Form of Subscription Agent Agreement
Exhibit 99.9
__________, 2000
First Union National Bank
0000 Xxxx X.X. Xxxxxx Xxxxxxxxx, 0X0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Ladies and Gentlemen:
Midway Airlines Corporation, a Delaware corporation (the "Company"), is
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distributing to the holders of record of its outstanding shares of common stock,
par value $0.01 per share (the "Common Stock"), at the close of business on June
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15, 2000 (the "Record Date"), subscription rights (each a "Right," and
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collectively, the "Rights") to purchase shares of Common Stock (the "Additional
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Common Stock") at a purchase price of $5.20 per share of Additional Common Stock
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(the "Subscription Price"), upon the terms and conditions set forth in the
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prospectus, dated June __, 2000 (the "Prospectus") (the "Rights Offering"). The
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term "Subscribed" shall mean submitted for purchase from the Company by a
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stockholder in accordance with the terms of the Rights Offering, and the term
"Subscription" shall mean any such submission. The Rights Offering will expire
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at 5:00 p.m., New York City time, on July ___, 2000 (the "Expiration Time"),
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unless the Company shall have extended the period of time for which the Rights
Offering is open, in which event the term "Expiration Time" shall mean the
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latest time and date at which the Rights Offering, as so extended by the Company
from time to time, shall expire.
The Company has filed a Registration Statement (No. 333-38244) relating to
the Rights and Additional Common Stock (as amended from time to time, the
"Registration Statement") with the Securities and Exchange Commission under the
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Securities Act of 1933, as amended. Said Registration Statement was declared
effective on __________, 2000. The terms of the Additional Common Stock are
more fully described in the Prospectus forming part of the Registration
Statement as it was declared effective. Copies of the Prospectus, the
Instructions For Use of Midway Airlines Corporation Subscription Certificate
(the "Instructions") and the Notice of Guaranteed Delivery are attached hereto
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and incorporated herein by reference as Exhibit 1, Exhibit 2 and Exhibit 3,
respectively. Each capitalized term used and not defined herein shall have the
same meaning as in the Prospectus. Promptly after the date hereof, you will
prepare a list of holders of Common Stock as of the Record Date (the "Record
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Stockholders List").
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The Rights are evidenced by Subscription Certificates (individually, a
"Subscription Certificate," and collectively, the "Subscription Certificates")
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attached hereto as Exhibit 4. The Subscription Certificates entitle the holders
thereof to subscribe, upon payment of the Subscription Price, for shares of
Additional Common Stock at the rate of one (1) share for each Right evidenced by
a Subscription Certificate (the "Basic Subscription Privilege"). Brokers,
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dealers or other nominees holding Common Stock on the Record Date for more than
one beneficial owner may (after making a proper showing to the Subscription
Agent) exercise the number of Rights to which all such beneficial
owners in the aggregate otherwise would have been entitled if they had been
direct record holders of such Common Stock on the Record Date. The Rights
Offering includes an over-subscription privilege entitling the holder of a
Subscription Certificate, if said holder fully exercises its Basic Subscription
Privilege, to Subscribe and pay the Subscription Price for additional shares of
Additional Common Stock (the "Over-Subscription Privilege"). Reference is made
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to the Prospectus under "The Rights Offering--Basic Subscription Privilege" and
"--Over-Subscription Privilege" for a complete description of the Basic
Subscription Privilege and the Over-Subscription Privilege.
The Company hereby appoints you as Subscription Agent (the "Subscription
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Agent") for the Rights Offering and agrees with you as follows:
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1. As Subscription Agent, you are authorized and directed to:
(A) Prepare and issue the Subscription Certificates in accordance
with this Agreement in the names of the holders of the Common
Stock of record on the Record Date, keep such records as are
necessary for the purpose of recording such issuance, and furnish
a copy of such records to the Company. You shall affix such
identifying information as you deem necessary to identify each
particular Rights holder upon return of the executed Subscription
Certificates. The Subscription Certificates may be signed on your
behalf by the manual or facsimile signature of a Vice President
or Assistant Vice President of the Subscription Agent, or by the
manual signature of any of your other authorized officers.
(B) Keep or cause to be kept books for registration of Rights. Such
books will show the names and addresses of the respective Rights
holders and the number of Rights that have been granted or held.
