Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated as of August 19, 2003 (this
"Agreement"), is made by and among Midwest Express Holdings, Inc., a Wisconsin
corporation (the "Company"), with headquarters located at 0000 Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxxx, XX 00000, and the parties named on the signature pages hereto
(each of whom is hereinafter referred to as an "Initial Investor" and all of
whom collectively are hereinafter referred to as the "Initial Investors").
RECITALS:
A. In connection with that certain Participation Agreement and those
certain Agreements to Amend Operative Documents, each dated as of August 19,
2003 (collectively, the "Amendment Agreements"), by and among, as applicable,
the Company, Midwest Airlines, Inc., a Wisconsin corporation and a wholly-owned
subsidiary of the Company, Skyway Airlines, Inc., a Delaware corporation and a
wholly-owned subsidiary of Midwest Airlines, Inc., and the other parties named
in the Amendment Agreements, the Company has agreed to issue to the Initial
Investors warrants (the "Warrants") to purchase shares of the Company's common
stock, par value $.01 per share (the "Common Shares" and, together with any
associated preferred stock purchase rights ("Rights"), the "Securities").
B. To induce the Initial Investors to execute and deliver the Amendment
Agreements, the Company has agreed to provide certain registration rights under
the Securities Act of 1933, as amended (the "Securities Act"), with respect to
the Securities.
AGREEMENT:
In consideration of the premises and the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Company and the Initial Investors hereby agree as
follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms have the following meanings:
1.1. "Investors" means the Initial Investors and any of their permitted
transferees or assignees who receive or acquire Registrable Securities and agree
to become bound by the provisions of this Agreement in accordance with Article
IX, but in each case only for so long as such person holds Registrable
Securities or Warrants giving the person the right to acquire Registrable
Securities, except as otherwise provided in Article VI; provided that no such
person is registered as a broker or dealer under Section 15(a) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or a member of the
National Association of Securities Dealers, Inc.
1.2. The terms "register," "registered," and "registration" refer to a
registration effected by preparing and filing the Registration Statement in
compliance with the Securities Act and, in particular, pursuant to Rule 415
under the Securities Act and the declaration or ordering of effectiveness of
such Registration Statement by the United States Securities and Exchange
Commission (the "SEC").
1.3. "Registrable Securities" means (a) the Warrants; (b) the Common Shares
issued pursuant to the Warrants, but only if such Common Shares are issued upon
exercise of the Warrants by
the Initial Investors or Investors to whom the Warrants were sold or transferred
in a private transaction and not pursuant to the Registration Statement; (c) the
Common Shares issuable pursuant to the Warrants, but only if such Common Shares
are issuable upon exercise of the Warrants by Investors other than the Initial
Investors or Investors to whom the Warrants were sold or transferred in a
private transaction and not pursuant to the Registration Statement; (d) any
shares of capital stock issued or issuable from time to time (with any
adjustments) in exchange for or otherwise with respect to Common Shares
referenced in clause (b) and (c); and (e) any Rights associated with the Common
Shares, except that any such securities will cease to be Registrable Securities
at such time as they have been sold under the Registration Statement or pursuant
to Rule 144 or at such time as they are eligible to be sold pursuant to Rule
144(k).
1.4. "Registration Period" means the period ending on the earlier to occur
of (i) August 19, 2013; or (ii) the date on which no Registrable Securities
remain outstanding or issuable.
1.5. "Registration Statement" means the Registration Statement(s) of the
Company filed with the SEC under the Securities Act in accordance with Section
2.1, including all amendments (pre-effective or post-effective) and supplements
thereto and all documents incorporated by reference therein.
1.6. "Rule 415" means Rule 415 under the Securities Act, or any successor
rule providing for offering securities on a continuous basis, and applicable
rules and regulations thereunder.
1.7. "Rule 144" means Rule 144 under the Securities Act, or any successor
rule, and applicable rules and regulations thereunder.
ARTICLE II
REGISTRATION
2.1. Mandatory Registration. The Company will prepare and file with the SEC
a Registration Statement registering all of the Registrable Securities for sale
or resale, as the case may be (including without limitation all Common Shares
issuable pursuant to the Warrants as of date of filing, except to the extent
such Common Shares have ceased to be Registrable Securities at the date of
filing and subject to Section 4.1), and in the case of resale, in accordance
with the intended methods of resale or distribution described by the Investors
in accordance with Section 4.1. The Company will file the Registration Statement
on Form S-3, if available, or on such form as is then available to effect a
registration of the Registrable Securities; provided, that if the Registration
Statement is filed on Form S-1 or Form S-2 to register the Registrable
Securities (because the Company does not qualify to use Form S-2 and/or Form
S-3) and the Company subsequently qualifies to use Form S-2 or Form S-3, as the
case may be, then the Company may take such actions as it deems appropriate to
convert the Registration Statement to a Registration Statement on Form S-2 or
Form S-3, as the case may be.
2.2. Effectiveness of the Registration Statement. The Company will use its
reasonable best efforts to cause the Registration Statement contemplated by the
previous Section to be filed as soon as practicable but in no event later than
December 19, 2003 (subject to extension by up to 12 business days by operation
of Section 4.1) (the "Required Filing Date"). The Company will use its
reasonable best efforts to cause the Registration Statement to be declared
effective by the SEC as soon as reasonably practicable following the filing
thereof, but in any event not later than January 20, 2004 (subject to extension
to the extent the Required Filing Date was delayed by operation of Section 4.1)
(the "Required Effective Date"). The Company's reasonable best efforts will
include, but are not to be limited to, promptly responding in good faith to all
comments received from the staff of the SEC. If the Company receives
notification from the SEC that the Registration Statement will receive no action
or review from the SEC, then the Company will request that the Registration
Statement become effective within five business days after such SEC
notification.
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2.3. Liquidated Damages.
(a) If the Registration Statement has not been filed with the SEC by
the Required Filing Date, then the Company will make a payment to each
Investor (the "Late Filing Payment"). The Late Filing Payment for each
Investor will be in an amount equal to (i) 1.35% of the then remaining
aggregate exercise price of the Warrant or Warrants that are Registrable
Securities or represent the right to acquire Registrable Securities and are
held by the Investor on the Required Filing Date plus (ii) 1.35% of the
exercise price paid for Common Shares that are Registrable Securities, were
issued to the Investor upon exercise of the Investor's Warrant or Warrants
and are held by such Investor on the Required Filing Date. Subject to
subsection (f), the Company will make the Late Filing Payment to each
Investor by check (or by wire transfer if the payment exceeds $10,000 in
amount and the Company has wire transfer instructions from the Investor)
within ten business days following the Required Filing Date.
