Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
__________________
MIDWEST EXPRESS HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
Wisconsin 39-1828757
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
6744 South Howell Avenue
Oak Creek, Wisconsin 53154
(Address of principal executive offices) (Zip Code)
Astral Aviation, Inc. 401(k) Plan
(Full title of the plans)
____________________
Timothy E. Hoeksema
Chairman of the Board, President and Chief Executive Officer
Midwest Express Holdings, Inc.
6744 South Howell Avenue
Oak Creek, Wisconsin 53154
(414) 570-4000
(Name, address and telephone number, including area code,
of agent for service)
__________________________
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to to be Price Offering Registration
be Registered Registered Per Share Price Fee
Common Stock, 50,000 shares $33.8125(1) $1,690,625(1) $520
$.01 par value
Preferred Share 50,000 rights (2) (2) (2)
Purchase Rights
(1) Estimated pursuant to Rule 457(c) under the Securities Act of
1933 solely for the purpose of calculating the registration fee
based on the average of the high and low prices for Midwest
Express Holdings, Inc. Common Stock on the New York Stock
Exchange consolidated reporting system on December 11, 1996.
(2) The value attributable to the Preferred Share Purchase Rights is
reflected in the market price of the Common Stock to which the
Rights are attached.
_________________________________
In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information specified
in Part I are not required to be filed with the Securities and Exchange
Commission (the "Commission") as part of this Form S-8 Registration
Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission by Midwest
Express Holdings, Inc. (the "Company") or by the Astral Aviation, Inc.
401(k) Plan (the "Plan") are hereby incorporated herein by reference:
1. The Company's Annual Report on 10-K for its fiscal year
ended December 31, 1995.
2. All other reports filed since December 31, 1995 by the
Company pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934, as amended.
3. The description of the Company's Common Stock contained in
Item 4 of the Company's Registration Statement on Form 8-B dated April 30,
1996, including any amendment or report filed for the purpose of updating
such description.
4. The description of the Company's Preferred Share Purchase
Rights contained in Item 1 of the Company's Preferred Share Purchase
Rights Registration Statement on Form 8-A dated February 14, 1996,
including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Company or the Plan
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, as amended, after the date of filing of this Registration
Statement and prior to such time as the Company files a post-effective
amendment to this Registration Statement which indicates that all
securities offered hereby have been sold or which deregisters all
securities then remaining unsold shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the
date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Pursuant to the Wisconsin Business Corporation Law and By-Laws
of the Company, as amended, directors and officers of the Company are
entitled to mandatory indemnification from the Company against certain
liabilities and expenses (i) to the extent such officers or directors are
successful in the defense of a proceeding and (ii) in proceedings in which
the director or officer is not successful in the defense thereof, unless
(in the latter case only) it is determined that the director or officer
breached or failed to perform his duties to the Company and such breach or
failure constituted: (a) a willful failure to deal fairly with the
Company or its shareholders in connection with a matter in which the
director or officer had a material conflict of interest; (b) a violation
of the criminal law, unless the director or officer had reasonable cause
to believe his or her conduct was lawful or had no reasonable cause to
believe his or her conduct was unlawful; (c) a transaction from which the
director or officer derived an improper personal profit; or (d) willful
misconduct. It should also be noted that the Wisconsin Business
Corporation Law specifically states that it is the policy of Wisconsin to
require or permit indemnification in connection with a proceeding
involving securities regulation, as described therein, to the extent
required or permitted as described above. Additionally, under the
Wisconsin Business Corporation Law, directors of the Company are not
subject to personal liability to the Company, its shareholders or any
person asserting rights on behalf thereof for certain breaches or failures
to perform any duty resulting solely from their status except in
circumstances paralleling those in subparagraphs (a) through (d) outlined
above. Additional indemnification may be provided by resolution of the
Company's Board of Directors except as prohibited by law.
Expenses for the defense of any action for which indemnification
may be available may be advanced by the Company under certain
circumstances.