(C) Promptly after you have prepared the Record Stockholders List:
(a) mail or cause to be mailed, by first class mail, to each
holder of Common Stock of record on the Record Date whose
address of record is within the United States, (i) a
Subscription Certificate evidencing the Rights to which such
stockholder is entitled under the Rights Offering, (ii) a
copy of the Prospectus, (iii) the Instructions, (iv) a
Notice of Guaranteed Delivery and (v) a return envelope
addressed to you, as the Subscription Agent; and
(b) mail or cause to be mailed, by air mail, to each holder of
Common Stock of record on the Record Date whose address of
record is outside the United States, or is an A.P.O. or
F.P.O. address (i) a copy of the Prospectus, (ii) a Notice
of Guaranteed Delivery and (iii) the Instructions. You shall
refrain from mailing Rights Certificates issuable to any
holder of Common Stock of record on the Record Date whose
address of record is outside the United States and Canada,
or is an
A.P.O. or F.P.O. address, and hold such Rights Certificates
for the account of such stockholder subject to such
stockholder making satisfactory arrangements with the
Subscription Agent for the exercise of the Rights evidenced
thereby, and follow the instructions of such stockholder for
the exercise of such Rights if such instructions are
received at or before 5 p.m., New York City time, on
__________, 2000.
(D) Mail or deliver a copy of the Prospectus with certificates for
shares of Additional Common Stock when such are issued to persons
other than the registered holder of the Subscription Certificate.
(E) Accept Subscriptions upon the due exercise (including payment of
the Subscription Price) on or prior to the Expiration Time of
Rights in accordance with the terms of the Prospectus, the
Instructions and the Subscription Certificate.
(F) Subject to the next sentence, accept Subscriptions from Rights
holders whose Subscription Certificates are alleged to have been
lost, stolen or destroyed upon receipt by you of an affidavit of
theft, loss or destruction and a bond of indemnity in form and
substance satisfactory to you, accompanied by payment of the
Subscription Price for the total number of shares of Additional
Common Stock Subscribed for by such Rights holder. Upon receipt
of such affidavit and bond of indemnity and compliance with any
other applicable requirements, stop orders shall be placed on
said Subscription Certificates and you shall withhold delivery of
the shares of Additional Common Stock Subscribed for until after
the Subscription Certificates have expired and it has been
determined that the Rights evidenced by the Subscription
Certificates have not otherwise been purported to have been
exercised.
(G) Accept Subscriptions, unless you have further authorization or
direction from the Company, only if you have procured supporting
legal papers or other proof of authority to sign (including
without limitation proof of appointment of a fiduciary or other
person acting in a representative capacity), and only if you have
procured the signatures of co-fiduciaries, co-representatives or
any other appropriate person:
(a) if the Subscription Certificate is registered in the name of
a fiduciary and is executed by and the Additional Common
Stock is to be issued in the name of such fiduciary;
(b) if the Subscription Certificate is registered in the name of
joint tenants and is executed by one of the joint tenants,
provided the certificate representing the Additional Common
Stock is issued in the names of, and is to be delivered to,
such joint tenants;
(c) if the Subscription Certificate is registered in the name of
a corporation and is executed by a person in a manner which
appears or purports to be done in the capacity of an
officer, or agent thereof, provided the Additional Common
Stock is to be issued in the name of such corporation; or
(d) if the Subscription Certificate is registered in the name of
an individual and is executed by a person purporting to act
as such individual's executor, administrator or personal
representative, provided the Additional Common Stock is to
be registered in the name of the subscriber as executor or
administrator of the estate of the deceased registered
holder and there is no evidence indicating the subscriber is
not the duly authorized representative that he purports to
be.
(H) Accept Subscriptions not accompanied by Subscription Certificates
if submitted by a firm having membership in a registered national
securities exchange or by a commercial bank or trust company
having an office or correspondent in the United States together
with the Notice of Guaranteed Delivery and accompanied by proper
payment for the total number of shares of Additional Common Stock
Subscribed for by such holder; provided that such firm complies
with the guaranteed delivery procedures set forth in the
Prospectus under the heading "Rights Offering --Guaranteed
Delivery Procedures."
(I) Refer to the Company for specific instructions as to acceptance
or rejection, of Subscriptions received after the Expiration
Time, Subscriptions not authorized to be accepted pursuant to
this Paragraph 1, and Subscriptions otherwise failing to comply
with the requirements of the Prospectus and the terms and
conditions of the Subscription Certificates.
(J) Upon acceptance of a Subscription:
(a) hold all funds received from Rights holders in a special
account for the benefit of the Company. Promptly following
the Expiration Time you shall distribute to the Company the
funds in such account (including interest thereon) and issue
certificates for shares of Additional Common Stock issuable
to those Rights holders whose Subscriptions have been
accepted by the Company.