(b) If the Registration Statement has not been declared effective by
the Required Effective Date, then the Company will make a payment to each
Investor (the "Late Effective Payment"). The Late Effective Payment for
each Investor will be an amount equal to (i) 0.34% of the then remaining
aggregate exercise price of the Warrant or Warrants that are Registrable
Securities or represent the right to acquire Registrable Securities and are
held by the Investor on the Required Effective Date plus (ii) 0.34% of the
exercise price paid for Common Shares that are Registrable Securities, were
issued to the Investor upon exercise of the Investor's Warrant or Warrants
and are held by such Investor on the Required Effective Date. Subject to
subsection (f), the Company will make the Late Effective Payment to each
Investor by check (or by wire transfer if the payment exceeds $10,000 in
amount and the Company has wire transfer instructions from the Investor)
within ten business days following the Required Effective Date.
(c) If the Registration Statement has not been declared effective by
the first monthly anniversary of the Required Effective Date, then the
Company will make one or more payments to each Investor under this
subsection (c) (each, a "Continuing Late Effective Payment"). The
Continuing Late Effective Payment for each Investor for each calendar month
after the first monthly anniversary of the Required Effective Date that the
Registration Statement has not been declared effective will be an amount
equal to (i) 0.34% of the then remaining aggregate exercise price of the
Warrant or Warrants that are Registrable Securities or represent the right
to acquire Registrable Securities and are held by the Investor on the
respective last calendar day of the period to which the Continuing Late
Effective Payment in question relates plus (ii) 0.34% of the exercise price
paid for Common Shares that are Registrable Securities, were issued to the
Investor upon exercise of the Investor's Warrant or Warrants and are held
by the Investor on the respective last calendar day of the period to which
the Continuing Late Effectiveness Payment in question relates.
(d) If at any time after the Registration Statement has been declared
effective sales thereunder during the Registration Period cannot be made by
reason of the operation of Section 3.4(c) for a period of time that exceeds
the limitations set forth in Section 3.4(c), then the Company will make a
payment to each Investor (each, an "Excess Suspension Payment"). The Excess
Suspension Payment for each Investor for each calendar month that sales
cannot be made will be an amount equal to (i) 0.34% of the then remaining
aggregate exercise price of the Warrant or Warrants that are Registrable
Securities or represent the right to acquire Registrable Securities and are
held by the Investor on the respective last calendar day of the period to
which the Excess Suspension Payment in question relates plus (ii) 0.34% of
the exercise price paid for Common Shares that are Registrable Securities,
were issued to the Investor upon exercise of the Investor's Warrant or
Warrants and are held by the Investor on the respective last calendar day
of the period to which the Excess Suspension Payment in question relates.
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(e) The Continuing Late Effectiveness Payment and the Excess
Suspension Payment are referred to herein collectively as the "Payments."
The Payments will be prorated on a daily basis for periods less than a
calendar month. Subject to subsection (f), the Company will make the
Payments to each Investor by check (or by wire transfer if the payment
exceeds $10,000 in amount and the Company has wire transfer instructions
from the Investor) within ten business days following the end of each
calendar month as to which payment hereunder is due.
(f) Upon the reasonable request of the Company in writing, an Investor
shall promptly deliver to the Company in writing information regarding the
Investor's Warrants and Common Shares (together with reasonable supporting
documentation) to enable the Company to calculate the amount of any payment
due under this Section 2.3. Until the Investor has responded to such a
reasonable request, the Company may withhold any payment due under this
Section 2.3 until the fourth business day after the Investor delivers such
information.
(g) The Investors may make a claim for additional damages as a remedy
for the Company's failure to comply with the timelines relating to the
Registration Statement set forth in this Agreement, but acknowledgement of
such right in this Agreement shall not constitute an admission by the
Company that any such damages exist or may exist. Notwithstanding the
foregoing, if the Company has used its reasonable best efforts to avoid
circumstances as a result of which the Registration Statement is not filed
by the Required Filing Date, the Registration Statement has not been
declared effective by the Required Effective Date or sales cannot be made
under the Registration Statement during the Registration Period, then the
damages described above shall be the Investors' sole and exclusive remedy
for damages arising out of such circumstances. Nothing contained in the
preceding sentence shall be read to limit the ability of the Investors to
seek specific performance of this Agreement.
2.4. Piggyback Registrations.
(a) At any time prior to the expiration of the Registration Period, if
the Registration Statement has not yet been declared effective in
accordance with Section 2.1 and the Company decides to register any of its
Common Shares for its own account or for the account of others, then the
Company will promptly give the Investors written notice thereof and will
use its best efforts to include in such registration all or any part of the
Registrable Securities requested by such Investors to be included therein.
This requirement does not apply to any registration statement related to
the New Financing (as defined in the Warrant), Company registrations on
Form S-4 or S-8 or their equivalents (relating to equity securities to be
issued in connection with an acquisition of any entity or business or
equity securities issuable in connection with stock option or other
employee benefit or director plans) or to registration statements that
would otherwise not permit the registration of resales of previously issued
securities. Each Investor must give its request for registration under this
section to the Company in writing within 15 calendar days after receipt
from the Company of notice of such pending registration. If the
registration for which the Company gives notice is a public offering
involving an underwriting, then the Company will so advise the Investors as
part of the above-described written notice. In that event, if the managing
underwriter(s) of the public offering impose a limitation on the number of
Common Shares that may be included in the Registration Statement because,
in such underwriter(s)' judgment, such limitation would be necessary to
effect an orderly public distribution, then the Company shall include in
such registration (i) first, the securities desired to be sold pursuant to
such Registration Statement by the shareholder or shareholders that are
requiring the Company pursuant to a contractual registration right to file
such Registration Statement, if any, (ii) second, the Registrable
Securities requested by any of the Investors to be included in such
offering, pro rata among the holders of such Registrable Securities on the
basis
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of the number of shares requested to be included by each such holder and
(iii) third, the securities the Company proposes to sell.
(b) No right to registration of Registrable Securities under this
Section 2.4 limits in any way the registration required under Section 2.1
above. The obligations of the Company under this Section 2.4 expire upon
the earlier of (i) the effectiveness of the Registration Statement filed
pursuant to Section 2.1 above with respect to Registrable Securities or
(ii) expiration of the Registration Period.
2.5. Force Majeure. The Company shall not be deemed in breach of its
commitments under Article II, and no Late Payment shall be due in respect of any
period, to the extent that the Company is unable to fulfill its obligations
hereunder in a timely fashion because the SEC, the New York Stock Exchange
("NYSE") and/or the Nasdaq Stock Market are closed or operating on a limited
basis as a result of the occurrence of a Force Majeure. As used herein, "Force
Majeure" means war or armed hostilities or other national or international
calamity, or one or more acts of terrorism.
