES TO:
<TABLE>
<S> <C>
HOWARD WOLF, ESQ. JOEL S. KLAPERMAN, ESQ.
Fulbright & Jaworski L.L.P. Shearman & Sterling
1301 McKinney, Suite 5100 599 Lexington Avenue
Houston, Texas 77010-3095 New York, New York 10022
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
- --------------
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
- --------------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
EXPLANATORY NOTE
This Amendment No. 4 to the Registration Statement on Form S-1 (File No.
333-37375) (the "Registration Statement") is being filed solely for the purpose
of filing certain exhibits, and no changes or additions are being made hereby to
the prospectus (the "Prospectus") that forms a part of this Registration
Statement. Accordingly, the Prospectus has been omitted from this filing.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with the Offering, all of which shall
be borne by the Company, are:
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee............... $ 21,467
NASD Filing Fee................................................... 6,500
Nasdaq National Market Listing Fee................................ 1,000
Legal Fees and Expenses........................................... 200,000
Accounting Fees and Expenses...................................... 350,000
Blue Sky Fees and Expenses (including legal fees)................. 25,000
Printing Expenses................................................. 200,000
Transfer Agent and Registrar Fees................................. 15,000
Miscellaneous..................................................... 31,033
---------
TOTAL......................................................... $ 850,000
---------
---------
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to Section 145 of the GCL, the Company generally has the power to
indemnify its current and former directors, officers, employees and agents
against expenses and liabilities incurred by them in connection with any suit to
which they are, or threatened to be made, a party by reason of their serving in
such positions so long as they acted in good faith and in a manner they
reasonably believed to be in, or not opposed to, the best interests of the
Company, and with respect to any criminal action, they had not reasonable cause
to believe their conduct was lawful. With respect to suits by or in the right of
the Company, however, indemnification is generally limited to attorneys' fees
and other expenses and is not available if such person is adjudged to be liable
to the Company unless the court determines that indemnification is appropriate.
The statute expressly provides that the power to indemnify authorized thereby is
not exclusive of any rights granted under any bylaw, agreement, vote of
stockholders or disinterested directors, or otherwise. The Company also has the
power to purchase and maintain insurance for such persons.
The above discussion of Section 145 of the GCL is not intended to be
exhaustive and is qualified in its entirety by such statute.
Reference is made to the form of the Underwriting Agreement, filed as
Exhibit 1.1 hereto, which contains provisions for indemnification of the
Company, its directors, officers and any controlling persons by the Underwriters
against certain liabilities for information furnished by the Underwriters.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
Since September 30, 1994, the Company has sold unregistered securities in
the amounts, at the time and for the aggregate amounts of consideration listed
below. With respect to sales of preferred stock, all shares and amounts and per
share prices described below have been adjusted to reflect the conversion of
such shares into Common Stock immediately prior to the closing of the Offering
and a 682.9108392-to-1 stock split effected prior to the Offering. The
securities were sold to purchasers directly by the Company, and such sales did
not involve any underwriter. The Company considers these securities to have been
II-1
<PAGE>
offered and sold in transactions not involving a public offering and therefore,
to be exempted from registration under Section 4(2) of the Securities Act of
1933, as amended.
<TABLE>
<CAPTION>
AGGREGATE
AMOUNT OF
SECURITIES AGGREGATE
PURCHASER TYPE DATE ISSUED CONSIDERATION
- -------------------------------- ---------------------------- ------------------ ---------- -------------
<S> <C> <C> <C> <C>
Zell/Chilmark Fund L.P.......... Common Stock Warrant May 1995 3,912,750 $ 5,217,000(1)
Debt Group(2)................... Common Stock Warrants May 1995 587,250 $ 783,000(3)
Zell/Chilmark Fund L.P.......... Common Stock Warrant February 1996 1,500,000 $ 2,000,000(4)
Zell/Chilmark Fund L.P.......... Common Stock Warrant September 1996 750,000 $ 1,000,000(5)
Zell/Chilmark Fund L.P.......... Common Stock Warrant October 1996 750,000 $ 1,000,000(6)
AMR Corporation................. Common Stock Warrant February 1997 390,625 (7)
James H. Goodnight, Ph.D........ Senior Convertible Preferred
Stock February 1997 2,509,697 $ 10,096,143
John P. Sall.................... Senior Convertible Preferred
Stock February 1997 1,218,995 $ 4,903,841
Zell/Chilmark Fund L.P.......... Common Stock February 1997 1,740,056 $ 7,000,000
debis AirFinance B.V............ Common Stock February 1997 260,189 (7)
Wings Aircraft Finance, Inc..... Common Stock February 1997 130,435 (7)
</TABLE>
- ------------------------
(1) Consideration represents subordinated debt financing provided by
Zell/Chilmark to the Company. For each $1,000 of financing provided, the
Company issued to Zell/Chilmark a warrant to purchase 750 shares of Class C
Common Stock of the Company. This warrant was canceled on February 11, 1997.
(2) The Debt Group includes 17 different individuals or trusts and one
partnership.
(3) Consideration represents subordinated debt financing provided by the Debt
Group to the Company in the aggregate amount of $783,000. For each $1,000 of
financing provided, the Company issued to the members of the Debt Group a
warrant to purchase of 750 shares of Class C Common Stock of the Company.
These warrants were canceled on February 11, 1997.
(4) Consideration represents subordinated debt financing provided by
Zell/Chilmark to the Company. For each $1,000 of financing provided, the
Company issued to Zell/Chilmark a warrant to purchase 750 shares of Class C
Common Stock of the Company. This warrant was canceled on February 11, 1997.
(5) See note 4 above.
(6) See note 4 above.
(7) Consideration received included the conversion of certain short term
liabilities into long term debt and the reduction of certain recurring
expenses of the Company.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits:
<TABLE>
<CAPTION>
NO. DESCRIPTION
- --------- -------------------------------------------------------------------------------------------------------
<C> <S>
1.1+ --Form of Underwriting Agreement.
3.1 --Amended and Restated Certificate of Incorporation.
3.2 --Amended and Restated By-laws.
4.1 --Form of Common Stock Certificate.
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
NO. DESCRIPTION
- --------- -------------------------------------------------------------------------------------------------------
<C> <S>
4.2 --See Exhibits 3.1 and 3.2 for provisions of the Amended and Restated Certificate of Incorporation and
Amended and Restated By-laws of Midway defining the rights of the holders of Common Stock.
5.1 --Opinion of Fulbright & Jaworski L.L.P.
10.1 --[Intentionally omitted]
10.2 --[Intentionally omitted]
10.3*+ --Aircraft Operating Lease Agreement No. AOLAF-111 dated as of November 11, 1993 between First Security
Bank of Utah, N.A. ("FSBU") and Midway as amended.
10.4*+ --Aircraft Operating Lease Agreement No. AOLAF-112 dated as of November 11, 1993 between FSBU and
Midway as amended.
10.5*+ --Aircraft Operating Lease Agreement No. AOLAF-113 dated as of November 11, 1993 between FSBU and
Midway as amended.
10.6*+ --Aircraft Operating Lease Agreement No. AOLAF-114 dated as of November 11, 1993 between FSBU and
Midway as amended.
10.7*+ --Aircraft Operating Lease Agreement No. AOLAF-115-A dated as of July 10, 1995 between Wings Aircraft
Finance, Inc. ("Wings") and Midway, as amended.
10.8*+ --Aircraft Operating Lease Agreement No. AOLAF-116-A dated as of July 10, 1995 between Wings and
Midway, as amended.
10.9*+ --Aircraft Operating Lease Agreement No. AOLAF-117-A dated as of July 10, 1995 between Wings and
Midway, as amended.
10.10*+ --Aircraft Operating Lease Agreement No. AOLAF-118-A dated as of July 10, 1995 between Wings and
Midway, as amended.
10.11*+ --Aircraft Operating Lease Agreement No. AOLAF-135 dated as of July 20, 1995 between FSBU and Midway,
as amended.
10.12*+ -- Aircraft Operating Lease Agreement No. AOLAF-524 dated as of August 1, 1995 between FSBU and Midway,
as amended.
10.13*+ --Aircraft Operating Lease Agreement No. AOLAF-525 dated as of October 15, 1995 between FSBU and
Midway, as amended.
10.14*+ --Aircraft Operating Lease Agreement No. AOLAF-136 dated as of December 15, 1995 between FSBU and
Midway, as amended.
10.15*+ --Aircraft Lease Agreement dated as of May 24, 1995 between Wilmington Trust Company and Midway.
10.16*+ --Airbus A-320-200 Purchase Agreement dated as of March 17, 1995 between AVSA. S.A.R.L. ("AVSA") and
Midway with Amendment Nos. 1 through 6 thereto.
Letter Agreement No. 2 Re: Purchase Incentives and Miscellaneous Matters, as amended
Letter Agreement No. 3 Re: Option Aircraft, as amended
Letter Agreement Re: Financial Matters with Amendment No. 4 thereto.
10.17*+ --Agreement of Sublease dated as of January 18, 1995 between American Airlines, Inc. ("AA") and Midway,
as amended.
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
NO. DESCRIPTION
- --------- -------------------------------------------------------------------------------------------------------
<C> <S>
10.18*+ --AAdvantage-Registered Trademark- Participating Carrier Agreement dated as of January 18, 1995 between
AA and Midway, as amended.
10.19*+ --Secured Promissory Note dated February 7, 1997 from Midway to AA.
10.20*+ --February 10, 1997 Letter Agreement between American Airlines, Inc. and Midway with Exhibits A and C
through I thereto.
10.21*+ --Agreement Relating to Repair and Overhaul of Rolls Royce Engines dated as of May 10, 1996 between
Rolls Royce Aero Engine Services Limited and Midway.
10.22*+ --Purchase Agreement between Bombardier Inc. and Midway dated September 17, 1997 with Letter Agreements
001 through 011.
10.23*+ --Services and Licenses Agreement between Midway and Airline Management Services, Inc. dated as of
December 7, 1995 with Annex A thereto.
10.24*+ --Letter Agreement dated as of July 1, 1996 between Fokker Services, Inc. and Midway.
10.25*+ --Aircraft Maintenance Services Agreement dated August 27, 1997 between Time Air Inc. doing business as
Canadian Regional Airlines and Midway.
10.26*+ --Warrant to Purchase Shares of Common Stock of Midway Airlines Corporation dated February 11, 1997
issued by Midway in favor of AMR Corporation.
10.27+ --Stockholders Agreement dated as of February 11, 1997.
10.28*+ --General Terms of Sale between IAE International Aero Engines AG and Midway dated May 17, 1995 with
Side Letter Number 1 and Side Letter Number 2 thereto.
10.29*+ --Promissory Note dated February 11, 1997 made by Midway to debis AirFinance B.V.
10.30*+ --Promissory Note dated February 11, 1997 made by Midway to Daimler Benz Aerospace A.G.
10.31+ --Severance Agreement and Other Matters made as of February 11, 1997 between Robert R. Ferguson III and
Midway.
10.32+ --Employment Agreement dated as of July 15, 1996 between Steven Westberg and Midway, as amended.
10.33+ --Employment Agreement dated as of July 15, 1996 between Jonathan S. Waller and Midway, as amended.
10.34+ --Employment Agreement dated as of July 15, 1996 between Joanne Smith and Midway, as amended.
10.35 [Intentionally Omitted.]
10.36+ --Option to Purchase Shares of Common Stock of Midway Airlines Corporation dated as of February 11,
1997 issued by Midway in favor of Robert R. Ferguson III.
10.37+ --Agreement and Plan of Merger dated as of January 17, 1997 by and among Midway, GoodAero, Inc., James
H. Goodnight, Ph.D, John P. Sall and the Zell/Chilmark Fund L.P., as amended.
10.38*+ --Letter Agreement dated September 12, 1997 between GE Aircraft Engines and Midway.
10.39*+ --Sublease dated June 30, 1995 between Peoples Security Life Insurance Company and Midway.
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
NO. DESCRIPTION
- --------- -------------------------------------------------------------------------------------------------------
<C> <S>
10.40*+ --Sublease Agreement dated May 1, 1995 between Page Avjet Corporation and Midway.
10.41*+ --AAirpass Agreement dated as of March 2, 1995 between American Airlines Inc. and Midway.