(b) advise the Company daily by telecopy and confirm by letter
to the attention of Xxxx Xxxxxx (the "Company
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Representative"), as to the total number of shares of
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Additional Common Stock Subscribed for pursuant to the Basic
Subscription Privilege, the number of shares of Additional
Common Stock Subscribed for pursuant to the Over-
Subscription Privilege and the amount of funds received,
with
cumulative totals for each; and in addition advise the
Company Representative, by telephone (000) 000-0000,
confirmed by telecopy, of the amount of funds received
identified in accordance with (a) above, deposited,
available or transferred in accordance with (a) above, with
cumulative totals; and
(c) as promptly as possible but in any event on or before 8:00
a.m., New York City time, on the day following the
Expiration Time, advise the Company Representative in
accordance with (b) above of the number of shares of
Additional Common Stock Subscribed for pursuant to the Basic
Subscription Privilege, the number of shares of Additional
Common Stock Subscribed for pursuant to the Over-
Subscription Privilege and the number of shares of
Additional Common Stock unsubscribed for.
(K) Upon completion of the Rights Offering, you shall issue
certificates for shares of Additional Common Stock for which
Rights holders have Subscribed and whose subscriptions have been
accepted by the Company.
(L) If a Rights holder exercised his Over-Subscription Privilege and
is allocated less than all of the additional shares of Additional
Common Stock for which he Subscribed, you shall take such action
as reasonably requested by the Company to return the excess funds
such Rights holder paid for additional shares of Additional
Common Stock not allocated to him, without interest or deduction.
2. You will examine the Subscription Certificates received by you as
Subscription Agent to ascertain whether they appear to you to have
been completed and executed in accordance with the Prospectus and the
Instructions. In the event you determine that any Subscription
Certificate does not appear to you to have been properly completed or
executed, or where the Subscription Certificates do not appear to you
to be in proper form for Subscription, or any other irregularity in
connection with the Subscription appears to you to exist, you will
follow, where possible, your regular procedures to attempt to cause
such irregularity to be corrected. You are not authorized to waive any
irregularity in connection with the Subscription, unless you shall
have received from the Company the notification, duly dated and signed
by an authorized officer of the Company, indicating that any
irregularity in such Subscription Certificate has been cured or waived
and that such Subscription Certificate has been accepted by the
Company. If any such irregularity is neither corrected nor waived, you
will return to the subscribing stockholder (at your option by either
first class mail under a blanket surety bond or insurance protecting
you and the Company from losses or liabilities arising out of the non-
receipt or nondelivery of Subscription Certificates or by registered
mail insured separately for the value of such Subscription
Certificates) to such stockholder's address as set forth in the
Subscription, any Subscription Certificate surrendered in connection
therewith and any other documents received with such Subscription
Certificates, and if determined to be required by the Company, a
letter of notice to be furnished by the Company explaining the reasons
for the return of the Subscription Certificates and other documents.
3. Each document received by you relating to your duties under this
Agreement shall be dated and time stamped when received.
4. (A) For so long as this Agreement shall be in effect, the Company
will reserve for issuance and keep available free from preemptive
rights a sufficient number of shares of Additional Common Stock
to permit the exercise in full of all Rights issued pursuant to
the Rights Offering. Subject to the terms and conditions of this
Agreement, you in your capacity as transfer agent for the Common
Stock shall issue certificates evidencing the appropriate number
of shares of Additional Common Stock as required from time to
time in order to effectuate the Subscriptions.
(B) The Company shall endeavor to take any and all action, including
without limitation obtaining the authorization, consent, lack of
objection, registration or approval of any governmental
authority, or the taking of any other action under the laws of
the United States of America or any political subdivision
thereof, to insure that all shares of Additional Common Stock
issuable upon the exercise of the Subscription Certificates at
the time of delivery of the certificates therefor (subject to
payment of the Subscription Price) will be duly and validly
issued and fully paid and nonassessable shares of Common Stock,
free from all preemptive rights and taxes, liens, charges and
security interests created by or imposed upon the Company with
respect thereto.
(C) Except as set forth in the Prospectus, the Company shall endeavor
to take all action necessary or appropriate to obtain and keep
effective all registrations, permits, consents and approvals of
the Securities and Exchange Commission and any other governmental
agency or authority and make such filings under Federal and state
laws which may be necessary or appropriate in connection with the
issuance, sale, transfer and delivery of Subscription
Certificates or Additional Common Stock issued upon exercise of
Rights.