ARTICLE III
ADDITIONAL OBLIGATIONS OF THE COMPANY
3.1. Continued Effectiveness of Registration Statement. Subject to the
limitations set forth in Section 3.4, the Company will use its best efforts to
keep the Registration Statement covering the Registrable Securities effective
under Rule 415 at all times during the Registration Period.
3.2. Accuracy of Registration Statement. Assuming the accuracy of
information furnished by or on behalf of the Investors, the Registration
Statement (including any amendments or supplements thereto and prospectuses
contained therein) covering Registrable Securities will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein, or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading. The Company will prepare
and file with the SEC as soon as practicable such amendments (including
post-effective amendments) and supplements to the Registration Statement and the
prospectus used in connection with the Registration Statement as may be
necessary to permit sales pursuant to the Registration Statement at all times
during the Registration Period (but subject to Section 3.4) and, during such
period, will comply with the provisions of the Securities Act with respect to
the sale or resale of all Registrable Securities covered by the Registration
Statement until the termination of the Registration Period. The Company may take
reasonable steps to aggregate changes to the Registration Statement for purposes
of filing amendments to the Registration Statement or supplements to the
prospectus related thereto so as to reduce the need for multiple amendments or
supplements, and the Company shall not be required to file more than one
post-effective amendment or supplement to reflect changes relating to Investors
in any twenty calendar-day period.
3.3. Furnishing Documentation. The Company will furnish to each Investor
whose Registrable Securities are then included in the Registration Statement,
and Investors' Counsel (as herein defined), if any, (a) promptly after each
document is filed with the SEC, one copy of the Registration Statement filed
pursuant to this Agreement and any amendments thereto, each preliminary
prospectus (if any) and final prospectus and each amendment or supplement
thereto; and (b) a number of copies of a prospectus, including a preliminary
prospectus (if any), and all amendments and supplements thereto, and such other
documents as the Investor may reasonably request to facilitate the disposition
of the Registrable Securities owned by the Investor. The Company will notify
each Investor whose Registrable Securities are then included in the Registration
Statement of the filing and the effectiveness of the Registration Statement and
any post-effective amendment on the date of filing or effectiveness of the
Registration Statement or any post-effective amendment, as applicable.
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3.4. Suspension of Sale and Resale Rights.
(a) During the Registration Period, the Company will notify by
facsimile each Investor who holds Registrable Securities that are then
included in the Registration Statement of the happening of any event of
which the Company has knowledge as a result of which the prospectus
included in the Registration Statement as then in effect includes an untrue
statement of a material fact or omits to state a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading (each an
"Event"). The Company will promptly make such notification after the
Company becomes aware of the Event (but in no event will the Company
disclose to any Investor any of the facts or circumstances regarding the
Event). Each Investor will hold in confidence and will not make any
disclosure of any Event and any related information disclosed by the
Company unless (i) the release of such information is ordered pursuant to a
subpoena or other order from a court or government body of competent
jurisdiction, (ii) the information has been made generally available to the
public other than by disclosure in violation of this or any other agreement
(to the knowledge of the relevant Investor), (iii) the information was
developed independently by an Investor without breach of this Agreement,
(iv) the information was known to the Investor before receipt of such
information from the Company, (v) the information was disclosed to the
Investor by a third party not under an obligation of confidentiality or
(vi) the period during which the Company may suspend use of the
Registration Statement under Section 3.4(c) has expired. However, an
Investor may make disclosure of an Event and/or any related information
disclosed by the Company to any attorney, adviser or other third party
retained by it that needs to know the information, as determined in good
faith by the Investor ("Investor Representative"), if the Investor advises
the Investor Representative of the confidentiality provisions of this
Section 3.4(a), but the Investor will be liable for any act or omission of
any of its Investor Representatives relative to such information as if the
act or omission was that of the Investor. Unless legally prohibited from so
doing, each Investor will, upon learning that disclosure of such
confidential information is sought in or by a court or governmental body of
competent jurisdiction or through other means, give prompt notice to the
Company and allow the Company, at the Company's expense, to undertake
appropriate action to prevent disclosure of, or to obtain a protective
order for, such confidential information.
(b) If the Registration Statement ceases to be effective or the
prospectus related thereto ceases to be usable at any time during the
Registration Period, including as a result of the occurrence of an Event
under Section 3.4(a), then the Company will promptly (and in any event
within 12 business days in the case of a post-effective amendment and
within four business days in the case of a supplement, in each case after
the Company becomes aware of the related circumstances) prepare a
post-effective amendment or supplement to the Registration Statement or the
prospectus to correct any untrue statement or omission or to otherwise
update and modify the Registration Statement and the prospectus as required
by applicable law and use its reasonable best efforts to cause any
post-effective amendment to the Registration Statement to be declared
effective by the SEC as soon as reasonably practicable following the filing
thereof. The Company will deliver a number of copies of such post-effective
amendment (in the form declared effective) or supplement to each Investor
as such Investor may reasonably request. Sales and resales of Registrable
Securities shall be suspended until the Company has filed such
post-effective amendment or supplement to the Registration Statement or
prospectus that cures such failure to be effective or useable and that is
itself, in the case of a post-effective amendment, declared effective. The
Company will notify Investors of an Event in accordance with Section
3.4(a), and the Company will notify each Investor who holds Registrable
Securities that are then included in the Registration Statement of the
existence of any other circumstances of which the Company has knowledge as
a result of which the Registration Statement ceases to be effective or
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the prospectus related thereto ceases to be usable. The Company will
promptly notify each Investor when the use of the Registration Statement
and prospectus may be resumed.
(c) Notwithstanding the obligations under Section 3.4(a) and (b) or
any provision of this Agreement, if in the good faith judgment of the
Company, following consultation with legal counsel, it would be detrimental
to the Company and its shareholders for sales and resales of Registrable
Securities to be made pursuant to the Registration Statement due to the
existence of a material development or potential material development
involving the Company that the Company would be obligated to disclose in
the Registration Statement, which disclosure would be premature or
otherwise inadvisable at such time or could have a Material Adverse Effect
(including premature disclosure of the anticipated filing of a
Company-initiated registration of any class of its equity securities), then
the Company will have the right to suspend the use of the Registration
Statement for a period of not more than 60 consecutive calendar days, and
no more than 90 calendar days in a calendar year, provided, however, that,
after deferring or suspending the use of the Registration Statement, the
Company may not again defer or suspend the use of the Registration
Statement until a period of 30 calendar days has elapsed after resumption
of the use of the Registration Statement. "Material Adverse Effect" means a
material adverse effect on the assets, liabilities, financial condition or
results of operation of the Company and its subsidiaries, taken as a whole.