The Company maintains a liability insurance policy for its
directors and officers as permitted by Wisconsin law which may extend to,
among other things, liability arising under the Securities Act of 1933, as
amended.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The exhibits filed herewith or incorporated herein by reference
are set forth in the attached Exhibit Index.
The undersigned Registrant hereby undertakes to submit the Plan,
as amended, to the Internal Revenue Service ("IRS") in a timely manner and
will make all changes required by the IRS in order to continue the
qualification of the Plan under Section 401 of the Internal Revenue Code
of 1986, as amended.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933, as amended;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended, that are incorporated by reference in
the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, as amended, each such post-effective amendment
shall be deemed to be a new Registration Statement relating to the
securities offered herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, as
amended, each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended,
that is incorporated by reference in this Registration Statement shall be
deemed to be a new Registration Statement relating to the securities
offered herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933, as amended, may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been advised that
in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or controlling person of
the Registrant 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 Registrant 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 Act and will be governed by the final adjudication of
such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Milwaukee, State of Wisconsin,
on December 10, 1996.
MIDWEST EXPRESS HOLDINGS, INC.
By: /s/ Timothy E. Hoeksema
Timothy E. Hoeksema
Chairman of the Board, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below as of December 10, 1996, by
the following persons in the capacities indicated.
/s/ Timothy E. Hoeksema Chairman of the Board,
Timothy E. Hoeksema President, Chief Executive
Officer and Director (principal
executive officer)
/s/ Robert S. Bahlman Vice President, Chief Financial
Robert S. Bahlman Officer, Treasurer and
Controller (principal financial
officer and principal accounting
officer)
/s/ Brenda F. Skelton
Brenda F. Skelton Senior Vice President-Marketing
and Customer Service and
Director
/s/ John F. Bergstrom Director
John F. Bergstrom
/s/ Oscar C. Boldt Director
Oscar C. Boldt
/s/ Albert J. DiUlio, S.J. Director
Albert J. DiUlio, S.J.
/s/ James G. Grosklaus Director
James G. Grosklaus
/s/ Frederick P. Stratton, Jr. Director
Frederick P. Stratton, Jr.
/s/ David H. Treitel Director
David H. Treitel
/s/ John W. Weekly
John W. Weekly Director
The Plan. Pursuant to the requirements of the Securities Act of
1933, as amended, the persons who administer the Plan have duly caused
this Registration Statement to be signed on behalf of the undersigned,
thereunto duly authorized, in the City of Milwaukee, and the State of
Wisconsin, on this 10th day of December, 1996.
ASTRAL AVIATION, INC. 401(k) PLAN
By: /s/ Todd Rodeberg
Todd Rodeberg
Human Resources Manager
Astral Aviation, Inc.
<PAGE>
EXHIBIT INDEX
Exhibit No. Exhibit
(4.1) Article Five of the Company's Restated
Articles of Incorporation (incorporated by
reference to Exhibit 3.1 to the Company's
Registration Statement on Form 8-B dated
April 30, 1996 (File No. 1-13934)).
(4.2) Articles of Amendment relating to Series A
Junior Participating Preferred Stock
(incorporated by reference to Exhibit 3.3
to the Company's Registration Statement on
Form 8-B dated April 30, 1996 (File No. 1-
13934)).
(4.3) Credit Agreement among Firstar Bank
Milwaukee, N.A., M&I Marshall & Ilsley
Bank, Bank One, Milwaukee, N.A. and
Midwest Express Holdings, Inc., dated
September 27, 1995 (incorporated by
reference to Exhibit 4.1 to the Company's
Quarterly Report on Form 10-Q for the
quarter ended September 30, 1995 (File No.
1-13934)).
(4.4) Credit Agreement between Kimberly-Clark
Corporation and Midwest Express Holdings,
Inc., dated September 27, 1995
(incorporated by reference to Exhibit 4.2
to the Company's Quarterly Report on Form
10-Q for the quarter ended September 30,
1995 (File No. 1-13934)).