5. Should any issue arise regarding federal income tax reporting or
withholding, you will take such action as the Company instructs you in
writing.
6. The Company may terminate this Agreement at any time by so notifying
you in writing. You may terminate this Agreement upon 30 days' prior
notice to the Company. Upon any such termination, you shall be
relieved and discharged of any further responsibilities with respect
to your duties hereunder. Upon payment of all your outstanding fees
and expenses, you will forward to the Company or its designee promptly
any Subscription Certificate or other document relating to your duties
hereunder that you may receive after your appointment has so
terminated. Sections 10 and 11 of this Agreement shall survive any
termination of this Agreement.
7. As agent for the Company hereunder you:
(A) shall have no duties or obligations other than those specifically
set forth herein or as may subsequently be agreed to in writing
by you and the Company;
(B) shall have no obligation to issue any shares of Additional Common
Stock unless the Company shall have provided a sufficient number
of certificates for such Additional Common Stock;
(C) shall be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or
genuineness of any Subscription Certificates surrendered to you
hereunder or shares of Additional Common Stock issued in exchange
therefor, and will not be required to or be responsible for and
will make no representations as to, the validity, sufficiency,
value or genuineness of the Rights Offering;
(D) shall not take any legal action hereunder without the prior
written approval of the Company; you shall not be obligated to
take any legal action hereunder; if, however, you determine to
take legal action and if the taking of such action might, in your
judgment, subject or expose you to any expense or liability, you
shall not be required to act unless you shall have been furnished
with an indemnity reasonably satisfactory to you;
(E) may rely on and shall be fully authorized and protected in acting
in good faith or failing in good faith to act upon any
certificate, instrument, opinion, notice, letter, telegram,
telex, facsimile transmission or other document or security
delivered to you and reasonably believed by you to be genuine and
to have been signed by the proper party or parties;
(F) shall not be liable or responsible for any recital or statement
contained in the Prospectus or any other documents relating
thereto;
(G) shall not be liable or responsible for any failure on the part of
the Company to comply with any of its covenants and obligations
relating to the Rights Offering, including without limitation
obligations under applicable securities laws;
(H) may rely on and shall be fully authorized and protected in acting
in good faith or failing in good faith to act based upon and in
accordance with the written, telephonic or oral instructions with
respect to any matter relating to you acting as Subscription
Agent covered by this Agreement (or supplementing or qualifying
any such actions) of officers of the Company authorized hereunder
to act for the Company;
(I) may consult with counsel satisfactory to you, and the advice of
such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered, or omitted
by you hereunder in good faith and in accordance with the advice
of such counsel;
(J) may perform any of your duties hereunder either directly or by or
through agents or attorneys selected by you in good faith and
with reasonable care;
(K) are not authorized, and shall have no obligation, to pay any
brokers, dealers, or soliciting fees to any person; and
(L) shall not at any time advise any person exercising or considering
exercising, pursuant to the Rights Offering as to the wisdom of
making such an exercise or as to the market value of any
security.
8. In the event any question or dispute arises with respect to the proper
interpretation of the Rights Offering or your duties hereunder or the
rights of the Company or of any stockholders surrendering Subscription
Certificates pursuant to the Rights Offering, you shall not be
required to act and shall not be held liable or responsible for your
refusal to act until the question or dispute has been judicially
settled (and, if appropriate, you may file a suit in interpleader or
for a declaratory judgment for such purpose) by final judgment
rendered by a court of competent jurisdiction, binding on all parties
interested in the matter which is no longer subject to review or
appeal, or settled by a written document in form and substance
satisfactory to you and executed by the Company and each such
stockholder and party.
9. Any instructions given to you orally, as permitted by any provision of
this Agreement, shall be confirmed in writing by the Company as soon
as practicable. You shall not be liable or responsible and shall be
fully authorized and protected for acting in good faith, or failing in
good faith to act, in accordance with any oral instructions which do
not conform with the written confirmation received in accordance with
this Section.
10. Whether or not any Subscription Certificates are surrendered to you,
for your services as Subscription Agent hereunder the Company shall
pay to you compensation of $19,000, together with reimbursement for
your reasonable out-of-pocket expenses, including reasonable fees and
disbursements of counsel, subject to receipt of reasonably
satisfactory documentation thereof.