10.42*+ --Engine Lease Agreement dated September 11, 1997 between RRPF Engine Leasing Limited and Midway.
10.43+ --Option to Purchase Shares of Common Stock of Midway Airlines Corporation dated as of February 11,
1997 issued by Midway in favor of Steven Westberg.
10.44+ --Option to Purchase Shares of Common Stock of Midway Airlines Corporation dated as of February 11,
1997 issued by Midway in favor of Jonathan S. Waller.
10.45+ --Option to Purchase Shares of Common Stock of Midway Airlines Corporation dated as of February 11,
1997 issued by Midway in favor of Joanne Smith.
10.46 --Option to Purchase Shares of Common Stock of Midway Airlines Corporation dated as of February 11,
1997 issued by Midway in favor of Thomas Duffy, Jr.
10.47+ --Option to Purchase Shares of Common Stock of Midway Airlines Corporation dated as of February 11,
1997 issued by Midway in favor of David Vance.
10.48*+ --Agreement, executed September and November 1997, between Rolls-Royce Canada Limitee and Midway.
11.1+ --Statement of Computation of per share earnings.
16.1+ --Letter from Arthur Andersen LLP regarding change in independent public accountants.
23.1+ --Consent of Ernst & Young LLP.
23.2+ --Consent of Arthur Andersen LLP.
23.3 --Consent of Fulbright & Jaworski L.L.P. (included in Exhibit 5.1).
24.1+ --Powers of Attorney from certain members of the Board of Directors of the Company.
</TABLE>
- ------------------------
* Portions have been omitted pursuant to a request for confidential treatment.
+ Previously filed.
As permitted by Item 601(b)(4) of Regulation S-K, the Company has not filed
with this Registration Statement certain instruments defining the rights of
holders of long-term debt of the Company, if any, because the total amount of
securities authorized under any of such instruments does not exceed 10% of the
total assets of the Company and its subsidiaries on a consolidated basis. The
Company agrees to furnish a copy of any such agreements to the Securities and
Exchange Commission upon request.
(b) Financial Statement Schedules:
[Not applicable]
II-5
<PAGE>
ITEM 17. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company in
the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned Company hereby undertakes to provide to the Underwriters at
the closing specified in the Underwriting Agreement certificates in such
denominations and registered in such names as required by the Underwriters to
permit prompt delivery to each purchaser.
The undersigned Company hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as a part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Company pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, Midway Airlines
Corporation has duly caused this Amendment No. 4 to the Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Durham, State of North Carolina, on December 2, 1997.
<TABLE>
<S> <C> <C>
MIDWAY AIRLINES CORPORATION
By: /s/ JONATHAN S. WALLER
-----------------------------------------
Jonathan S. Waller
SENIOR VICE PRESIDENT
</TABLE>
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
*
- ------------------------------
Robert R. Ferguson III Chairman December 2, 1997
of the
Board,
President
and
Chief
Executive
Officer
(Principal
Executive
Officer)
*
- ------------------------------
Steven Westberg Senior December 2, 1997
Vice
President
and
Chief
Financial
Officer
(Principal
Financial
and
Accounting
Officer)
*
- ------------------------------
W. Greyson Quarles, Jr. Director December 2, 1997
*
- ------------------------------
Howard Wolf Director December 2, 1997
*
- ------------------------------
Gregory J. Robitaille Director December 2, 1997
*/s/ JONATHAN S. WALLER
- ------------------------------
Jonathan S. Waller
ATTORNEY-IN-FACT
II-7
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
NO. DESCRIPTION
- --------- -------------------------------------------------------------------------------------------------------
<C> <S>
1.1+ --Form of Underwriting Agreement.
3.1 --Amended and Restated Certificate of Incorporation.
3.2 --Amended and Restated By-laws.
4.1 --Form of Common Stock Certificate.
4.2 --See Exhibits 3.1 and 3.2 for provisions of the Restated Certificate of Incorporation and Amended and
Restated By-laws of Midway defining the rights of the holders of Common Stock.
5.1 --Opinion of Fulbright & Jaworski L.L.P.
10.1 --[intentionally omitted].
10.2 --[intentionally omitted].
10.3*+ --Aircraft Operating Lease Agreement No. AOLAF-111 dated as of November 11, 1993 between First Security
Bank of Utah, N.A. ("FSBU") and Midway as amended.
10.4*+ --Aircraft Operating Lease Agreement No. AOLAF-112 dated as of November 11, 1993 between FSBU and
Midway as amended.
10.5*+ --Aircraft Operating Lease Agreement No. AOLAF-113 dated as of November 11, 1993 between FSBU and
Midway as amended.
10.6*+ --Aircraft Operating Lease Agreement No. AOLAF-114 dated as of November 11, 1993 between FSBU and
Midway as amended.
10.7*+ --Aircraft Operating Lease Agreement No. AOLAF-115-A dated as of July 10, 1995 between Wings Aircraft
Finance, Inc. ("Wings") and Midway, as amended.
10.8*+ --Aircraft Operating Lease Agreement No. AOLAF-116-A dated as of July 10, 1995 between Wings and
Midway, as amended.
10.9*+ --Aircraft Operating Lease Agreement No. AOLAF-117-A dated as of July 10, 1995 between Wings and
Midway, as amended.
10.10*+ --Aircraft Operating Lease Agreement No. AOLAF-118-A dated as of July 10, 1995 between Wings and
Midway, as amended.
10.11*+ --Aircraft Operating Lease Agreement No. AOLAF-135 dated as of July 20, 1995 between FSBU and Midway,
as amended.
10.12*+ -- Aircraft Operating Lease Agreement No. AOLAF-524 dated as of August 1, 1995 between FSBU and Midway,
as amended.
10.13*+ --Aircraft Operating Lease Agreement No. AOLAF-525 dated as of October 15, 1995 between FSBU and
Midway, as amended.
10.14*+ --Aircraft Operating Lease Agreement No. AOLAF-136 dated as of December 15, 1995 between FSBU and
Midway, as amended.
10.15*+ --Aircraft Lease Agreement dated as of May 24, 1995 between Wilmington Trust Company and Midway.
10.16*+ --Airbus A-320-200 Purchase Agreement dated as of March 17, 1995 between AVSA. S.A.R.L. ("AVSA") and
Midway with Amendment Nos. 1 through 6 thereto.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
NO. DESCRIPTION
- --------- -------------------------------------------------------------------------------------------------------
<C> <S>
Letter Agreement No. 2 Re: Purchase Incentives and Miscellaneous Matters, as amended
Letter Agreement No. 3 Re: Option Aircraft, as amended
Letter Agreement Re: Financial Matters with Amendment No. 4 thereto.
10.17*+ --Agreement of Sublease dated as of January 18, 1995 between American Airlines, Inc. ("AA") and Midway,
as amended.
10.18*+ --AAdvantage-Registered Trademark- Participating Carrier Agreement dated as of January 18, 1995 between
AA and Midway, as amended.
10.19*+ --Secured Promissory Note dated February 7, 1997 from Midway to AA.
10.20*+ --February 10, 1997 Letter Agreement between American Airlines, Inc. and Midway with Exhibits A and C
through I thereto.
10.21*+ --Agreement Relating to Repair and Overhaul of Rolls Royce Engines dated as of May 10, 1996 between
Rolls Royce Aero Engine Services Limited and Midway.
10.22*+ --Purchase Agreement between Bombardier Inc. and Midway dated September 17, 1997 with Letter Agreements
001 through 011.
10.23*+ --Services and Licenses Agreement between Midway and Airline Management Services, Inc. dated as of
December 7, 1995 with Annex A thereto.
10.24*+ --Letter Agreement dated as of July 1, 1996 between Fokker Services, Inc. and Midway.
10.25*+ --Aircraft Maintenance Services Agreement dated August 27, 1997 between Time Air Inc. doing business as
Canadian Regional Airlines and Midway.
10.26*+ --Warrant to Purchase Shares of Common Stock of Midway Airlines Corporation dated February 11, 1997
issued by Midway in favor of AMR Corporation.
10.27+ --Stockholders Agreement dated as of February 11, 1997.
10.28*+ --General Terms of Sale between IAE International Aero Engines AG and Midway dated May 17, 1995 with
Side Letter Number 1 and Side Letter Number 2 thereto.
10.29*+ --Promissory Note dated February 11, 1997 made by Midway to debis AirFinance B.V.
10.30*+ --Promissory Note dated February 11, 1997 made by Midway to Daimler Benz Aerospace A.G.
10.31+ --Severance Agreement and Other Matters made as of February 11, 1997 between Robert R. Ferguson III and
Midway.
10.32+ --Employment Agreement dated as of July 15, 1996 between Steven Westberg and Midway, as amended.
10.33+ --Employment Agreement dated as of July 15, 1996 between Jonathan S. Waller and Midway, as amended.
10.34+ --Employment Agreement dated as of July 15, 1996 between Joanne Smith and Midway, as amended.
10.35 [Intentionally Omitted.]
10.36+ --Option to Purchase Shares of Common Stock of Midway Airlines Corporation dated as of February 11,
1997 issued by Midway in favor of Robert R. Ferguson III.
10.37+ --Agreement and Plan of Merger dated as of January 17, 1997 by and among Midway, GoodAero, Inc., James
H. Goodnight, Ph.D, John P. Sall and the Zell/Chilmark Fund L.P., as amended.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
NO. DESCRIPTION
- --------- -------------------------------------------------------------------------------------------------------
<C> <S>
10.38*+ --Letter Agreement dated September 12, 1997 between GE Aircraft Engines and Midway.
10.39*+ --Sublease dated June 30, 1995 between Peoples Security Life Insurance Company and Midway.
10.40*+ --Sublease Agreement dated May 1, 1995 between Page Avjet Corporation and Midway.
10.41*+ --AAirpass Agreement dated as of March 2, 1995 between American Airlines Inc. and Midway.
10.42*+ --Engine Lease Agreement dated September 11, 1997 between RRPF Engine Leasing Limited and Midway.
10.43+ --Option to Purchase Shares of Common Stock of Midway Airlines Corporation dated as of February 11,
1997 issued by Midway in favor of Steven Westberg.
10.44+ --Option to Purchase Shares of Common Stock of Midway Airlines Corporation dated as of February 11,
1997 issued by Midway in favor of Jonathan S. Waller.
10.45+ --Option to Purchase Shares of Common Stock of Midway Airlines Corporation dated as of February 11,
1997 issued by Midway in favor of Joanne Smith.
10.46 --Option to Purchase Shares of Common Stock of Midway Airlines Corporation dated as of February 11,
1997 issued by Midway in favor of Thomas Duffy, Jr.
10.47+ --Option to Purchase Shares of Common Stock of Midway Airlines Corporation dated as of February 11,
1997 issued by Midway in favor of David Vance.
10.48*+ --Agreement, executed September and November 1997, between Rolls-Royce Canada Limitee and Midway.
11.1+ --Statement of Computation of per share earnings.
16.1+ --Letter from Arthur Andersen LLP regarding change in independent public accountants.
23.1+ --Consent of Ernst & Young LLP.
23.2+ --Consent of Arthur Andersen LLP.
23.3 --Consent of Fulbright & Jaworski L.L.P. (included in Exhibit 5.1).
24.1+ --Powers of Attorney from certain members of the Board of Directors of the Company.
</TABLE>
- ------------------------
* Portions have been omitted pursuant to a request for confidential treatment.
+ Previously filed.
As permitted by Item 601(b)(4) of Regulation S-K, the Company has not filed
with this Registration Statement certain instruments defining the rights of
holders of long-term debt of the Company, if any, because the total amount of
securities authorized under any of such instruments does not exceed 10% of the
total assets of the Company and its subsidiaries on a consolidated basis. The
Company agrees to furnish a copy of any such agreements to the Securities and
Exchange Commission upon request.