If the Company suspends use of the Registration Statement under this
Section 3.4(c), then the Company will promptly give notice of the
suspension to all Investors whose securities are covered by the
Registration Statement (in no event will the Company disclose to any
Investor any of the facts or circumstances regarding the material event or
Company-initiated registration) and will promptly notify each such Investor
as soon as possible that the use of the Registration Statement may be
resumed.
(d) Subject to the Company's rights under this Section 3.4, during the
Registration Period, the Company will use its best efforts to prevent the
issuance of any stop order or other suspension of effectiveness of the
Registration Statement and, if such an order is issued, will use its best
efforts to obtain the withdrawal of such order at the earliest possible
time, and the Company will promptly notify each Investor that holds
Registrable Securities whose Registrable Securities are then included in
the Registration Statement of the issuance of such order and the resolution
thereof.
3.5. Review by the Investors. The Company will provide a single firm of
legal counsel, designated in writing by the Investors based on a determination
made in accordance with Section 11.12 (the "Investors' Counsel"), copies of the
Registration Statement and all amendments and supplements thereto (as well as
all SEC correspondence related to the Registration Statement and requests for
acceleration or effectiveness thereof) for review a reasonable period of time
prior to their filing with the SEC, and will not file any document in a form to
which such counsel reasonably objects within five business days after receipt
thereof, unless otherwise required by law in the opinion of the Company's
counsel. The sections of any such Registration Statement including information
with respect to the Investors, the Investors' beneficial ownership of securities
of the Company and the Investors' intended method of disposition of Registrable
Securities must conform to the information provided to the Company by each of
the Investors, so long as they comply with all applicable laws in the Company's
reasonable opinion. The Company further acknowledges and agrees that the use of
Investors' Counsel pursuant hereto shall not be deemed to create a presumption
that the Investors are in any way acting in concert with respect to the
transactions contemplated by this agreement or the Warrants.
3.6. Due Diligence; Confidentiality.
(a) During the Registration Period, the Company will make available,
upon reasonable advance notice during normal business hours, for inspection
by any Investor whose
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Registrable Securities are being sold pursuant to the Registration
Statement and any Investor Representative retained by any such Investor
(collectively, the "Inspectors"), all pertinent financial and other
records, pertinent corporate documents and properties of the Company
(collectively, the "Records") as are reasonably necessary to enable each
Inspector to exercise its due diligence responsibility in connection with
or related to the contemplated offering. The Company will cause its
officers, directors and employees to supply all information that any
Inspector may reasonably request for purposes of performing such due
diligence.
(b) Each Inspector will hold in confidence, use only in connection
with the contemplated offering and not make any disclosure (except to an
Investor) of all Records and other information that the Company reasonably
determines in good faith to be confidential, and of which determination the
Inspectors are so notified in writing, unless (i) the disclosure of such
Records is necessary to avoid or correct a misstatement or omission in the
Registration Statement, (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court or government body of
competent jurisdiction, (iii) the information in such Records has been made
generally available to the public other than by disclosure in violation of
this or any other agreement (to the knowledge of the relevant Inspector),
(iv) the Records or other information was developed independently by an
Inspector without breach of this Agreement, (v) the information was known
to the Inspector before receipt of such information from the Company, or
(vi) the information was disclosed to the Inspector by a third party not
under an obligation of confidentiality. However, an Inspector may make
disclosure of such Records and other information to any attorney, adviser
or other third party retained by it that needs to know the information, as
determined in good faith by the Inspector ("Inspector Representative"), if
the Inspector advises the Inspector Representative of the confidentiality
provisions of this Section 3.6(b), but the Inspector will be liable for any
act or omission of any of its Inspector Representatives relative to such
information as if the act or omission was that of the Inspector. Unless
legally prohibited from so doing, each Investor will, upon learning that
disclosure of Records containing confidential information is sought in or
by a court or governmental body of competent jurisdiction or through other
means, give prompt notice to the Company and allow the Company, at the
Company's expense, to undertake appropriate action to prevent disclosure
of, or to obtain a protective order for, the Records deemed confidential.
Nothing herein will be deemed to limit the Investor's ability to sell
Registrable Securities in a manner that is otherwise consistent with
applicable laws and regulations.
(c) The Company will hold in confidence, and will not make any
disclosure of, information concerning an Investor provided to the Company
under this Agreement unless (i) the Company reasonably determines
disclosure of such information is necessary to comply with federal or state
securities laws, or any exchange listing or similar rules and regulations,
(ii) the disclosure of such information is necessary to avoid or correct a
misstatement or omission in the Registration Statement, (iii) the release
of such information is ordered pursuant to a subpoena or other order from a
court or governmental body of competent jurisdiction, (iv) such information
has been made generally available to the public other than by disclosure in
violation of this Agreement or any other agreement, (v) the information was
disclosed to the Company by a third party not under an obligation of
confidentiality or (vi) such Investor consents to the form and content of
any such disclosure. However, the Company may make disclosure of such
information to any attorney, adviser or other third party retained by it
that needs to know the information, as determined in good faith by the
Company ("Company Representative"), if the Company advises the Company
Representative of the confidentiality provisions of this Section 3.6(c),
but the Company will be liable for any act or omission of any Company
Representatives relative to such information as if the act or omission was
that of the Company. If the Company learns that disclosure of such
information concerning an Investor is sought in or by a court or
governmental body of competent jurisdiction or through other means, the
Company will (unless legally
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prohibited from so doing) give prompt notice to such Investor prior to
making such disclosure and allow such Investor, at its expense, to
undertake appropriate action to prevent disclosure of, or to obtain a
protective order for, such information.
3.7. Blue Sky Filings. The Company will use its reasonable best efforts to
file documents required of the Company for normal blue sky clearance in the
United States in states reasonably specified in writing by an Investor prior to
the effectiveness of the Registration Statement. Notwithstanding the foregoing,
the Company is not required, in connection with such obligations, to (a) qualify
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this Section 3.7, (b) subject itself to general taxation in any
such jurisdiction, (c) file a general consent to service of process in any such
jurisdiction, (d) provide any undertakings that cause material expense or burden
to the Company, or (e) make any change in its charter or bylaws, which in each
case the Company determines to be contrary to the best interests of the Company
and its shareholders.
3.8. Listing. During the Registration Period, the Company shall use its
reasonable best efforts to maintain the listing of all of the Registrable
Securities (other than the Warrants) on the principal securities exchange or
market or trading system, if any, on which Common Shares are then listed or
traded.