11. The Company covenants to indemnify and hold you harmless from and
against any loss, liability, claim or expense ("Loss") arising out of
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or in connection with your duties under this Agreement, including the
costs and expenses of defending yourself against any Loss, unless such
Loss shall have been determined by a court of competent jurisdiction
to be a result of your gross negligence, willful misconduct or bad
faith. Anything in this Agreement to the contrary notwithstanding, in
no event shall you be liable for special, indirect, incidental or
consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if you
have been advised of the likelihood of such damages and regardless of
the form of action. You shall notify the Company, by letter or by
telex or facsimile transmission confirmed by letter, of the written
assertion of any action, proceeding, suit or claim made or commenced
against you promptly after you shall have been served with the summons
or other first legal process or have received the first written
assertion giving information as to the nature and basis of the action,
proceeding, suit or claim; provided, however, that the failure to
provide such notice to the Company shall not relieve the Company from
any liability it may have on account of the indemnity under this
Section 11 except to the extent the Company has been prejudiced in any
respect by such failure. The Company shall be entitled to participate
at its own expense in the defense of any such action, proceeding, suit
or claim. In the event that the Company assumes such defense, the
Company shall not thereafter be liable for the fees and expenses of
any additional counsel that you retain, so long as the Company shall
retain counsel satisfactory to you, in the exercise of your reasonable
judgment to defend such suit. You agree not to settle any claim or
litigation in connection with any such claim or liability with respect
to which you may seek indemnification from the Company without the
prior written consent of the Company.
12. If any provision of this Agreement shall be held illegal, invalid, or
unenforceable by any court, this Agreement shall be construed and
enforced as if such provision had not been contained herein and shall
be deemed an Agreement among us to the full extent permitted by
applicable law.
13. The Company represents and warrants that (a) it is duly incorporated,
validly existing and in good standing under the laws of its
jurisdiction of incorporation, (b) the making and consummation of the
Rights Offering and the execution, delivery and performance of all
transactions contemplated thereby (including without limitation this
Agreement) have been duly authorized by all necessary corporate action
and will not result in a breach of or constitute a default under the
certificate of incorporation or bylaws of the Company or any
indenture, agreement or instrument to which it is a party or is bound
which breach or default would have a material adverse effect on the
Rights Offering, (c) this Agreement has been duly executed and
delivered by the Company and constitutes the legal, valid, binding and
enforceable obligation of it, (d) the Rights Offering will comply in
all material respects with all applicable requirements of law and (e)
to the best of its knowledge, there is no litigation pending or
threatened as of the date hereof in connection with the Rights
Offering.
14. In the event that any claim of inconsistency between this Agreement
and the terms of the Rights Offering arise, as they may from time to
time be amended, the terms of the Rights Offering shall control,
except with respect to the duties, liabilities and rights, including
compensation and indemnification of you as Subscription Agent, which
shall be controlled by the terms of this Agreement.
15. Except as expressly set forth elsewhere in this Agreement, all
notices, instructions and communications under this Agreement shall be
in writing, shall be effective upon receipt and shall be addressed, if
to the Company, to its address set forth beneath its signature to this
Agreement, or, if to the Subscription Agent, to its address set forth
on the first page hereof, or to such other address as a party hereto
shall notify the other parties.
16. This Agreement shall be governed by and construed in accordance with
the laws of the State of North Carolina, without giving effect to
conflict of laws rules or principles, and shall inure to the benefit
of and be binding upon the successors and assigns of the parties
hereto; provided that this Agreement may not be assigned by any party
without the prior written consent of all other parties.
17. No provision of this Agreement may be amended, modified or waived,
except in a written document signed by both parties.
18. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
Please acknowledge receipt of this Agreement, the Prospectus, the
Instructions, the Notice of Guaranteed Delivery and the Subscription Certificate
with respect to the Rights Offering and confirm
your agreement concerning your appointment as Subscription Agent, and the
arrangements herein provided, by signing and returning the enclosed copy hereof,
whereupon this Agreement and your acceptance of the terms and conditions herein
provided shall constitute a binding Agreement between us.
Very truly yours,
Midway Airlines Corporation
By:_________________________
Name:
Title:
Address for notices:
Midway Airlines Corporation
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxxx
Accepted as of the date first above written:
First Union National Bank
By:____________________
Name:
Title:
Exhibit 1 Prospectus
Exhibit 2 Instructions for Use of Midway Airlines Corporation Rights Certificate
Exhibit 3 Notice of Guaranteed Delivery
Exhibit 4 Form of Subscription Certificate