(b) Financial Statement Schedules:
[Not applicable]
<PAGE>
Exhibit 3.1
MIDWAY AIRLINES CORPORATION
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
The original Certificate of Incorporation of Midway Airlines Corporation
(the "Corporation") was filed under the name "Jet Express, Inc." on June 21,
1983, and was restated on February 11, 1997 pursuant to a Certificate of Merger
whereby GoodAero, Inc. was merged with and into the Corporation. On
November 11, 1997, the Board of Directors of the Corporation adopted resolutions
declaring it advisable to further amend and restate the provisions of the most
recent Restated Certificate of Incorporation of the Corporation and to call a
special meeting of the stockholders entitled to vote in respect thereof for the
consideration of such amendment and restatement. On November 12, 1997, pursuant
to Section 228 of the General Corporation Law of the State of Delaware and
pursuant to Section 1.9 of the Corporation's By-Laws, in lieu of a special
meeting of stockholders, written consents signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take action to amend and restate the provisions of the most
recent Restated Certificate of Incorporation of the Corporation were executed
and delivered by such holders to the Secretary of the Corporation authorizing
the filing of this Amended and Restated Certificate of Incorporation, in
accordance with Sections 242 and 245 of the General Corporation Law of the State
of Delaware. This Amended and Restated Certificate of Incorporation shall
become effective on December 10, 1997. This Amended and Restated Certificate of
Incorporation amends and supersedes the most recent Restated Certificate of
Incorporation of the Corporation, as presently in effect prior to December 10,
1997, in its entirety as follows:
ARTICLE 1
The name of the Corporation is Midway Airlines Corporation.
ARTICLE 2
The address of the registered office of the Corporation in the State of
Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle.
The name of its registered agent at that address is The Corporation Trust
Company.
ARTICLE 3
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of the
State of Delaware.
ARTICLE 4
The total number of shares of stock of all classes which the Corporation
has authority to issue is 37,000,000 shares, of which 25,000,000 shares shall be
common
<PAGE>
stock, with a par value of $.01 per share ("Common Stock"), and 12,000,000
shares shall be preferred stock, with a par value of $.01 per share ("Preferred
Stock").
The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions of the shares of each class of stock
are as follows:
PREFERRED STOCK
Preferred Stock may be issued from time to time by the Board of Directors
as shares of one or more series. Subject to the provisions hereof and the
limitations prescribed by law, the Board of Directors is hereby vested with the
authority and is expressly authorized, prior to issuance, by adopting
resolutions providing for the issuance of, or providing for a change in the
number of, shares of any particular series and, if and to the extent from time
to time required by law, by filing a certificate pursuant to the General
Corporation Law of the State of Delaware (or other law hereafter in effect
relating to the same or substantially similar subject matter), to establish or
change the number of shares to be included in each such series and to fix the
designation and powers, preferences and rights and the qualifications and
limitations or restrictions thereof relating to the shares of each such series,
all to the maximum extent permitted by the General Corporation Law of the State
of Delaware as in effect on the date hereof or as hereafter amended. The vested
authority of the Board of Directors with respect to each series shall include,
but not be limited to, the determination of the following:
(a) the distinctive serial designation of such series and the
number of shares constituting such series (provided that the aggregate
number of shares constituting all series of Preferred Stock shall not
exceed the total number of shares of Preferred Stock which the
Corporation is authorized to issue);
(b) The annual dividend rate, if any, on shares of such series
and the preferences, if any, over any other series (or of any other
series over such series) with respect to dividends, and whether
dividends shall be cumulative and, if so, from which date or dates;
(c) whether the shares of such series shall be redeemable and,
if so, the terms and conditions of such redemption, including the date
or dates upon and after which such shares shall be redeemable, and the
amount per share payable in case of redemption, which amount may vary
under different conditions and at different redemption dates;
(d) the obligation, if any, of the Corporation to purchase or
redeem shares of such series pursuant to a sinking fund or purchase
fund and, if so, the terms of such obligation;
(e) whether shares of such series shall be convertible into, or
exchangeable for, shares of stock of any other class or classes, any
stock of any series of the same class or any other class or classes or
any
2
<PAGE>
evidences of indebtedness and, if so, the terms and conditions of such
conversion or exchange, including the price or prices or the rate or rates
of conversion or exchange and the terms of adjustment, if any;
(f) whether the shares of such series shall have voting rights
in addition to the voting rights provided by law, and, if so, the
terms of such voting rights, including, without limitation, whether
such shares shall have the right to vote with the Common Stock on
issues on an equal, greater or lesser basis;
(g) the rights of the shares of such series in the event of a
voluntary or involuntary liquidation, dissolution, winding up or
distribution of assets of the Corporation;
(h) whether the shares of such series shall be entitled to the
benefit of conditions and restrictions upon (i) the creation of
indebtedness of the Corporation or any subsidiary, (ii) the issuance
of any additional stock (including additional shares of such series or
of any other series) or (iii) the payment of dividends or the making
of other distributions on the purchase, redemption or other
acquisition by the Corporation or any subsidiary of any outstanding
stock of the Corporation; and
(i) any other relative, rights, powers, preferences,
qualifications, limitations or restrictions thereof, including, but
not limited to, any that may be determined in connection with the
adoption of any stockholder rights plan after the date hereof,
relating to any such series.
Except where otherwise set forth in the resolution or resolutions adopted
by the Board of Directors providing for the issuance of any series of Preferred
Stock, the number of shares comprising such series may be increased or decreased
(but not below the number of shares then outstanding) from time to time by like
action of the Board of Directors. The shares of Preferred Stock of any one
series shall be identical with the other shares in such series in all respects
except as to the dates from and after which dividends thereon shall cumulate, if
cumulative.
Shares of any series of Preferred Stock that have been redeemed (whether
through the operation of a sinking fund or otherwise) or purchased by the
Corporation, or which, if convertible or exchangeable, have been converted into,
or exchanged for, shares of stock of any other class or classes or any evidences
of indebtedness shall have the status of authorized and unissued shares of
Preferred Stock and may be reissued as a part of the series of which they were
originally a part or may be reclassified and reissued as part of a new series of
Preferred Stock to be created by resolution or resolutions of the Board of
Directors or as part of any other series of Preferred Stock, all subject to the
conditions or restrictions on issuance set forth in the resolution or
resolutions adopted by the Board of Directors providing for the issuance of any
series of Preferred Stock and to any filing required by law.
3
<PAGE>
The number of authorized shares of Preferred Stock may be increased or
decreased by the affirmative vote of the holders of a majority of the stock of
the Corporation entitled to vote without the separate vote of holders of
Preferred Stock as a class.
COMMON STOCK
Subject to all of the rights of the Preferred Stock, and except as may be
expressly provided with respect to the Preferred Stock herein, by law or by the
Board of Directors pursuant to this Article 4:
(a) dividends may be declared and paid or set apart for payment
upon Common Stock out of any assets or funds of the Corporation
legally available for the payment of dividends and may be payable in
cash, stock or otherwise;
(b) the holders of Common Stock shall have the exclusive right
to vote for the election of directors (other than in the case of newly
created directorships and vacancies, which shall be filled solely by
the remaining directors as set forth in Article 6 hereof) and on all
other matters requiring stockholder action, each share being entitled
to one vote; and
(c) upon the voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, the net assets of the Corporation
shall be distributed pro rata to the holders of Common Stock in
accordance with their respective rights and interests.
DENIAL OF PREEMPTIVE RIGHTS AND CUMULATIVE VOTING
No holder of any stock of the Corporation shall be entitled as such, as a
matter of right, to subscribe for or purchase any part of any new or additional
issue of stock of any class whatsoever of the Corporation, or of securities
convertible into stock of any class whatsoever, whether now or hereafter
authorized, or whether issued for cash or other consideration or by way of
dividend.
No holder of any stock of the Corporation shall have the right of
cumulative voting at any election of directors or upon any other matter.
ARTICLE 5
The Corporation is to have perpetual existence.
ARTICLE 6
All power of the Corporation shall be vested in and exercised by or under
the direction of the Board of Directors except as otherwise provided herein or
required by law.
4
<PAGE>
For the management of the business and for the conduct of the affairs of
the Corporation, and in further creation, definition, limitation and regulation
of the power of the Corporation and of its directors and stockholders, it is
further provided:
Section 1. ELECTIONS OF DIRECTORS. Elections of Directors need not be by
written ballot unless the Bylaws of the Corporation shall so provide.
Section 2. NUMBER, ELECTION AND TERMS OF DIRECTORS. Except as otherwise
fixed pursuant to the provisions of Article 4 hereof relating to the rights of
the holders of any class or series of stock having a preference over the Common
Stock as to dividends or upon liquidation to elect additional directors under
specified circumstances, the number of directors of the Corporation shall be
fixed from time to time by or pursuant to the Bylaws; provided that such number
shall not be less than three nor more than twelve. The directors, other than
those who may be elected by the holders of any class or series of stock having
preference over the Common Stock as to dividends or upon liquidation, shall be
classified, with respect to the time for which they severally hold office, into
three classes, each as nearly equal in number as possible, as shall be provided
in the manner specified in the Bylaws, one class (Class I) to hold office
initially for a term expiring at the annual meeting of stockholders to be held
in 1998, another class (Class II) to hold office initially for a term expiring
at the annual meeting of stockholders to be held in 1999, and another class
(Class III) to hold office initially for a term expiring at the annual meeting
of stockholders to be held in 2000, with the members of each class to hold
office until their successors are elected and qualified or until their earlier
resignation or removal. At each annual meeting of the stockholders of the
Corporation, the successors to the class of directors whose term expires at that
meeting shall be elected to hold office for a term expiring at the annual
meeting of stockholders to be held in the third year following the year of their
election.
Section 3. STOCKHOLDER NOMINATION OF DIRECTOR CANDIDATES. Advance notice
of nominations for the election of Directors, other than by the Board of
Directors or a Committee thereof, shall be given in the manner provided in the
Bylaws.
Section 4. NEWLY CREATED DIRECTORSHIPS AND VACANCIES. Except as otherwise
fixed pursuant to the provisions of Article 4 hereof relating to the rights of
the holders of any class or series of stock having a preference over Common
Stock as to dividends or upon liquidation to elect directors under specified
circumstances, newly created directorships resulting from any increase in the
number of directors and any vacancies on the Board of Directors resulting from
death, resignation, disqualification, removal or other cause shall be filled
solely by the affirmative vote of at least two-thirds (rounded up to the nearest
whole number) of the remaining directors then in office, even though less than a
quorum of the Board of Directors. Any director elected in accordance with the
preceding sentence shall hold office for the remainder of the full term of the
class of directors in which the new directorship was created or the vacancy
occurred and until such director's successor shall have been elected and
qualified or until their earlier resignation or removal. No decrease in the
number of directors constituting the Board of Directors shall shorten the term
of any incumbent director.
5
<PAGE>
Section 5. REMOVAL OF DIRECTORS. Subject to the rights of any class or
series of stock having preference over Common Stock as to dividends or upon
liquidation to elect directors under specified circumstances, any director may
be removed from office only for cause. Except as may otherwise be provided by
law, cause for removal shall be construed to exist only if during a director's
term as a director of the Corporation: (a) the director whose removal is
proposed has been convicted of a felony by a court of competent jurisdiction and
such conviction is no longer subject to direct appeal; (b) such director has
been adjudicated by a court of competent jurisdiction to be liable for gross
negligence, recklessness or misconduct in the performance of his or her duty to
the Corporation in a manner of substantial importance to the Corporation and
such adjudication is no longer subject to direct appeal; or (c) such director
has been adjudicated by a court of competent jurisdiction to be mentally
incompetent, which mental incompetency directly affects his or her ability as a
director of the Corporation, and such adjudication is no longer subject to
direct appeal.
Section 6. STOCKHOLDER ACTION. Any action required or permitted to be
taken by the stockholders of the Corporation must be effected at a duly called
annual or special meeting of such holders and may not be effected by any consent
in writing by such holders. Except as otherwise required by law and subject to
the rights of holders of any class or series of stock having a preference over
Common Stock as to dividends or upon liquidation, special meetings of
stockholders of the Corporation may be called only by the Chairman of the Board,
the Chief Executive Officer or the Board of Directors pursuant to a resolution
approved by a majority of the entire Board of Directors.
Section 7. BYLAW AMENDMENTS. The Board of Directors shall have the power
to make, alter, amend and repeal the Bylaws (except so far as the Bylaws adopted
by the stockholders shall otherwise provide). Any Bylaws made by the Board of
Directors under the powers conferred hereby may be altered, amended or repealed
by the directors or by the stockholders; provided, however, that the Bylaws
shall not be altered, amended or repealed and no provision inconsistent
therewith shall be adopted (i) by stockholder action without the affirmative
vote of the holders of at least 66 2/3% of the voting power of all the shares of
the Corporation entitled to vote generally in the election of directors, voting
together as a single class or (ii) by director action without the affirmative
vote of at least two-thirds (rounded up to the nearest whole number) of the
directors then in office.