3.9. Share Certificates. The Company will cooperate in good faith with the
Investors who hold Registrable Securities being sold to facilitate the timely
preparation and delivery of certificates (not bearing any restrictive legends)
representing Registrable Securities to be offered pursuant to the Registration
Statement and will enable such certificates to be in such denominations or
amounts and registered in such names as the Investors may reasonably request.
3.10. Plan of Distribution. At the request of the Investors holding a
majority in interest of the Registrable Securities registered pursuant to the
Registration Statement under Section 2.1 (for purposes of such calculation,
Common Shares issuable upon exercise of any Warrant that is among the
Registrable Securities shall be treated as outstanding and owned by the holder
of such Warrant), the Company will promptly prepare and file with the SEC such
amendments (including post-effective amendments) and supplements to the
Registration Statement, and the prospectus used in connection with the
Registration Statement, as may be necessary to change the plan of distribution
set forth in such Registration Statement.
3.11. Securities Laws Compliance. During the Registration Period, the
Company will comply with all applicable laws related to the Registration
Statement relating to the sale of Registrable Securities and with all applicable
rules and regulations of governmental authorities in connection therewith
(including, without limitation, the Securities Act, the Exchange Act and the
rules and regulations promulgated by the SEC).
3.12. Further Assurances. The Company will take all other reasonable
actions as any Investor may reasonably request to expedite and facilitate
disposition by such Investor of the Registrable Securities pursuant to the
Registration Statement.
ARTICLE IV
OBLIGATIONS OF THE INVESTORS
4.1. Investor Information. As a condition to the obligations of the Company
to complete any registration pursuant to this Agreement with respect to the
Registrable Securities of each Investor, such Investor will furnish to the
Company such information regarding itself, the Registrable Securities held by it
and the intended methods of disposition of the Registrable Securities held by it
as is reasonably required by the Company to effect the registration of the
Registrable Securities. At least twenty business
9
days prior to the first anticipated filing date of the Registration Statement,
the Company will notify each Investor of the information the Company requires
from that Investor. If the Company has not received the requested information
from an Investor by the third business day prior to the anticipated filing date
specified in the notice, then the Company shall resend notice to the Investors
who have not responded and may file the Registration Statement 12 business days
thereafter without including Registrable Securities of such Investors who have
not responded by the tenth business day thereafter. However, for any such
Investor who subsequently responds, the Company will use its reasonable best
efforts to include Registrable Securities of such Investor in the Registration
Statement by means of a pre-effective or post-effective amendment to the
Registration Statement to the extent the Company is able to do so without
subjecting the Company to material expense or burden.
4.2. Further Assurances. Each Investor will cooperate with the Company, as
reasonably requested by the Company, in connection with the preparation and
filing of the Registration Statement hereunder, unless such Investor has
notified the Company in writing of such Investor's irrevocable election to
exclude all of such Investor's Registrable Securities from the Registration
Statement.
4.3. Suspension of Sales. Upon receipt of any notice from the Company under
Section 3.4, each Investor will immediately discontinue disposition of
Registrable Securities pursuant to the Registration Statement covering such
Registrable Securities until (i) it receives copies of a supplemented or amended
prospectus contemplated by Section 3.4(a) and (b) or (ii) the Company advises
the Investor that a suspension of sales under Section 3.4(c) has terminated. If
so directed by the Company, each Investor will deliver to the Company (at the
expense of the Company) or destroy all copies in the Investor's possession
(other than a limited number of file copies) of the prospectus covering such
Registrable Securities that is current at the time of receipt of such notice.
ARTICLE V
EXPENSES OF REGISTRATION
During the Registration Period, in connection with registrations or
filings, including post-effective amendments and supplements, pursuant to
Articles II and III, the Company will bear (i) all reasonable expenses (other
than underwriting discounts and commissions, and transfer taxes, if any)
incurred in connection with filings, including post-effective amendments and
supplements, pursuant to Articles II and III of this Agreement, including,
without limitation, all registration, listing fees, qualifications and other
fees and expenses of complying with blue sky laws, printers and accounting fees;
(ii) the fees and disbursements of legal counsel for the Company; and (iii) the
reasonable fees and disbursements of Investors' Counsel (not to exceed $10,000).
ARTICLE VI
INDEMNIFICATION
In the event that any Registrable Securities are included in the
Registration Statement under this Agreement:
6.1. Indemnification of the Investors. To the extent permitted by law, the
Company will indemnify and hold harmless each Investor (including for purposes
of this Article VI any person who was an Investor), any underwriter (as defined
in the Securities Act) for the Investors, any directors or officers of such
Investor and any person who controls such Investor within the meaning of the
Securities Act or the Exchange Act or acts as such Investor's investment advisor
(each, an "Investor Indemnified Person") against any losses, claims, damages,
expenses or liabilities (joint or several) (collectively, and together with
actions, proceedings or inquiries by any regulatory or self-regulatory
organization, whether commenced or threatened in respect thereof, "Claims") to
which any of them become subject under the
10
Securities Act, the Exchange Act or otherwise, insofar as such Claims arise out
of or are based upon any of the following statements, omissions or violations in
the Registration Statement filed pursuant to this Agreement, any post-effective
amendment thereof or any prospectus included therein: (a) any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or any post-effective amendment thereof or any final prospectus (as
amended or supplemented, if the Company files any amendment or supplement
thereto with the SEC) included therein or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading or (b) any violation or alleged violation by the Company of
the Securities Act, the Exchange Act or any other law related to the
Registration Statement, including without limitation any state securities law or
any rule or regulation thereunder (the matters in the foregoing clauses (a) and
(b) being, collectively, "Violations"). Subject to the restrictions set forth in
Section 6.3 with respect to the number of legal counsel, the Company will
reimburse the Investors and each such underwriter or controlling person and each
such other Investor Indemnified Person, promptly as such expenses are incurred
and are due and payable, for any reasonable legal fees or other reasonable
expenses incurred by them in connection with investigating or defending any
Claim. Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this Section 6.1: (i) does not apply to
Claims arising out of or based upon a Violation that occurs in reliance upon and
in conformity with information furnished in writing to the Company by or on
behalf of such Investor or its related Investor Indemnified Persons expressly
for use in connection with the preparation of the Registration Statement or any
such amendment thereof or supplement thereto, if such prospectus was timely made
available by the Company pursuant to Section 3.3; (ii) does not apply to a Claim
arising out of or based on any failure by such Investor or its related Investor
Indemnified Persons to comply with prospectus delivery requirements (or the
Securities Act, the Exchange Act or any other law or legal requirement
applicable to them) or any covenant or agreement contained in the Amendment
Agreements, the Warrants or this Agreement with respect to sales under the
Registration Statement; (iii) does not apply to a Claim arising from an offer or
sale of Registrable Securities occurring during a period in which sales are
suspended in accordance with Section 3.4; and (iv) does not apply to amounts
paid in settlement of any Claim if such settlement is made without the prior
written consent of the Company, which consent will not be unreasonably withheld
or delayed. This indemnity obligation will remain in full force and effect
regardless of any investigation made by or on behalf of the Investor Indemnified
Persons and will survive the transfer of Registrable Securities by Investors
under Article IX.