(4.5) Rights Agreement, dated February 14, 1996,
between Midwest Express Holdings, Inc. and
Firstar Trust Company (incorporated by
reference to Exhibit 4.1 to the Company's
Registration Statement on Form 8-A filed
February 15, 1996 (File No. 1-13934)).
(4.6) Amendment to the Rights Agreement, dated
April 19, 1996, between Midwest Express
Holdings, Inc. and Firstar Trust Company
(incorporated by reference to Exhibit 4.4
to the Company's Registration Statement on
Form 8-B dated April 30, 1996 (File No. 1-
13934)).
(5) Opinion of Foley & Lardner.
(23.1) Consent of Deloitte & Touche LLP.
(23.2) Consent of Foley & Lardner (contained in
Exhibit 5 hereto).
F O L E Y & L A R D N E R
A T T O R N E Y S A T L A W
CHICAGO FIRSTAR CENTER SAN DIEGO
JACKSONVILLE 777 EAST WISCONSIN AVENUE SAN FRANCISCO
LOS ANGELES MILWAUKEE, WISCONSIN 53202-5367 TALLAHASSEE
MADISON TELEPHONE (414) 271-2400 TAMPA
ORLANDO FACSIMILE (414) 297-4900 WASHINGTON, D.C.
SACRAMENTO WEST PALM BEACH
WRITER'S DIRECT LINE
December 17, 1996
Midwest Express Holdings, Inc.
6744 South Howell Avenue
Oak Creek, Wisconsin 53154
Ladies and Gentlemen:
We have acted as counsel for Midwest Express Holdings, Inc., a
Wisconsin corporation (the "Company"), in conjunction with the preparation
of a Form S-8 Registration Statement (the "Registration Statement") to be
filed by the Company with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act"), relating to
50,000 shares of the Company's common stock, $0.01 par value (the "Common
Stock"), and related Preferred Share Purchase Rights (the "Rights"), which
may be issued pursuant to the Astral Aviation, Inc. 401(k) Plan (the
"Plan"). The terms of the Rights are as set forth in that certain Rights
Agreement, dated as of February 14, 1996, as amended, by and between the
Company and Firstar Trust Company (the "Rights Agreement").
We have examined: (i) the Plan; (ii) the Registration
Statement; (iii) the Rights Agreement; (iv) the Company's Restated
Articles of Incorporation and Bylaws, as amended to date; (v) resolutions
of the Company's Board of Directors; and (vi) such other documents and
records as we have deemed necessary to enable us to render this Opinion.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation validly existing under the
laws of the State of Wisconsin.
2. It is presently contemplated that the shares of Common
Stock to be acquired by the Plan will be purchased either in the open
market or from private sources, but the Plan would also allow acquisitions
directly from the Company. To the extent the shares of Common Stock
acquired by the Plan constitute shares issued by and purchased directly
from the Company, if the Company's Board of Directors, in accordance with
applicable law, adopts resolutions approving the issuance and sale of such
shares of Common Stock to the Plan, then such shares of Common Stock, when
issued and paid for in the manner set forth in the Plan, will be validly
issued, fully paid and nonassessable and no personal liability will attach
to the ownership thereof, except with respect to wage claims of employees
of the Company for services performed not to exceed six (6) months service
in any one case, as provided in Section 180.0622(2)(b) of the Wisconsin
Business Corporation Law.
3. The Rights to be issued with the Common Stock when issued
pursuant to the terms of the Rights Agreement will be validly issued.
We consent to the use of this opinion as an Exhibit to the
Registration Statement. In giving our consent, we do not admit that we
are "experts" within the meaning of Section 11 of the Securities Act or
within the category of persons whose consent is required by Section 7 of
said Act.
Very truly yours,
FOLEY & LARDNER
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Midwest Express Holdings, Inc. on Form S-8 of our report
dated January 26, 1996 included and incorporated by reference in the
Annual Report on Form 10-K for the year ended December 31, 1995.
Deloitte & Touche LLP
Milwaukee, Wisconsin
December 13, 1996