Section 8. LIABILITY OF DIRECTORS.
A. No director of the Corporation shall be liable to the Corporation
or any of its stockholders for monetary damages for breach of fiduciary
duty as a director; provided that this Article 6 shall not eliminate or
limit the liability of a director of the Corporation: (i) for any breach of
the director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
General Corporation Law of the State of Delaware, or (iv) for any
transaction from which the director derived an improper personal benefit.
6
<PAGE>
B. If the General Corporation Law of the State of Delaware hereafter
is amended to authorize the further elimination or limitation of the
liability of directors of the Corporation, then the liability of a director
of the Corporation shall be limited to the fullest extent permitted by the
General Corporation Law of the State of Delaware, as so amended, and such
limitation of liability shall be in addition to, and not in lieu of, the
limitation on the liability of a director of the Corporation provided by
the provisions of this Section 8 of this Article 6.
C. Any repeal or modification of this Section 8 of this Article 6
shall be prospective only and shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such
repeal or modification.
D. The Corporation shall be obligated at all times to maintain the
effectiveness of Bylaw provisions providing for the mandatory
indemnification of the directors of the Corporation to the maximum extent
permitted by the General Corporation Law of the State of Delaware.
Section 9. AMENDMENT, REPEAL, ETC. Notwithstanding anything contained in
this Amended and Restated Certificate of Incorporation to the contrary, the
affirmative vote of the holders of at least 66 2/3% of the voting power of all
shares of the Corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required to alter, amend,
adopt any provision inconsistent with, or repeal, this Article 6 or any
provision hereof.
ARTICLE 7
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Amended and Restated Certificate of Incorporation,
in the manner now or hereafter prescribed by statute and this Amended and
Restated Certificate of Incorporation, and all rights conferred upon
stockholders herein are granted subject to this reservation.
IN WITNESS WHEREOF, the Corporation has caused this Amended and of Restated
Certificate of Incorporation to be signed by its President and attested to by
its Secretary this ____ day of November, 1997.
MIDWAY AIRLINES CORPORATION
By:________________________________
Robert R. Ferguson III,
Chairman, President and
Chief Executive Officer
7
<PAGE>
ATTEST:
______________________________________
Jonathan S. Waller
Secretary
8
<PAGE>
Exhibit 3.2
AMENDED AND RESTATED BYLAWS
OF
MIDWAY AIRLINES CORPORATION
(a Delaware Corporation)
RESTATED AS OF DECEMBER 10, 1997
OFFICES
1. The Corporation shall at all times maintain a registered office in the
State of Delaware.
2. The Corporation may also have offices at such other places within or
outside of the State of Delaware as the Board of Directors shall from time to
time appoint or the business of the Corporation require.
CAPITAL STOCK
3. The Board of Directors may authorize the issuance of the capital stock
of the Corporation at such times, for such consideration, and on such terms and
conditions as the Board may deem advisable, subject to any restrictions and
provisions of law, the Certificate of Incorporation, as amended and restated
from time to time (the "Certificate of Incorporation"), of the Corporation or
any other provisions of these Bylaws.
4. The shares of the Corporation shall be represented by certificates,
provided that the Board of Directors may provide by resolution or resolutions
that some or all of any or all classes or series of its stock shall be
uncertificated shares. Any such resolution shall not apply to shares
represented by a certificate until such certificate is surrendered to the
Corporation. Notwithstanding the adoption of such a resolution by the Board of
Directors, every holder of stock represented by certificates and upon request
every holder of uncertificated shares shall be entitled to have a certificate
signed by, or in the name of the Corporation by, the chairman or vice-chairman
of the board of directors, or the president or vice-president, and by the
treasurer or an assistant treasurer, or the secretary or an assistant secretary
of the Corporation representing the number of shares registered in certificate
form. Any or all of the signatures on the certificate may be a facsimile. In
case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue. The certificates shall
otherwise be in such form as may be determined by the Board of Directors, shall
be issued in numerical order, shall be entered in the books of the Corporation
as they are issued and shall exhibit the holder's name and number of shares.
<PAGE>
5. The shares of the capital stock of the Corporation are transferable
only on the books of the Corporation upon surrender, in the case of certificated
shares, of the certificates therefor properly endorsed for transfer, or
otherwise properly assigned, and upon the presentation of such evidences of
ownership of the shares and validity of the assignment as the Corporation may
require.
6. The Corporation shall be entitled to treat the person in whose name
any share of stock is registered as the owner thereof for purposes of dividends
and other distributions in the course of business or in the course of
recapitalization, consolidation, merger, reorganization, liquidation, or
otherwise, and for the purpose of votes, approvals and consents by stockholders,
and for the purpose of notices to stockholders, and for all other purposes
whatsoever, and shall not be bound to recognize any equitable or other claim to
or interest in such share on the part of any other person, whether or not the
Corporation shall have notice thereof, save as expressly required by the laws of
the State of Delaware.
7. The Board of Directors may appoint one or more transfer agents and
registrars, and may require certificates for shares to bear the signature of
such transfer agent(s) and registrar(s).
8. Upon the presentation to the Corporation of a proper affidavit
attesting the loss, destruction or mutilation of any certificate for shares of
stock of the Corporation, the Board of Directors may direct the issuance of a
new certificate or uncertificated shares in lieu of and to replace the
certificate so alleged to be lost, destroyed or mutilated. The Board of
Directors may require as a condition precedent to the issuance of a new
certificate or uncertificated shares any or all of the following:
(a) additional evidence of the loss, destruction or mutilation claimed;
(b) advertisement of the loss in such manner as the Board of Directors may
direct or approve; (c) a bond or agreement of indemnity, in such form and amount
and with such surety (or without surety) as the Board of Directors may direct or
approve; and (d) the order or approval of a court.
STOCKHOLDERS AND MEETINGS OF STOCKHOLDERS
9. All meetings of stockholders shall be held at such place within or
outside of the State of Delaware as shall be fixed by the Board of Directors and
stated in the notice of meeting.
10. The Annual Meeting of Stockholders of the Corporation shall be held on
such date and at such time as is fixed by the Board of Directors and stated in
the notice of meeting. Directors shall be elected in accordance with the
provisions of the Certificate of Incorporation of the Corporation and these
Bylaws and such other business shall be transacted as may properly come before
the meeting.
11. The Annual Meeting of Stockholders may be adjourned by the presiding
officer of the meeting for any reason (including, if the presiding officer
determines that it would be in the best interests of the Corporation to extend
the period of time for the solicitation of proxies) from time to time and place
to place until the presiding officer
2
<PAGE>
shall determine that the business to be conducted at the meeting is completed,
which determination shall be conclusive.
12. At an Annual Meeting of the Stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be
properly brought before an Annual Meeting, business must be (a) specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the Board of Directors, (b) otherwise properly brought before the meeting by or
at the direction of the Board of Directors or (c) otherwise properly brought
before the meeting by a stockholder of the Corporation. For business to be
properly brought before an annual meeting by a stockholder, the stockholder must
have given timely notice thereof in writing to the Secretary of the Corporation.
To be timely, a stockholder's notice must be delivered to or mailed and received
at the principal executive offices of the Corporation, not less than 60 days nor
more than 180 days prior to the anniversary date of the immediately preceding
annual meeting; provided, however, that in the event that the date of the annual
meeting is more than 60 days later than the anniversary date of the immediately
preceding annual meeting, notice by the stockholder to be timely must be
received not later than the close of business on the tenth day following the
earlier of the date on which a written statement setting forth the date of the
annual meeting was mailed to stockholders or the date on which it is first
disclosed to the public. A stockholder's notice to the Secretary shall set
forth as to each matter the stockholder proposes to bring before the annual
meeting (a) a brief description of the business desired to be brought before the
annual meeting, (b) the name and address, as they appear on the Corporation's
books, of the stockholder proposing such proposal, (c) the class and number of
shares of the Corporation that are beneficially owned by the stockholder and (d)
any material interest of the stockholder in such business. In addition, if the
stockholder's ownership of shares of the Corporation, as set forth in the
notice, is solely beneficial, documentary evidence of such ownership must
accompany the notice. Notwithstanding anything in these Bylaws to the contrary,
no business shall be conducted at an annual meeting except in accordance with
the procedures set forth in this Section 12. The presiding officer of an annual
meeting shall, if the facts warrant, determine and declare to the meeting that
any business that was not properly brought before the meeting is out of order
and shall not be transacted at the meeting.
13. A special meeting of stockholders may only be called by the Chairman
of the Board, the Chief Executive Officer or the Board of Directors pursuant to
a resolution adopted by two-thirds of the directors then in office. The notice
of every special meeting of stockholders shall state the purpose for which it is
called. At any special meeting of stockholders, only such business shall be
conducted as shall be provided for in the resolution or resolutions calling the
special meeting or, where no such resolution or resolutions have been adopted,
only such business shall be conducted as shall be provided in the notice to
stockholders of the special meeting. Any special meeting of stockholders may be
adjourned by the presiding officer of the meeting for any reason (including, if
the presiding officer determines that it would be in the best interests of the
Corporation to extend the period of time for the solicitation of proxies) from
time to time and from place to place until the presiding officer shall determine
that the business to be conducted at the meeting is completed, which
determination shall be conclusive.
3
<PAGE>
14. Written notice of each meeting of stockholders shall be mailed to each
stockholder of record at his last address as it appears on the books of the
Corporation at least ten days prior to the date of the meeting.
15. The Board of Directors shall have the power to close the stock
transfer books of the Corporation for a period not more than sixty nor less than
ten days preceding the date of any meeting of stockholders, or the date for
payment of any dividend, or the date for the allotment of rights, or the date
when any reclassification or change or conversion or exchange of capital stock
shall go into effect; provided, however, that in lieu of closing the stock
transfer books as aforesaid, the Board of Directors may fix in advance a date
not more than sixty nor less than ten days preceding the date of any meeting of
stockholders, or the date for any payment of dividends, or the date for
allotment of rights, or the date when any reclassification or change or
conversion or exchange of capital stock shall go into effect, as a record date
for the determination of the stockholders entitled to vote at any such meeting
or entitled to receive payment of any such dividend or to any such allotment of
rights, or to exercise the rights in respect of any such reclassification,
change, conversion or exchange of capital stock, and in such cases only such
stockholders as shall be stockholders of record on the date so fixed shall be
entitled to vote at such meeting, or to receive payment of such dividend, or to
receive such allotment of rights, or to exercise such rights or to participate
in the effect of any such transaction, as the case may be, notwithstanding any
transfer of any stock on the books of the Corporation after any such record date
fixed as aforesaid. This Bylaw shall in no way affect the rights of a
stockholder and his transferee or transferor as between themselves.
16. The holders of a majority of the outstanding shares of stock of the
Corporation having voting power with respect to a subject matter (excluding
shares held by the Corporation for its own account) present or represented by
proxy shall constitute a quorum at the meeting of stockholders for the
transaction of business with respect to such subject matter; provided, however,
that if the subject matter is one as to which a higher vote is required (as
contemplated by Section 17 hereof), then the holders of that number of shares
equal to at least that higher number of outstanding shares of stock of the
Corporation having voting power with respect to such subject matter (excluding
shares held by the Corporation for its own account) present or represented by
proxy shall constitute a quorum at the meeting of stockholders solely for the
transaction of business with respect to such subject matter. In the absence of
a quorum with respect to a particular subject matter, the presiding officer of
the meeting shall have power to adjourn the meeting from time to time, without
notice other than an announcement at the meeting, until a quorum is present with
respect to that subject matter. If the adjournment is for more than 30 days, or
if after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting. At such adjourned meeting, any business may be
transacted that might have been transacted at the meeting as originally
notified.