6.2. Indemnification of the Company and Certain Others. In connection with
the Registration Statement in which an Investor is participating, each such
Investor will indemnify and hold harmless, severally and not jointly, to the
same extent and in the same manner set forth in Section 6.1 above, the Company,
each of its directors, each of its officers who signs the Registration
Statement, each person, if any, who controls the Company within the meaning of
the Securities Act or the Exchange Act, and any other Investor selling
securities pursuant to the Registration Statement and any of its directors and
officers and any person who controls such Investor within the meaning of the
Securities Act or the Exchange Act (each, an "Company Indemnified Person")
against any Claim to which any of them may become subject under the Securities
Act, the Exchange Act or otherwise, insofar as such Claim arises out of or is
based upon any of the following: (a) any matter of the type referred to clause
(a) in Section 6.1 above in each case to the extent (and only to the extent)
that such violation occurs in reliance upon and in conformity with written
information furnished to the Company by such Investor expressly for use in
connection with such Registration Statement or (b) any failure by such Investor
to comply with prospectus delivery requirements (or the Securities Act, the
Exchange Act or any other law or legal requirement applicable to sales under the
Registration Statement) or any covenant or agreement contained in the Amendment
Agreements, the Warrants or this Agreement with respect to sales under the
Registration Statement. Subject to the restrictions set forth in Section 6.3,
such Investor will promptly reimburse any legal or other expenses, promptly as
such expenses are incurred and due and payable, reasonably incurred by any
Company Indemnified Person in connection with investigating or defending any
such Claim. However, the indemnity agreement contained in this Section 6.2 does
not apply to
11
amounts paid in settlement of any Claim if such settlement is effected without
the prior written consent of such Investor, which consent will not be
unreasonably withheld, and no Investor will be liable under this Agreement
(including this Section 6.2 and Article VII) for the amount of any Claim that
exceeds the net proceeds actually received by such Investor as a result of the
sale of such Investor's Registrable Securities or the Common Shares acquired
upon exercise of any such Registrable Securities. This indemnity will remain in
full force and effect regardless of any investigation made by or on behalf of an
Indemnified Party and will survive the transfer of Registrable Securities by
Investors under Article IX.
6.3. Notification and Other Indemnification Procedures. Promptly after
receipt by an Investor Indemnified Person or Company Indemnified Person, as the
case may be ("Indemnified Person"), under this Article VI of notice of the
commencement of any action (including any governmental action), such Indemnified
Person will, if a Claim in respect thereof is to be made against any
indemnifying party under this Article VI, deliver to the indemnifying party a
written notice of the commencement thereof. The indemnifying party may
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly given notice, assume control of the
defense thereof with counsel mutually and reasonably satisfactory to the
indemnifying parties and the Indemnified Person. If the indemnifying party
assumes the defense by notice to the Indemnified Person, then the indemnifying
party shall not be responsible for any legal or other expenses subsequently
incurred by the Indemnified Person in connection with the defense thereof,
except as expressly provided herein, and the indemnifying party will diligently
pursue such defense. If, in the reasonable opinion of an Indemnified Person, the
representation by such counsel of the Indemnified Person and the indemnifying
party would be inappropriate due to actual or potential conflicts of interest
between the Indemnified Person and any other party represented by such counsel
in such proceeding or the actual or potential defendants in, or targets of, any
such action including the Indemnified Person and such Indemnified Person
reasonably determines that there may be legal defenses available to such
Indemnified Person that are different from or in addition to those available to
the indemnifying party, then the Indemnified Person is entitled to assume such
defense and may retain its own counsel, with the reasonable fees and expenses to
be paid by the indemnifying party (subject to the restrictions on settlement
under Section 6.1 or 6.2, as applicable). However, in such case, or if the
indemnifying party elects not to control the defense, the indemnifying party
will pay for only one separate legal counsel for the Indemnified Persons
collectively, and where the Indemnified Persons are the Investors, such legal
counsel will be selected through a determination in accordance with Section
11.12. The failure to deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action does not relieve an
indemnifying party of any liability to an Indemnified Person under this Article
VI, except to the extent that the indemnifying party is prejudiced in its
ability to defend such action. The indemnification required by this Article VI
will be made by periodic payments of the amount thereof during the course of the
investigation or defense, as such expense, loss, damage or liability is incurred
and is due and payable.
ARTICLE VII
CONTRIBUTION
To the extent that any indemnification provided for herein is prohibited or
limited by law, the indemnifying party will contribute the amount paid or
payable by the Indemnified Party as a result of such Claim in such proportion as
is appropriate to reflect not only the relative benefits received by the
Indemnified Party and the indemnifying party, but also the relative fault of the
Indemnified Party and the indemnifying party, as well as any other relevant
equitable considerations. The relative fault of the Company on the one hand and
the Investors on the other hand shall be determined by reference to, among other
things, whether any untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Investors and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. However, (a) no contribution will be made under
circumstances where the maker
12
would not have been liable for indemnification under the fault standards set
forth in Article VI, (b) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation and (c) no Investor will be liable under this Agreement
(including this Article VII) for the amount of any Claim that exceeds the net
proceeds actually received by such Investor as a result of the sale of such
Investor's Registrable Securities or the Common Shares acquired upon exercise of
any such Registrable Securities.
ARTICLE VIII
EXCHANGE ACT REPORTING
To make available to the Investors the benefits of Rule 144 or any similar
rule or regulation of the SEC that may at any time permit the Investors to sell
securities of the Company to the public without registration, the Company will,
until the end of the Registration Period:
(a) Use its best efforts to file with the SEC in a timely manner, and make
and keep available, all reports and other documents required of the Company
under the Securities Act and the Exchange Act so long as the Company remains
subject to such requirements and the filing and availability of such reports and
other documents is required for the applicable provisions of Rule 144; and
(b) Furnish to each Investor, so long as such Investor holds Registrable
Securities, promptly upon request, (i) a written statement by the Company that
it has complied with the reporting requirements of the Securities Act and the
Exchange Act, (ii) if not available on the SEC's XXXXX system, a copy of the
most recent annual or quarterly report of the Company and such other reports and
documents filed by the Company with the SEC and (iii) such other information as
may be reasonably requested to permit the Investors to sell such securities
pursuant to Rule 144 without registration.
