SEC Info - Midway Airlines Corp - IPO: ‘S-1/A’ on 11/20/97

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Midway Airlines Corp – IPO: ‘S-1/A’ on 11/20/97

As of: Thursday, 11/20/97 · Accession #: 1047469-97-5659 · File #: 333-37375

  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

11/20/97  Midway Airlines Corp              S-1/A                 34:5.8M                                   Merrill Corp/New/FA

Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: S-1/A       Pre-Effective Amendment to Registration Statement     12     80K 
                          (General Form)                                         
 9: EX-10.10    Material Contract                                    154    395K 
10: EX-10.11    Material Contract                                    202    469K 
11: EX-10.12    Material Contract                                    205    475K 
12: EX-10.13    Material Contract                                    211    493K 
13: EX-10.14    Material Contract                                    156    401K 
14: EX-10.15    Material Contract                                    106    322K 
15: EX-10.16    Material Contract                                    351    903K 
16: EX-10.17    Material Contract                                     64    184K 
17: EX-10.18    Material Contract                                     74    215K 
18: EX-10.19    Material Contract                                      4     22K 
19: EX-10.20    Material Contract                                     30     74K 
20: EX-10.21    Material Contract                                     26     59K 
21: EX-10.22    Material Contract                                    160    296K 
22: EX-10.23    Material Contract                                     62    218K 
23: EX-10.24    Material Contract                                     47    119K 
24: EX-10.25    Material Contract                                     17     60K 
25: EX-10.26    Material Contract                                     13     53K 
26: EX-10.28    Material Contract                                    169    365K 
27: EX-10.29    Material Contract                                      3     18K 
 2: EX-10.3     Material Contract                                    147    348K 
28: EX-10.30    Material Contract                                      3     18K 
29: EX-10.38    Material Contract                                     19     56K 
30: EX-10.39    Material Contract                                     13     34K 
 3: EX-10.4     Material Contract                                    190    433K 
31: EX-10.40    Material Contract                                     29     87K 
32: EX-10.41    Material Contract                                     18     74K 
33: EX-10.42    Material Contract                                     74    233K 
34: EX-10.48    Agreement Between Rolls-Royce Canada                  20     56K 
 4: EX-10.5     Material Contract                                    189    433K 
 5: EX-10.6     Material Contract                                    186    417K 
 6: EX-10.7     Material Contract                                    156    398K 
 7: EX-10.8     Material Contract                                    154    397K 
 8: EX-10.9     Material Contract                                    154    396K

S-1/A — Pre-Effective Amendment to Registration Statement (General Form)
Document Table of Contents

Page	(sequential)	\|	(alphabetic)	Top
			Alternative Formats (Word, et al.) Exhibits and Financial Statement Schedules Indemnification of Directors and Officers Other Expenses of Issuance and Distribution Recent Sales of Unregistered Securities Undertakings
1	1st Page - Filing Submission
3	Item 13. Other Expenses of Issuance and Distribution
"	Item 14. Indemnification of Directors and Officers
"	Item 15. Recent Sales of Unregistered Securities
4	Item 16. Exhibits and Financial Statement Schedules
8	Item 17. Undertakings

S-1/A 1st Page of 12 TOC ↑Top Previous Next ↓Bottom Just 1st
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 20, 1997

REGISTRATION NUMBER 333-37375
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------

AMENDMENT NO. 2 TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

------------------------

MIDWAY AIRLINES CORPORATION
(Exact name of registrant as specified in its charter)

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DELAWARE 4512 36-3915637
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification
incorporation or organization) Classification Code Number) No.)

------------------------

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:

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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

------------------------

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.

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S-1/A 2nd Page of 12 TOC 1st Previous Next ↓Bottom Just 2nd
EXPLANATORY NOTE

This Amendment No. 2 to the Registrant's 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.

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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:

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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
---------
---------

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

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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.

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AGGREGATE
AMOUNT OF
SECURITIES AGGREGATE
PURCHASER TYPE DATE ISSUED CONSIDERATION
-------------------------------- ---------------------------- ------------------ ---------- -------------

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)

------------------------

(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:

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NO. DESCRIPTION
--------- -------------------------------------------------------------------------------------------------------

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.

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NO. DESCRIPTION
--------- -------------------------------------------------------------------------------------------------------

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+ --Stock Option Plan.

10.2+ --Profit Sharing Plan.

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.

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NO. DESCRIPTION
--------- -------------------------------------------------------------------------------------------------------

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+ --Agreement between Rolls Royce Canada Limited and Midway dated as of September 30, 1997.

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.

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NO. DESCRIPTION
--------- -------------------------------------------------------------------------------------------------------

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.

------------------------

* Portions have been omitted pursuant to a request for confidential treatment.

** Previously filed.

+ To be filed by amendment.

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]

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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.

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SIGNATURES

Pursuant to the requirements of the Securities Act, Midway Airlines
Corporation has duly caused this Amendment No. 2 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 November 20, 1997.

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MIDWAY AIRLINES CORPORATION

By: /s/ JONATHAN S. WALLER
-----------------------------------------
Jonathan S. Waller
SENIOR VICE PRESIDENT

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 November 20, 1997
of the
Board,
President
and
Chief
Executive
Officer
(Principal
Executive
Officer)

*
------------------------------
Steven Westberg Senior November 20, 1997
Vice
President
and
Chief
Financial
Officer
(Principal
Financial
and
Accounting
Officer)

*
------------------------------
W. Greyson Quarles, Jr. Director November 20, 1997

*
------------------------------
Howard Wolf Director November 20, 1997

*
------------------------------
Gregory J. Robitaille Director November 20, 1997

*/s/ JONATHAN S. WALLER
------------------------------
Jonathan S. Waller
ATTORNEY-IN-FACT

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EXHIBIT INDEX