17. When a quorum is present or represented at any meeting of
stockholders, the affirmative vote of the holders of a majority of the shares
present in person or represented by proxy at the meeting and entitled to vote on
the subject matter shall be
4
<PAGE>
the act of the stockholders in all matters, unless the matter is one upon which,
by express provision of the corporation laws of the State of Delaware, of the
Certificate of Incorporation or of these Bylaws, a different vote is required,
in which case such express provision shall govern and control the decision of
that matter. Directors shall be elected by a plurality of the votes of the
shares present in person or represented by proxy and entitled to vote on the
election of directors.
18. Every stockholder having the right to vote shall be entitled to vote
in person, or by proxy appointed by an instrument in writing subscribed by such
stockholder (which for purposes of this paragraph may include a signature and
form of proxy pursuant to a facsimile or telegraphic form of proxy or any other
instruments acceptable to the Judge of Election), bearing a date not more than
three years prior to voting, unless such instrument provides for a longer
period, and filed with the Secretary of the Corporation before, or at the time
of, the meeting. If such instrument shall designate two or more persons to act
as proxies, unless such instrument shall provide to the contrary, a majority of
such persons present at any meeting at which their powers thereunder are to be
exercised shall have and may exercise all the powers of voting thereby
conferred, or if only one be present, then such powers may be exercised by that
one; or, if an even number attend and a majority do not agree on any particular
issue, each proxy so attending shall be entitled to exercise such powers in
respect of the same portion of the shares as he is of the proxies representing
such shares.
19. Unless otherwise provided by the Certificate of Incorporation or by
the corporation laws of the State of Delaware, each stockholder of the
Corporation shall, at every meeting of stockholders, be entitled to one vote in
person or by proxy for each share of capital stock of the Corporation registered
in his name.
20. Any other corporation owning voting shares in this Corporation may
vote the same by its President or by proxy appointed by him, unless some other
person shall be appointed to vote such shares by resolution of the Board of
Directors of such stockholder corporation. A partnership holding shares of this
Corporation may vote such shares by any general partner or by proxy appointed by
any general partner.
21. Shares standing in the name of a deceased person may be voted by the
executor or administrator of such deceased person, either in person or by proxy.
Shares standing in the name of a guardian, conservator or trustee may be voted
by such fiduciary, either in person or by proxy, but no such fiduciary shall be
entitled to vote shares held in such fiduciary capacity without a transfer of
such shares into the name of such fiduciary. Shares standing in the name of a
receiver may be voted by such receiver. A stockholder whose shares are pledged
shall be entitled to vote such shares, unless in the transfer by the pledgor on
the books of the Corporation, he has expressly empowered the pledgee to vote
thereon, in which case only the pledgee, or his proxy, may represent the stock
and vote thereon.
22. The order of business and all other matters of procedure at every
meeting of the stockholders may be determined by the presiding officer of the
meeting, who shall be the Chairman of the Board, or in his absence the Chief
Executive Officer, or in the absence of both of them such other officer of the
Corporation as designated by
5
<PAGE>
the Board. The presiding officer of the meeting shall have all the powers and
authority vested in a presiding officer by law or practice without restriction,
including, without limitation, the authority, in order to conduct an orderly
meeting, to impose reasonable limits on the amount of time at the meeting taken
up in remarks by any one stockholder and to declare any business not properly
brought before the meeting to be out of order.
23. The Board shall appoint one or more Judges of Election to serve at
every meeting of the stockholders.
DIRECTORS AND MEETINGS OF DIRECTORS
24. The business of the Corporation shall be managed by a Board of
Directors (herein the "Board of Directors" or the "Board") who shall exercise
all the powers of the Corporation not reserved to or conferred on the
stockholders by statute, the Certificate of Incorporation or the Bylaws of the
Corporation.
25. Except as otherwise fixed pursuant to the provisions of the
Certificate of Incorporation relating to the rights of the holders of any class
or series of stock having a preference over the Common Stock as to dividends or
upon liquidation to elect additional directors under specified circumstances,
the number of directors shall be as fixed from time to time by resolution of the
Board adopted by the affirmative vote of at least two-thirds of the directors
then in office, provided the number shall be not less than the minimum or more
than the maximum number permitted by the Certificate of Incorporation, provided
further that if no such minimum or maximum number is stated in the Certificate
of Incorporation the number shall not be less than three nor more than 12. The
directors, other than those who may be elected by the holders of any class or
series of stock having a preference over the Common Stock as to dividends or
upon liquidation, shall be divided into three classes as nearly equal in number
as possible, with the term of office of one class expiring each year. The term
of office of each director shall expire at the third Annual Meeting after
election of the class to which he belongs. During the intervals between Annual
Meetings of Stockholders, any vacancy occurring in the Board of Directors caused
by resignation, removal, death or other incapacity, and any newly-created
directorships resulting from an increase in the number of directors, shall be
filled by a two-thirds vote of the directors then in office, whether or not a
quorum. Each director chosen to fill a vacancy shall hold office for the
unexpired term in respect of which such vacancy occurs. Each director chosen to
fill a newly-created directorship shall hold office until the next election of
the class for which such director shall have been chosen.
26. Subject to the rights of holders of any class or series of stock
having a preference over the Common Stock as to dividends or upon liquidation,
nominations for the election of directors may be made by the Board of Directors
or a committee appointed by the Board of Directors or by any stockholder
entitled to vote in the election of directors generally. However, any
stockholder entitled to vote in the election of directors generally may nominate
one or more persons for election as directors at a meeting only if written
notice of such stockholder's intent to make such nomination or nominations has
been given, either by personal delivery or by United States mail,
6
<PAGE>
postage prepaid, to the Secretary of the Corporation not later than 90 days
prior to the anniversary date of the immediately preceding annual meeting of
stockholders. Notwithstanding the foregoing if an existing director is not
standing for reelection to a directorship that is the subject of an election at
such meeting, then a stockholder may make a nomination with respect to such
directorship at anytime not later than the close of business on the tenth day
following the date on which a written statement setting forth the fact that such
directorship is to be elected and the name of the nominee proposed by the Board
of Directors is first mailed to stockholders. Each notice of a nomination from
a stockholder shall set forth: (a) the name and address of the stockholder who
intends to make the nomination and of the person or persons to be nominated; (b)
a representation that the stockholder is a holder of record of stock of the
Corporation entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting to nominate the person or persons specified in the
notice; (c) a description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming such person
or persons) pursuant to which the nomination or nominations are to be made by
the stockholder; (d) such other information regarding each nominee proposed by
such stockholder as would be required to be included in a proxy statement filed
pursuant to the Securities Exchange Act of 1934 and the rules and regulations
thereunder (or any subsequent provisions replacing such Act, rules or
regulations); and (e) the consent of each nominee to serve as a director of the
Corporation if so elected. The presiding officer of the meeting may refuse to
acknowledge the nomination of any person not made in compliance with the
foregoing procedure.
27. Any director may be removed from office as a director at any time, but
only for cause (as set forth in the Certificate of Incorporation), by the
affirmative vote of stockholders of record holding a majority of the outstanding
shares of stock of the Corporation entitled to vote in elections of directors at
a meeting of the stockholders called for that purpose.
28. Regular meetings of the Board of Directors shall be held at such times
and at such place or places as the directors shall, from time to time, determine
at a prior meeting. Special meetings of the Board may be called by the Chairman
of the Board or President of the Corporation and shall be called by either of
said officers upon the written request of any two directors. Special meetings
shall be held at the office of the Corporation or at such place as is stated in
the notice of the meeting. No notice shall be required for regular meetings of
the Board. Notices of special meetings shall be given by mail at least five
days before the meeting or by telephone, telecopy or telegram at least 24 hours
before the meeting. Notices may be waived. Notices need not include any
statement of the purpose of the meeting.
29. When all of the directors shall be present at any meeting, however
called or notified, they may act upon any business that might lawfully be
transacted at regular meetings of the Board, or at special meetings duly called,
and action taken at such meetings shall be as valid and binding as if legally
called and notified. Members of the Board of Directors may participate in a
meeting of the Board by means of conference telephone or similar communications
equipment to the full extent and with the same effect as authorized and
permitted by the law of the State of Delaware.
7
<PAGE>
30. One-third of the total number of the members of the Board of Directors
(but in no event less than three directors) shall constitute a quorum for the
transaction of business, and the acts of a majority of the directors present at
any meeting at which there is a quorum present shall be the acts of the Board;
provided, however, that the directors may act in such other manner, with or
without a meeting, as may be permitted by the laws of the State of Delaware and
provided further, that if all of the directors shall consent in writing to any
action taken by the Corporation, such action shall be as valid as though it had
been authorized at a meeting of the Board.
31. Directors shall receive such compensation and reimbursement for
expenses for attendance at meetings of the Board or of committees thereof and
such other compensation as shall be fixed by a majority of the entire Board.
COMMITTEES OF DIRECTORS
32. The Board of Directors shall establish an Audit Committee and a
Compensation Committee, and may establish an Executive Committee, a Nominating
Committee and such other committees as may be established by resolution of a
majority of the whole Board. Each of such committees shall consist of one or
more members of the Board. Members of committees of the Board of Directors
shall be elected annually by vote of a majority of the Board. The Chief
Executive Officer shall be an ex-officio nonvoting member of each committee
(except the Audit and Compensation Committees) of which he is not elected as an
official voting member. With respect to any committee (including the Audit and
Compensation Committees) of which the Chief Executive Officer is not an official
voting member, the Chief Executive Officer shall be given notice of all
committee meetings at the same time notice is given to committee members, and
the Chief Executive Officer shall be afforded the opportunity to speak at the
committee meeting. Presence of a majority of the committee members (not
counting any ex-officio nonvoting members) shall constitute a quorum.
Committees may act by majority vote of the voting members present at a meeting.
Each of such committees shall have and may exercise such of the powers of the
Board of Directors in the management of the business and affairs of the
Corporation as may be provided in these Bylaws or by resolution of the Board of
Directors. Each of such committees may authorize the seal of the Corporation to
be affixed to any document or instrument. The Board of Directors may designate
one or more directors as alternate members of any such committee, who may
replace any absent or disqualified member at any meeting of such committee.
Meetings of committees may be called by any member of a committee by written,
telegraphic or telephonic notice to all members of the committee and the Chief
Executive Officer and shall be held at such time and place as shall be stated in
the notice of meeting. Any member of a committee may participate in any meeting
by means of conference telephone or similar communications equipment. In the
absence or disqualification of a member of any committee the member or members
thereof present at any meeting and not disqualified from voting, whether or not
constituting a quorum may, if deemed advisable, unanimously appoint another
member of the Board to act at the meeting in the place of the disqualified or
absent member. Each committee may fix such other rules and procedures governing
conduct of meetings as it shall deem appropriate.
8
<PAGE>
33. The Executive Committee of the Board of Directors, if one is
established, shall consist of not less than three directors. The Executive
Committee shall have and exercise the authority of the Board of Directors
between meetings of the Board, subject to such limitations and restrictions
required by Delaware law or as the Board may impose in a resolution duly adopted
by the Board.
34. The Audit Committee shall consist of not less than two members of the
Board of Directors, none of whom shall be employees of the Corporation. The
Audit Committee shall be responsible for recommending to the entire Board
engagement and discharge of independent auditors of the financial statements of
the Corporation, shall review the professional service provided by independent
auditors, shall review the independence of independent auditors, shall review
with the auditors the plan and results of the auditing engagement, shall
consider the range of audit and non-audit fees, shall review the adequacy of the
Corporation's system of internal accounting controls, shall review the results
of procedures for internal auditing and shall consult with the internal auditor
of the Corporation with respect to all aspects of the Corporation's internal
auditing program. In addition, the Audit Committee shall direct and supervise
special investigations as deemed necessary by the Audit Committee.
35. The Compensation Committee shall consist of not less than two members
of the Board of Directors, none of whom shall be employees of the Corporation.
The Compensation Committee shall recommend to the Board the compensation to be
paid to officers and key employees of the Corporation and the compensation of
members of the Board of Directors. Except as otherwise provided in any specific
plan adopted by the Board, the Compensation Committee shall be responsible for
administration of executive incentive compensation plans, stock option plans and
other forms of direct or indirect compensation of officers and key employees,
and each member of the Compensation Committee shall have the power and authority
to execute and bind the Company to such documents, agreements and instruments
related to such plans and compensation as are approved by the Compensation
Committee. In the alternative, the Compensation Committee may authorize any
officer of the Company to execute such documents, agreements and instruments on
behalf of the Company. In addition, the Compensation Committee shall review
levels of pension benefits and insurance programs for officers and key
employees.