ARTICLE IX
ASSIGNMENT OF REGISTRATION RIGHTS
The rights of any Investor hereunder, including the right to have the
Company register Registrable Securities pursuant to this Agreement, shall be
assignable (in whole or in part) by such Investor to any permitted transferee or
assignee of the Registrable Securities, if (a) the Investor agrees in writing
with the transferee or assignee to assign such rights, and a copy of such
agreement is furnished to the Company within a reasonable time after such
assignment, (b) the Company is, within a reasonable time after such transfer or
assignment, furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being transferred or assigned, and (c) at or before the
time the Company received the written notice contemplated by clause (b) of this
sentence, the transferee or assignee agrees in writing with the Company to be
bound by all of the provisions contained herein. Delivery to the Company of a
completed and executed Form of Assignment in the form of Exhibit 3.1 to the
Warrants, if the transfer involves Warrants that are Registrable Securities,
and/or the Notice of Assignment substantially in the form of Exhibit B attached
hereto, if the transfer involves only Common Shares that are Registrable
Securities, shall satisfy the foregoing requirement. Any transferee or assignee
of an Investor under Article IX shall be deemed an "Investor" for all purposes
of this Agreement for so long as such person holds Registrable Securities, and
shall be entitled to all rights of, and subject to all obligations (including
indemnification obligations) of, an Investor hereunder.
13
ARTICLE X
AMENDMENT OF REGISTRATION RIGHTS
This Agreement may be amended and the obligations hereunder may be waived
(either generally or in a particular instance, and either retroactively or
prospectively) only with the written consent of the Company and of the Investors
who then hold a majority in interest of the Registrable Securities (but not
including any Investor who is not affected by such amendment or waiver). For
purposes of such calculation, Common Shares issuable upon exercise of any
Warrant that is among the Registrable Securities shall be treated as outstanding
and owned by the holder of such Warrant. Any amendment or waiver effected in
accordance with this Article X is binding upon each Investor and the Company.
Notwithstanding the foregoing, no amendment or waiver will retroactively affect
any Investor without its consent, or will prospectively adversely affect any
former Investor who no longer owns any Registrable Securities without its
consent.
ARTICLE XI
MISCELLANEOUS
11.1. Conflicting Instructions. A person or entity is deemed to be a holder
of Registrable Securities whenever such person or entity owns of record such
Registrable Securities. If the Company receives conflicting instructions,
notices or elections from two or more persons or entities with respect to the
same Registrable Securities, the Company will act upon the basis of
instructions, notice or election received from the registered owner of such
Registrable Securities.
11.2. Notices. Except as set forth in Sections 3.3 and 3.4, all
communications or notices required under this Agreement shall be deemed to have
been given on the date of hand delivery or three (3) business days after mailing
via certified or registered U.S. mail, return receipt requested, proper postage
prepaid and properly addressed as follows (unless and until either party advises
the other in writing of a change in such address in accordance with this Section
11.2):
(a) If to an Investor, to the address set forth on Exhibit A.
(b) If to the Company, to the address set forth below:
Midwest Express Holdings, Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxx 00000
Attention: President
Information regarding the Initial Investors is set forth on Exhibit A. The
Company shall update Exhibit A as necessary to add the information of any
permitted transferee or assignee of an Investor who receives or acquires
Registrable Securities and agrees to become bound by the provisions of this
Agreement in accordance with Article IX and to supplement or update the
information contained on Exhibit A to reflect revised information regarding an
Investor of which the Company receives proper notice.
11.3. Waiver. Failure of any party to exercise any right or remedy under
this Agreement or otherwise, or delay by a party in exercising such right or
remedy, does not operate as a waiver thereof.
11.4. Governing Law; Venue; Waiver of Jury Trial. This Agreement, including
the validity hereof and the rights and obligations of the Company and of the
Investors and all amendments
14
and supplements hereto and all waivers and consents hereunder, shall be
construed in accordance with and governed by the internal laws of New York
(except as it relates to corporate law involving the Company, in which case it
shall be governed by the internal laws of the state of incorporation of the
Company) without giving effect to any choice of law or conflicts of law
provision or rule that would cause the application of the internal laws of any
other jurisdiction.
Notwithstanding anything to the contrary in this Agreement or any other
agreement between any of the parties hereto prior to the date hereof, each of
the parties hereto, to the extent it may do so under applicable law, for
purposes hereof, hereby (i) irrevocably submits itself to the non-exclusive
jurisdiction of the courts of the State of New York sitting in the City of New
York, Borough of Manhattan, and to the non-exclusive jurisdiction of the U.S.
District Court for the Southern District of New York, for the purposes of any
suit, action or other proceeding arising out of this Agreement, the subject
matter hereof or any of the transactions contemplated hereby brought by any
party or parties hereto, or their successors or any permitted and registered
assign and (ii) waives, and agrees not to assert, by way of motion, as a
defense, or otherwise, in any such suit, action or proceeding, that the suit,
action or proceeding is brought in an inconvenient forum, that the venue of the
suit, action or proceeding is improper or that this Agreement or the subject
matter hereof or any of the transactions contemplated hereby may not be enforced
in or by such courts; provided that nothing in this paragraph shall be construed
as a waiver by any party of any right to seek to remove any such suit, action or
proceeding from a state court to a federal court or from a federal court to a
state court.
EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE RIGHT TO TRIAL BY JURY IN ANY
LEGAL OR EQUITABLE ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY OR THE SUBJECT
MATTER OF ANY OF THE FOREGOING.
11.5. Severability. If any provision of this Agreement is invalid or
unenforceable under any applicable statute or rule of law, then such provision
will be deemed modified in order to conform to such statute or rule of law. Any
provision hereof that may prove invalid or unenforceable under any law will not
affect the validity or enforceability of any other provision hereof.
11.6. Entire Agreement. This Agreement, the Warrants and the Amendment
Agreements (including all schedules and exhibits thereto) constitute the entire
agreement among the parties hereto with respect to the subject matter hereof and
thereof. There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein or therein. This Agreement supersedes
all prior agreements and understandings among the parties hereto with respect to
the subject matter hereof.
11.7. Successors and Assigns. Subject to the requirements of Article IX,
this Agreement inures to the benefit of and is binding upon the successors and
assigns of each of the parties hereto.
11.8. Use of Pronouns. All pronouns refer to the masculine, feminine or
neuter, singular or plural, as the context may require.
11.9. Headings. The headings of this Agreement are for convenience of
reference only, are not part of this Agreement and do not affect its
interpretation.
11.10. Counterparts. This Agreement may be executed in two or more
counterparts, each of which is deemed an original but all of which constitute
one and the same agreement. This
15
Agreement, once executed by a party, may be delivered to the other party hereto
by facsimile transmission, and facsimile signatures are binding on the parties
hereto.