36. The Nominating Committee, if one is established, shall recommend to
the Board nominees for election as directors. The Nominating Committee shall
consider performance of incumbent directors and shall recommend to the Board
whether an incumbent director whose term expires shall be nominated for
reelection.
37. Any action required or permitted to be taken at any meeting of any
committee of the Board of Directors may be taken without a meeting if a consent
in writing, setting forth the action so taken, is signed by all of the members
of such committee.
9
<PAGE>
OFFICERS
38. The Board of Directors shall elect a President and a Secretary, and
may elect a Chairman of the Board, a Treasurer, one or more vice presidents,
including an Executive Vice President and Chief Financial Officer, a General
Counsel, a Controller, one or more assistant secretaries and assistant
treasurers, and such other officers as the Board of Directors shall deem
appropriate. The Chairman of the Board shall be a director of the Corporation.
Other officers need not be directors.
39. Officers of the Corporation shall hold office until their successors
are chosen and qualified or until their earlier resignation or removal. Any
officer, agent or employee may be removed at any time, with or without cause, by
the Board but such removal shall be without prejudice to the contractual rights,
if any, of the person so removed. Election or appointment of an officer or
agent shall not of itself create contract rights. Vacancy occurring in any
office or position at any time may be filled by the Board. All officers, agents
and employees of the Corporation shall respectively have such authority and
perform such duties in the conduct and management of the Corporation as may be
delegated by the Board of Directors or by these Bylaws but such delegation shall
be without prejudice to the contractual rights if any, of the person so
delegated such duties.
40. Officers shall receive such compensation as may from time to time be
determined by the Board of Directors. Agents and employees shall receive such
compensation as may from time to time be determined by the Chief Executive
Officer.
41. The Chairman of the Board, if one is elected, may preside, or may
direct that the President so preside, at all meetings of the stockholders and at
all meetings of the directors. In the absence of the Chairman of the Board, or
if no Chairman of the Board is elected, the President shall so preside. If the
Board of Directors shall elect a person to be the Chairman of the Board and
shall designate such person the Chief Executive Officer of the Corporation, the
Chairman of the Board shall supervise and direct the operations of the business
of the Corporation in accordance with the policies determined by the Board of
Directors.
42. Unless the Board of Directors shall have elected a Chairman of the
Board of Directors and designated such person the Chief Executive Officer of the
Corporation, the President shall be the Chief Executive Officer of the
Corporation, supervising and directing the operations of the business of the
Corporation in accordance with the policies determined by the Board of
Directors. If the Board of Directors shall have elected a person as Chairman of
the Board and designated such person as a Chief Executive Officer of the
Corporation, the President shall be the Chief Operating Officer of the
Corporation and shall be responsible for the general supervision and control of
the business and the affairs of the Corporation subject to the directions of the
Chairman of the Board and the Board of Directors. If the Board of Directors
shall have elected a person Chairman of the Board and shall designate such
person the Chief Executive Officer of the Corporation, the President, in the
absence or incapacity of such Chairman of the Board, shall perform the duties of
that office.
10
<PAGE>
43. A Vice President, if one is elected, in the absence or incapacity of
the President, shall perform the duties of the President. If there be more than
one Vice President, the Board of Directors shall designate the Vice President
who is to perform the duties of the President in the event of his absence or
incapacity. Each Vice President shall have such other duties and authority as
shall be assigned by the Chief Executive Officer or may be delegated by the
Board of Directors.
44. The Chief Financial Officer, if one is elected, shall be responsible
for and direct, either directly or indirectly through any Treasurer or
Controller, all treasury, accounting, cost and budgeting, and data collection
functions. The Chief Financial Officer will report directly to the President
with a report and policy relationship to the Chairman of the Board and the Board
of Directors.
45. The Secretary shall attend all meetings of the Board of Directors and
all meetings of stockholders and shall record all votes and minutes from all
proceedings in a book to be kept for that purpose. The Secretary shall keep in
safe custody the seal of the Corporation and affix the same to any instrument
requiring it, and when so affixed, it shall be attested by such person's
signature or by the signature of the Treasurer or an Assistant Secretary;
provided, however, that the affixing of the seal of the Corporation to any
document or instrument specifically shall NOT be required in order for such
document or instrument to be binding on or the official act of the Corporation,
and the signature of any authorized officer, without the seal of the
Corporation, shall be sufficient for such purposes. The Secretary shall perform
such other duties and have such other authorities as are delegated to him by the
Board of Directors.
46. The Treasurer, if one is elected, shall be responsible for the care
and custody of all funds and other financial assets, taxes, corporate debt,
order entry and sales invoicing including credit memos, credit and collection of
accounts receivable, cash receipts, and the banking and insurance functions of
the Corporation. The Treasurer shall report directly to and perform such other
duties as shall be assigned by the Chief Financial Officer, if one is elected,
or otherwise the President.
47. The Controller, if one is elected, shall be responsible for the
installation and supervision of all general accounting records of the
Corporation, preparation of financial statements and the annual and operating
budgets and profit plans, continuous audit of accounts and records of the
Corporation, preparation and interpretation of statistical records and reports,
taking and costing of all physical inventories and administering the inventory
levels, supervision of accounts payable and cash disbursements function and
hourly and salary payrolls. The Controller shall report directly to and perform
such other functions as shall be assigned such person by the Chief Financial
Officer, if one is elected, or otherwise the President.
48. The Board of Directors of the Corporation may require any officer,
agent or employee to give bond for the faithful discharge of such person's duty
and for the protection of the Corporation, in such sum and with such surety as
the Board deems advisable.
11
<PAGE>
BANKING, CHECKS AND OTHER INSTRUMENTS
49. The Board of Directors shall by resolution designate the bank or banks
in which the funds of the Corporation shall be deposited, and such funds shall
be deposited in the name of the Corporation and shall be subject to checks drawn
as authorized by resolution of the Board of Directors.
50. The Board of Directors may in any instance designate the officers and
agents who shall have authority to execute any contract, conveyance, or other
instrument on behalf of the Corporation; or may ratify or confirm any execution.
When the execution of any instrument has been authorized without specification
of the executing officer or agents, the Chairman of the Board, if designated as
the Chief Executive Officer of the Corporation, President or any Vice President,
and the Secretary or Assistant Secretary or Treasurer or Assistant Treasurer may
execute the same in the name and on behalf of the Corporation and may affix the
corporate seal thereto; provided, however, that the affixing of the seal of the
Corporation to any document or instrument specifically shall NOT be required in
order for such document or instrument to be binding on or the official act of
the Corporation, and the signature of any authorized officer, without the seal
of the Corporation, shall be sufficient for such purposes. Notwithstanding the
foregoing, no loans shall be contracted on behalf of the Corporation, no
evidence of indebtedness shall be issued in the name of the Corporation and no
guaranty of a third party's indebtedness shall be executed or issued in the name
of the Corporation unless authorized by or pursuant to a resolution adopted by
the Board of Directors. Such authority may be general or confined to specific
instances.
FISCAL YEAR
51. The fiscal year of the Corporation shall begin on the first day of
January and end on the thirty-first day of December.
BOOKS AND RECORDS
52. The proper officers and agents of the Corporation shall keep and
maintain such books, records and accounts of the Corporation's business and
affairs and such stock ledgers and lists of stockholders as the Board of
Directors shall deem advisable and as shall be required by the laws of the State
of Delaware or other states or jurisdictions empowered to impose such
requirements.
INDEMNIFICATION
53. Each director or officer of the Corporation or a subsidiary of the
Corporation who was or is made a party or is threatened to be made a party to or
is involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or a person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or a subsidiary of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent
12
<PAGE>
of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (the "DGCL"), (but, in the case of any such amendment, only
to the extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expenses, (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection therewith and such indemnification shall continue
as to a person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of his or her heirs, executors and administrators.
The right to indemnification conferred in this Section shall be a contract right
and shall include the right to be paid by the Corporation the expenses incurred
in defending any such proceeding in advance of its final disposition; provided,
however, that, if the DGCL requires, the payment of such expenses incurred by a
director or officer in his or her capacity as a director or officer (and not in
any other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding, payment shall
be made only upon delivery to the Corporation of an undertaking, by or on behalf
of such director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified under the applicable provisions of the DGCL. The Corporation may,
by action of its Board of Directors, provide indemnification to employees and
agents of the Corporation or a subsidiary of the Corporation with the same scope
and effect as the foregoing indemnification of directors and officers.
54. The indemnification and advancement of expenses provided in
paragraph 52 of these Bylaws shall not be deemed exclusive of any other rights
to which those seeking indemnification or advancement of expenses may be
entitled under any agreement, vote of stockholders, vote of disinterested
directors, insurance arrangement or otherwise, both as to action in his or her
official capacity and as to action in another capacity.
AMENDMENTS
55. Except as otherwise provided in the Certificate of Incorporation,
these Bylaws may be altered, amended or repealed and new Bylaws may be adopted
at any regular meeting of the stockholders or Board of Directors; or at any
special meeting of the stockholders or Board of Directors; provided that notice
of such proposed making, alteration or repeal be included in the notice of such
special meeting. The Board of Directors may take such action by the vote of
two-thirds of those Directors present and voting at a meeting where a quorum is
present. Subject to applicable provisions of the Certificate of Incorporation,
the stockholders may make new Bylaws, or adopt, alter, amend, or repeal Bylaws
adopted by either the stockholders or the Board of Directors by the affirmative
vote of the holders of not less than two-thirds (66 2/3%) of the voting power of
all of the then outstanding shares of capital stock of the Corporation then
entitled to vote generally in the election of directors.
13
<PAGE>
EXHIBIT 4.1
<TABLE>
<CAPTION>
<S> <C> <C>
Number Shares
MA Midway
INCORPORATED UNDER THE LAWS AIRLINES SEE REVERSE FOR CERTAIN DEFINITIONS
OF THE STATE OF DELAWARE MIDWAY AIRLINES CORPORATION CUSIP 598126 10 0
This Certifies that
is the record holder of
FULLY PAID AND NONASSESSABLE SHARES OF COMMON STOCK, $.01 PAR VALUE PER SHARE, OF
Midway Airlines Corporation, transferable on the books of the Corporation by the holder hereof in person or by duly
authorized attorney upon the surrender of this Certificate properly endorsed. This Certificate is not valid unless
countersigned by the Transfer Agent and registered by the Registrar.
Witness the facsimile seal and signatures of its duly authorized officers.
[SEAL] Dated:
/s/ Jonathan S Waller /s/ Robert R. Ferguson III
Secretary President and Chief Executive Officer
COUNTERSIGNED AND REGISTERED:
TRANSFER AGENT
AND REGISTRAR
AUTHORIZED SIGNATURE
</TABLE>
<PAGE>
MIDWAY AIRLINES CORPORATION
A statement of the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or
series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights as established, from time to time, by the
Certificate of Incorporation of the Corporation and by any certificate of
determination, the number of shares constituting each class and series, and
the designations thereof, may be obtained by the holder hereof upon request
and without charge at the principal office of the Corporation.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<CAPTION>
<S> <C>
TEN COM -- as tenants in common UNIF GIFT MIN ACT -- ...............Custodian..........
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act.....................................
in common (State)
UNIF TRF MIN ACT -- ...........Custodian.(until age...)
(Cust)
..............under Uniform Transfers
(Minor)
to Minors Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED,_________________________________________hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
___________________________
| |
|___________________________|
__________________________________________________________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
__________________________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________________Shares
of the capital stock represented by the within Certificate, and do hereby irrevocably constitute and appoint
__________________________________________________________________________________________________________________________Attorney
to transfer the said stock on the books of the within named Corporation with full power of substitution in the premises.
Dated_________________________________________________________
X______________________________________________________________
X______________________________________________________________
THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE
NOTICE: NAME(S) AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE
WHATEVER.
Signature(s) Guaranteed
By_____________________________________________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR OR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO
S.E.C. RULE 17ad-15.
2
</TABLE>
<PAGE>
Exhibit 5.1
[Letterhead of Fulbright & Jaworski L.L.P.]
December 1, 1997
Midway Airlines Corporation
300 West Morgan Street, Suite 1200
Durham, North Carolina 27701
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-1 (Registration
No. 333-37375), as amended (the "Registration Statement"), filed by Midway
Airlines Corporation, a Delaware corporation (the "Company"), with the
Securities and Exchange Commission under the Securities Act of 1933, relating to
(i) the offer by the Company of 2,000,000 shares of the Company's Common Stock,
par value $.01 per share (the "Common Stock"), and up to 296,820 shares of
Common Stock that may be sold by the Company in the event the underwriters for
the offering elect to exercise their over-allotment option and (ii) the offer by
certain selling stockholders of the Company listed in the Registration Statement
(the "Selling Stockholders") of 1,850,000 shares of Common Stock and up to
280,680 shares of Common Stock that may be sold by one of the Selling
Stockholders in the event the underwriters for the offering elect to exercise
their over-allotment option.
As counsel to the Company, we have examined such corporate records,
documents and questions of law as we have deemed necessary or appropriate for
the purposes of this opinion. In such examinations, we have assumed the
genuineness of signatures and the conformity to the originals of the documents
supplied to us as copies. As to various questions of fact material to this
opinion, we have relied upon statements and certificates of officers and
representatives of the Company.
Upon the basis of such examination, we are of the opinion that:
(i) The 2,296,820 shares of Common Stock offered by the Company,
when sold in accordance with the terms agreed upon in the Underwriting
Agreement filed as Exhibit 1.1 to the Registration Statement, will be
legally issued, fully paid and nonassessable.
(ii) The 2,130,680 shares of Common Stock offered by the Selling
Stockholders have been legally issued and are fully paid and
nonassessable.
<PAGE>
Midway Airlines Corporation
December 1, 1997
Page 2
We consent to the filing of this opinion as Exhibit 5.1 to the Registration
Statement and to the reference to this firm under the caption "Legal Matters" in
the prospectus contained therein. This consent is not to be construed as an
admission that we are a person whose consent is required to be filed with the
Registration Statement under the provisions of the Securities Act of 1933.
Very truly yours,
/s/ Fulbright & Jaworski L.L.P.
Fulbright & Jaworski L.L.P.
<PAGE>
EXHIBIT 10.46
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND NEITHER THE SECURITIES
NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE
DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH
ACT OR SUCH LAWS OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS,
WHICH, IN THE OPINION OF COUNSEL FOR THE HOLDER, WHICH COUNSEL AND OPINION ARE
REASONABLY SATISFACTORY TO COUNSEL FOR THIS CORPORATION, IS AVAILABLE.
Void After 5:00 p.m., New York City Time,
on February 11, 2004
_____________________________
OPTION TO PURCHASE SHARES OF COMMON STOCK
OF MIDWAY AIRLINES CORPORATION
Midway Airlines Corporation, a Delaware corporation (the "Company"),
hereby certifies that in consideration of his role as Vice
President--Maintenance of the Company and other good and valuable
consideration, Thomas Duffy, Jr. (the "Optionee") is entitled, subject to the
terms set forth below, to purchase from the Company upon surrender of this
Option, at any time or times up to 5:00 p.m., New York City time, on February
11, 2004, the expiration date of this Option, Forty One (41) fully paid and
non-assessable shares of the common stock, $.01 par value per share (the
"Common Stock"), at an initial purchase price of $2,747.25 per share, as the
same may be adjusted in accordance with the provisions hereof (the "Exercise
Price").
As used herein, the term "Company" includes any corporation which shall
succeed to or assume the obligations of the Company hereunder, and the term
"Shares" includes all stock of any class, classes or series whether now or
hereafter authorized (however designated) of the Company, the holders of which
shall have the right (without limitation as to amount) either to all or to a
share of the balance of current dividends and liquidating distributions after
the payment of dividends and distributions on any shares entitled to preference.
The number and character of the Shares which may be purchased upon exercise
of this Option and the purchase price per share in effect from time to time are
subject to adjustment from time to time as hereinafter provided.
1. COMPLIANCE WITH THE SECURITIES ACT OF 1933.
The Shares issuable upon exercise of this Option have not been registered
under the Securities Act of 1933, as amended (the "Act"). The Optionee, by
acceptance hereof, agrees that
<PAGE>
this Option and all Shares purchased upon exercise hereof will be disposed of
only in accordance with the Act and the rules and regulations of the Securities
and Exchange Commission promulgated thereunder. The Shares shall bear an
appropriate legend to such effect.
2. ADJUSTMENTS OF EXERCISE PRICE AND NUMBER
OF SHARES ISSUABLE UPON EXERCISE OF OPTIONS.
(a) ADJUSTMENT OF EXERCISE PRICE. Subject to the provisions of this
Section 2, the Exercise Price in effect from time to time shall be
subject to adjustment, as follows:
(i) In case the Company shall (i) declare a dividend or make a
distribution on the outstanding shares of its Common Stock in
shares of its Common Stock, (ii) subdivide or reclassify the
outstanding shares of its Common Stock into a greater number of
shares, or (iii) combine or reclassify the outstanding shares of
its Common Stock into a smaller number of shares, the Exercise
Price in effect immediately after the record date for such
dividend or distribution or the effective date of such
subdivision, combination or reclassification shall be adjusted so
that it shall equal the price determined by multiplying the
Exercise Price in effect immediately prior thereto by a fraction,
of which the numerator shall be the number of shares of Common
Stock outstanding immediately before such dividend, distribution,
subdivision, combination or reclassification, and of which the
denominator shall be the number of shares of Common Stock
outstanding immediately after such dividend, distribution,
subdivision, combination or reclassification. Such adjustment
shall be made successively whenever any event specified above
shall occur.
(b) NO ADJUSTMENTS TO EXERCISE PRICE. No adjustment in the Exercise Price
in accordance with the provisions of paragraph (a) hereof need be made
if such adjustment would amount to a change in such Exercise Price of
less than $.05; PROVIDED, HOWEVER, that the amount by which any
adjustment is not made by reason thereof shall be carried forward and
taken into account at the time of any subsequent adjustment in the
Exercise Price.
(c) ADJUSTMENT TO NUMBER OF SHARES. Upon each adjustment of the Exercise
Price pursuant to paragraph (a), each Option shall thereupon evidence
the right to purchase that number of shares of Common Stock
(calculated to the nearest hundredth of a share) obtained by
multiplying the number of shares of Common Stock purchasable
immediately prior to such adjustment upon exercise of the Option by
the Exercise Price in effect immediately prior to such adjustment and
dividing the product so obtained by the Exercise Price in effect
immediately after such adjustment.
(d) REORGANIZATIONS. In case of any capital reorganization, other than in
the cases referred to in paragraph (a) hereof, or the consolidation or
merger of the Company with or into another corporation (other than a
merger or consolidation in which the Company is the continuing
corporation and which does not result in any reclassification of the
outstanding shares of Common Stock or the conversion of
2
<PAGE>
such outstanding shares of Common Stock into shares of other stock or
other securities or property), (collectively such actions being
hereinafter referred to as "Reorganizations"), there shall thereafter
be deliverable upon exercise of any Option (in lieu of the number of
shares of Common Stock theretofore deliverable) the number of shares
of stock or other securities or property to which a holder of the
number of shares of Common Stock which would otherwise have been
deliverable upon the exercise of such Option would have been entitled
upon such Reorganization if such Option had been exercised in full
immediately prior to such Reorganization. In case of any
Reorganization, appropriate adjustment, as determined in good faith by
the Board of Directors of the Company, shall be made in the
application of the provisions herein set forth with respect to the
rights and interests of Option holders so that the provisions set
forth herein shall thereafter be applicable, as nearly as possible, in
relation to any shares or other property thereafter deliverable upon
exercise of Options. Any such adjustment shall be made by and set
forth in a supplemental agreement between the Company, or any
successor thereto, and the Option holders and shall for all purposes
hereof conclusively be deemed to be an appropriate adjustment. The
Company shall not effect any such Reorganization, unless upon or prior
to the consummation thereof the successor corporation, or if the
Company shall be the surviving corporation in any such Reorganization
and is not the issuer of the shares of stock or other securities or
property to be delivered to holders of shares of the Common Stock
outstanding at the effective time thereof, then such issuer, shall
assume by written instrument the obligation to deliver to the
registered holder of any Option Certificate such shares of stock,
securities, cash or other property as such holder shall be entitled to
purchase in accordance with the foregoing provisions. In the event of
sale or conveyance or other transfer of all or substantially all of
the assets of the Company as a part of a plan for liquidation of the
Company, all rights to exercise any Option shall terminate thirty
(30) days after the Company gives written notice to each registered
holder of a Option Certificate that such sale or conveyance or other
transfer has been consummated.
(e) EXERCISE PRICE NOT LESS THAN PAR VALUE. In no event shall the
Exercise Price be adjusted below the par value per share of the Common
Stock.
(f) NOTICE OF CERTAIN ACTIONS. In the event the Company shall:
(i) declare any dividend payable in stock to the holders of its
Common Stock or make any other distribution in property other
than cash to the holders of its Common Stock; or
(ii) offer to the holders of its Common Stock rights to subscribe
for or purchase any shares of any class of stock or any other
rights or options; or
(iii) effect any reclassification of its Common Stock (other than a
reclassification involving merely the subdivision or
combination of outstanding shares of Common Stock), any
capital reorganization, any consolidation or merger (other
than a merger in which no distribution of securities or other
property is made to holders of Common Stock), or any
3
<PAGE>
sale, transfer of all or substantially all of the assets of
the Company, or the liquidation, dissolution or winding up of
the Company; or
(iv) issue any shares of Common Stock in exchange for shares of
preferred stock of the Company, other than upon conversion of
such shares of preferred stock;
then, in each such case, the Company shall cause notice of such
proposed action to be mailed to the Optionee. Such notice shall
specify the date on which the books of the Company shall close, or a
record be taken, for determining holders of Common Stock entitled to
receive such stock dividend or other distribution or such rights or
options, or the date on which such reclassification, reorganization,
consolidation, merger, sale, transfer, other disposition, liquidation,
dissolution, winding up or exchange shall take place or commence, as
the case may be, and the date as of which it is expected that holders
of record of Common Stock shall be entitled to receive securities or
other property deliverable upon such action, if any such date has been
fixed. Such notice shall be mailed in the case of any action covered
by Subsection (f)(i) or (f)(ii) above, at least ten (10) days prior to
the record date for determining holders of the Common Stock for
purposes of receiving such payment or offer, and in the case of any
action covered by Subsection (f)(iii) or (f)(iv) above, at least ten
(10) days prior to the earlier of the date upon which such action is
to take place or any record date to determine holders of Common Stock
entitled to receive such securities or other property.
(g) NOTICE OF ADJUSTMENTS. Whenever any adjustment is made pursuant to
this Section 2, the Company shall cause notice of such adjustment to
be mailed to the Optionee within fifteen (15) days thereafter, such
notice to include in reasonable detail (i) the events precipitating
the adjustment, (ii) the computation of any adjustments, and (iii) the
Exercise Price, the number of shares or the securities or other
property purchasable upon exercise of the Option after giving effect
to such adjustment.
(h) OPTION CERTIFICATE AMENDMENTS. Irrespective of any adjustments
pursuant to this Section 2, Option Certificates theretofore or
thereafter issued need not be amended or replaced, but certificates
thereafter issued shall bear an appropriate legend or other notice of
any adjustments.
(i) FRACTIONAL SHARES. The Company shall not be required upon the
exercise of any Option to issue fractional shares of Common Stock
which may result from adjustments in accordance with this Section 2 to
the Exercise Price or number of shares of Common Stock purchasable
under each Option. If more than one Option is exercised at one time
by the same registered holder, the number of full shares of Common
Stock which shall be deliverable shall be computed based on the number
of shares deliverable in exchange for the aggregate number of Options
exercised. With respect to any final fraction of a share called for
upon the exercise of any Option or Options, the Company shall pay a
cash adjustment in respect of such final fraction in an amount equal
to the same fraction of the market value of a share of Common Stock,
as determined by the Company on the basis of the market price per
share of Common Stock on the business day next preceding the date of
such exercise. The registered holder of each Option Certificate, by
his acceptance of
4
<PAGE>
the Option Certificate, shall expressly waive any right to receive any
fractional share of Common Stock upon exercise of the Options. For
the purposes hereof, the market price share of Common Stock at any
date shall mean the last reported sale price regular way or, in case
no such reported sale takes place on such date, the average of the
last reported bid and asked prices regular way, in either case on the
principal national securities exchange on which the Common Stock is
admitted to trading or listed if that is the principal market for the
Common Stock or if not listed or admitted to trading on any national
securities exchange or if such national securities exchange is not the
principal market for the Common Stock, the closing bid price as
reported by the NASDAQ System or its successor, if any. If the price
of the Common Stock is not so reported, then such market price shall
mean the last known price paid per share by a purchaser of such stock
in an arms-length transaction. All calculations made hereunder shall
be to the nearest 1/100th of a share.