11.11. Further Assurances. Each party will do and perform, or cause to be
done and performed, all such further acts and things, and will execute and
deliver all other agreements, certificates, instruments and documents, as
another party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
11.12. Consents. All consents and other determinations to be made by the
Investors pursuant to this Agreement will be made by the Investors holding a
majority in interest of the Registrable Securities (for purposes of such
calculation, Common Shares issuable upon exercise of any Warrant that are among
the Registrable Securities shall be treated as outstanding and owned by the
holder of such Warrant).
11.13. No Strict Construction. The language used in this Agreement is
deemed to be the language chosen by the parties to express their mutual intent,
and no rules of strict construction will be applied against any party.
[Signature pages follow]
16
IN WITNESS WHEREOF, the undersigned Investors and the Company have caused
this Agreement to be duly executed as of the date first above written.
COMPANY:
MIDWEST EXPRESS HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and
Chief Financial Officer
[SIGNATURES CONTINUE ON THE FOLLOWING PAGES]
Registration Rights Agreement Signature Page
INVESTORS:
BANC OF AMERICA LEASING & CAPITAL, LLC
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
-------------------------------------
Title: Vice President
------------------------------------
BANC ONE LEASING CORPORATION
By: /s/ Xxxxx X. Xxxx
---------------------------------------
Name: Xxxxx X. Xxxx
-------------------------------------
Title: Vice President
------------------------------------
THE FIFTH THIRD LEASING COMPANY
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxx
-------------------------------------
Title: Assistant Vice President
------------------------------------
INFORMATION LEASING CORPORATION
By: /s/ Xxx X. Xxxx, III
---------------------------------------
Name: Xxx X. Xxxx, III
-------------------------------------
Title: Vice President
------------------------------------
XXXXXXXX-XXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------------------
Title: Vice President and Treasurer
------------------------------------
KREDITANSTALT FUR WIEDERAUFBAU
By: /s/ Xxxxxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxxxxxx Xxxxxxx
-------------------------------------
Title: First Vice President
------------------------------------
By: /s/ Xxxxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxxxx Xxxxxx
-------------------------------------
Title: Vice President
------------------------------------
M & I FIRST NATIONAL LEASING CORPORATION
By: /s/ Xxx Xxxxxxxx
---------------------------------------
Name: Xxx Xxxxxxxx
-------------------------------------
Title: President
------------------------------------
SIEMENS FINANCIAL SERVICES, INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
-------------------------------------
Title: Vice President
------------------------------------
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
-------------------------------------
Title: Vice President
------------------------------------
TRANSAMERICA AVIATION LLC
By: /s/ Xxxx X. Fate
---------------------------------------
Name: Xxxx X. Fate
-------------------------------------
Title: Executive Vice President
------------------------------------
U.S. BANCORP EQUIPMENT FINANCE, INC.
By: /s/ Xxxxx Xxxxx
---------------------------------------
Name: Xxxxx Xxxxx
-------------------------------------
Title: Senior Vice President
------------------------------------
XXXXX FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxxx
-------------------------------------
Title: Vice President
------------------------------------
EXHIBIT A
INFORMATION AS TO INVESTORS
BANC OF AMERICA LEASING & CAPITAL, LLC
000 Xxxxxxxxxx Xx., 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxx.xxxxxxx@xxxxxxxxxxxxx.xxx
BANC ONE LEASING CORPORATION
0000 Xxxxxxx Xxxxxxx, Xxxxx X0
Xxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxx_x_xxxx@xxxxxxx.xxx
KREDITANSTALT FUR WIEDERAUFBAU
BMa
Xxxxxxxxxxxxxxxxxxx - 0 - 0
00000 Xxxxxxxxx xx Xxxx
Xxxxxxx
Attn: Xxxxx Xxxxxxxx
Phone: x00.00.0000.0000
Fax: x00.00.0000.0000
Email: xxxxx.xxxxxxxx@xxx.xx
M & I FIRST NATIONAL LEASING CORPORATION
000 Xxxx Xxxxxxxxx Xxx.
Xxxxxxxxx, XX 00000
Attn: Xxx Xxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Email: xxx.xxxxxxxx@xxxxxx.xxx
INFORMATION LEASING CORPORATION
Xxx Xxxx Xxxxxx Xx.
Xxxxxxxxxx, XX 00000
Attn: Xxx X. Xxxx, III
Phone: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxx@xxxxxxxxxxxxx.xxx
SIEMENS FINANCIAL SERVICES, INC.
000 Xxxxxxxx Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Attn: V.P. Risk Management c/o Xxxx Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Email: xxxx.xxxxxxx@xxxxxxx.xxx
THE FIFTH THIRD LEASING COMPANY
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Email: xxxx.xxxxxx@00.xxx
TRANSAMERICA AVIATION LLC
Transamerica Aviation LLC
0000 Xxxxxxxx Xxxxx, Xxxxx 0000X
Xxxxxxx, XX 00000
Attn: Xxxx X. Fate EVP
Phone: (000) 000-0000
Fax: (000) 000-0000
U.S. BANCORP EQUIPMENT FINANCE, INC.
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxx Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Email: xxx.xxxxxxx@xxxxxx.xxx
XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION
000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Email: Xxxxx.X.Xxxxx@xxxxxxxxxx.xxx
XXXXXXXX-XXXXX CORPORATION
X.X. Xxx 000000
Xxxxxx, XX 00000-0000
Attn: Xxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
EXHIBIT B
REGISTRATION RIGHTS AGREEMENT
NOTICE OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned Investor under that certain
Registration Rights Agreement (the "Agreement"), dated August ___, 2003, by and
among Midwest Express Holdings, Inc., a Wisconsin corporation, and the parties
named on the signature pages thereto, hereby agrees to transfer unto
_______________________________ (the "Transferee"), whose address is
_________________________________________________________, all of the rights of
the undersigned under the Agreement with respect to _____ Common Shares (as
defined in the Agreement) that are Registerable Securities (as defined in the
Agreement) (the "Transferred Shares"). The Transferee hereby agrees to be a
party to the Agreement and acknowledges and agrees that it is an "Investor" as
defined in the Agreement, and agrees to be bound by all of the terms of the
Agreement. The Transferee's phone, facsimile and e-mail information is as
follows:
Attn: _____________________
Phone: _____________________
Fax: _____________________
Email: _____________________
Dated: _________, ____.
------------------------------------------
(the "Investor")
By:
--------------------------------------
Its:
-------------------------------------
------------------------------------------
(the "Transferee")
By:
--------------------------------------
Its:
-------------------------------------