(j) The Company shall at all times reserve and keep available, out of its
treasury stock or authorized and unissued stock, solely for the
purpose of effecting the exercise of this Option, such number of
shares of Common Stock and other securities of the Company as shall,
from time to time, be sufficient to effect the exercise of this
Option. All shares of Common Stock issued on exercise of this Option
shall be validly issued, fully paid and nonassessable.
(k) For purposes of this Option, the number of shares of Common Stock at
any time outstanding shall include the maximum number of shares of
Common Stock issuable at such time as a result of the conversion of
any and all shares of preferred stock which are then outstanding and
convertible into shares of Common Stock and as a result of the
exercise of any warrant or other right to subscribe to or purchase, or
any options for the purchase of shares of Common Stock.
3. EXPIRATION.
This Option shall be void after 5:00 p.m., New York City time, on February
11, 2004, and no rights herein given to the holder of this Option shall exist
thereafter.
4. OPTION HOLDER NOT DEEMED A STOCKHOLDER.
No holder of this Option as such, shall be entitled to vote or receive
dividends or be deemed the holder of shares of the Company for any purpose, nor
shall anything contained in this Option be construed to confer upon the holder
hereof, as such, any of the rights of a stockholder of the Company or any right
to vote, give or withhold consent to any corporate action (whether any
reorganization, issue of stock, reclassification of stock, consolidation,
merger, conveyance or otherwise), receive notice of meetings, receive dividends
or subscription rights, or otherwise, prior to the issuance of record to the
holder of this Option of the Shares which he is then entitled to receive upon
the due exercise of this Option.
5
<PAGE>
5. NO LIMITATION ON CORPORATE ACTION.
Except as otherwise provided herein, no provisions of this Option and no
right or option granted or conferred hereunder shall in any way limit, affect or
abridge the exercise by the Company of any of its corporate rights or powers to
recapitalize, amend its Certificate of Incorporation, reorganize, consolidate or
merge with or into another corporation, or to transfer all or any part of its
property or assets, or the exercise of any other of its corporate rights and
powers.
6. EXERCISE OF OPTION.
(a) VESTING. The Option shall become exercisable as follows: (1) that
portion representing 8.2 Shares shall become exercisable on
February 11, 1998; (2) that portion representing 8.2 Shares shall
become exercisable on February 11, 1999; (3) that portion representing
8.2 Shares shall become exercisable on February 11, 2000; (4) that
portion representing 8.2 Shares shall become exercisable on February
11, 2001; and (5) that portion representing 8.2 Shares shall become
exercisable on February 11, 2002.
(b) FULL EXERCISE. This Option may be exercised as a whole (as to that
portion of the Shares which shall have become subject to exercise
pursuant to clause (a) above) by the holder hereof by surrendering
this Option, with the form of subscription at the end hereof duly
executed by such holder, to the Company at any time before 5:00 p.m.,
New York City time, on February 11, 2004, at the principal office of
its transfer agent accompanied by payment in cash or by certified or
official bank check, payable to the order of the Company, of the
product obtained by multiplying the number of Shares called for on the
face of this Option (giving effect to any adjustments therein) by the
purchase price then in effect.
(c) PARTIAL EXERCISE. This Option also may be exercised in part (as to
that portion of the Shares which shall have become subject to exercise
pursuant to clause (a) above) by surrendering this Option in the
manner specified in subsection (b) of this Section 6, except that the
number of Shares or other securities or property receivable upon the
exercise of this Option as a whole shall be proportionately reduced.
Upon any such partial exercise, the Company, at its expense, will
forthwith issue to the holder hereof a new Option or Options (herein
collectively referred to as "this Option") of like tenor evidencing
the rights of such holder to purchase a number of shares with respect
to which the Option shall not have been exercised (as such number
would be constituted on the date hereof.)
DELIVERY OF STOCK CERTIFICATES, ETC. As soon as practicable after any exercise
of this Option and payment of the sum payable upon such exercise, and in any
event within 10 days thereafter, the Company, at its expense (including the
payment by it of any applicable issue taxes), will cause to be issued in the
name of and delivered to the holder hereof, or as such holder (upon payment by
such holder of any applicable transfer taxes) may direct, a certificate or
certificates for the number of fully paid and nonassessable Shares or other
securities or property to which such holder shall be entitled upon such
exercise, plus, in lieu of any fractional Shares to which such holder would
otherwise be entitled, cash equal to such fraction multiplied by the Fair Market
Value of a Share.
6
<PAGE>
Issuance and delivery of the Shares deliverable on the due exercise of this
Option may be postponed by the Company and its transfer agent during any period,
not exceeding forty days, for which the transfer books of the Company for the
Shares are closed between (1) the record date set by the Board of Directors for
the determination of stockholders entitled to vote at or to receive notice of
any stockholders' meeting, or entitled to receive payment of any dividends or to
any allotment of rights or to exercise rights in respect of any change,
conversion or exchange of capital stock, and (2) the date of such meeting of
stockholders, the date for the payment of such dividends, the date for such
allotment of rights, or the date when any such change or conversion or exchange
of capital stock shall go into effect, as the case may be.
7. TRANSFER OF OPTIONS.
This Option shall not be transferable by the Optionee other than by will or
under the laws of descent and distribution, and shall be exercisable, during the
Optionee's lifetime, only by the Optionee.
8. TERMINATION OF EMPLOYMENT OF OPTIONEE.
If, before the date of expiration of the Option, the Optionee and the
Company sever the employment relationship for any reason the Option shall
terminate and the ability of the Optionee to exercise his/her right to purchase
Shares hereunder shall end at 9:00 a.m. E.S.T. on the earlier of the date of
expiration of the Option or the date which is 30 days following the date of the
severance of the employment relationship; provided that if the Company severs
the employment relationship for "Cause" as such term is defined below, then the
Option shall terminate and the ability of the Optionee to exercise his/her right
to purchase Shares hereunder shall end at 9:00 a.m. E.S.T. on the date the
employment relationship is severed. Whether authorized leave of absence, or
absence on military or government service, shall constitute severance of the
employment relationship between the Company and the Optionee, shall be
determined by the Company at the time thereof. If, before the date of
expiration of the Option, the Optionee shall be retired in good standing from
the employ of the Company for reasons of age or disability under the then
established rules of the Company, the Option shall terminate on the earlier of
such date of expiration or one year after the date of such retirement. In the
event of such retirement, the Optionee shall have the right prior to the
termination of such Option to exercise the Option to the extent to which he was
entitled to exercise such Option immediately prior to such retirement. Upon the
death of the Optionee, his executors, administrators, or any person or persons
to whom his Option may be transferred by will or by the laws of descent and
distribution, shall have the right, at any time prior to the earlier of the date
of expiration or one year following the date of such death, to exercise the
Option, in whole or in part. For purposes of this paragraph only, "Cause" means
(1) the failure or refusal by Optionee to carry out specific directions of the
President or Chief Executive Officer of the Company assigned to Optionee
hereunder, which failure or refusal is not remedied by Optionee within 30 days
after written notice from the Company, (2) the commission by Optionee of a
felony involving moral turpitude, or (3) the gross negligence or the breach of
any statutory or common law duty to the Company by Optionee in the performance
of Optionee's duties.
7
<PAGE>
9. NO EMPLOYMENT OBLIGATION.
The granting of this Option shall not impose upon the Company any
obligation to employ or continue to employ the Optionee; and the right of the
Company to terminate the employment of the Optionee shall not be diminished or
affected by reason of the fact that this Option has been granted to the
Optionee.
10. NOTICES.
All communications hereunder shall be in writing and, if sent to the holder
hereof shall be mailed by registered or certified mail or delivered or
telegraphed and confirmed in writing such holder's address as set forth below,
and if sent to the Company, shall be mailed by registered or certified mail or
delivered or telegraphed and confirmed in writing to the Company at its address
as set forth below.
If to Optionee:
________________
________________
If to the Company:
Midway Airlines Corporation
300 W. Morgan Street, 12th Floor
Durham, North Carolina 27701
ATTENTION: Secretary
11. REGISTRATION RIGHTS.
(a) PIGGYBACK REGISTRATION. If at any time or times after the date of a
Qualified Public Offering, the Company shall determine to register any
of its Common Stock or securities convertible into or exchangeable for
Common Stock under the Securities Act of 1933, as amended (the
"Securities Act"), whether in connection with a public offering of
securities by the Company, a public offering thereof by stockholders,
or both (but not in connection with a registration effected solely to
implement an employee benefit plan or a transaction to which Rule 145
or any other similar rule of the Commission under the Securities Act
is applicable), the Company will promptly give written notice thereof
to the Optionee, and will file a registration statement at the
Securities and Exchange Commission and use its best efforts to effect
the registration under the Securities Act of all securities issued
upon exercise of the Option which the Optionee may request in a
writing delivered to the Company within fifteen (15) days after the
notice given by the Company; PROVIDED, HOWEVER, that in the event that
any registration pursuant to this Section 11 shall be, in whole or in
part, an underwritten public offering of Common Stock, the number of
shares to be included in such an underwriting may be reduced if and to
the extent that the managing underwriter shall be of the opinion that
such inclusion would adversely affect the marketing of the securities
to be sold by the Company therein. These rights shall be subordinate
to the rights
8
<PAGE>
of the stockholders to that certain Stockholders Agreement dated as of
February 11, 1997 by and among the Company and certain stockholders.
For purposes of this Section, Qualified Public Offering shall mean an
underwritten public offering of shares of Common Stock pursuant to a
registration statement filed with the Commission under the Securities
Act, in which net proceeds, after deducting underwriters' discounts
and commissions and offering expenses, to the Company equal or exceed
$15,000,000 and the Company has a Market Capitalization in excess of
$40,000,000. For purposes of this Section, "Market Capitalization"
shall mean the number of shares outstanding on a fully diluted basis
multiplied by the price per share of the initial public offering.
(b) REGISTRATION EXPENSES. In the event of a registration described
herein, all reasonable expenses of registration including, without
limitation, printing expenses, fees and disbursements of counsel, and
independent public accountants, fees and expenses (including counsel
fees incurred in connection with complying with state securities or
"blue sky" laws, fees of the National Association of Securities
Dealers, Inc. and fees of transfer agents and registrars), shall be
borne by the Company, except that the Optionee shall bear underwriting
commissions and discounts attributable to his securities being
registered.
(c) RULE 144 REQUIREMENTS. If the Company becomes subject to the
reporting requirements of either Section 13 or Section 15(d) of the
Exchange Act, the Company will use its best efforts to file with the
Commission such information as the Commission may require under either
of said sections; and in such event, the Company shall use its best
efforts to take all action as may be required as a condition to the
availability of Rule 144 of the Securities Act (or any successor
exemptive rule hereinafter in effect).
Dated: February 11, 1997
MIDWAY AIRLINES CORPORATION
By:___________________________
Name:_________________________
Title:________________________
ATTEST:
By____________________________
Name:_________________________
Title:________________________
ACKNOWLEDGED AND AGREED:
_____________________________
THOMAS DUFFY, JR.
_____________________________
DUPLICATE ORIGINAL
9
<PAGE>
EXERCISE FORM
TO BE EXECUTED BY THE OPTIONEE
IF HE DESIRES TO EXERCISE THIS OPTION
_____________________________
The undersigned hereby exercises the right to purchase Shares covered
by this Option according to the conditions thereof and herewith makes payment of
the purchase of such Shares in full.
_________________________
Signature
_________________________
Address
_________________________
Number of Shares
Being Purchased
Dated: _______________
10
