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EXHIBIT 4.5
[Banner Aerospace, Inc. Letterhead]
FORM OF SUBSCRIPTION AGENT AGREEMENT
Date: ____________________
Xxxxxx Trust Company of New York
00 Xxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10005
Attn.: Reorganization Department
Ladies and Gentlemen:
Banner Aerospace, Inc., a Delaware corporation (the
"Company"), is making an offer to issue (the "Rights Offering") to the holders
of record of its outstanding shares of Common Stock, par value $1.00 per share
(the "Common Stock"), at 5:00 p.m. on _____________, 1997 (the "Record Date"),
the right to subscribe for and purchase (each a "Right") shares of Series A
Convertible Paid-in-Kind Preferred Stock, par value $.01 per share (the
"Preferred Stock") at a purchase price of $9.20 per share (the "Subscription
Price"), payable in U.S. funds by certified check, bank draft or money order
payable at par (without deduction for bank service charges or otherwise), upon
the terms and conditions set forth herein. The term "Subscribed" shall mean
submitted for purchase from the Company by a stockholder in accordance with the
terms of the Rights Offering, and the term "Subscription" shall mean any such
submission. The Rights Offering will expire at 5:00 p.m., New York City Time,
on _____________, 1997 (the "Expiration Date"), unless the Company shall have
extended the period of time for which the Rights Offering is open, in which
event the term "Expiration Date" shall mean the latest time and date, but in no
event later than ___________, 1997, at which the Rights Offering, as so
extended by the Company from time to time, shall expire.
The Company filed a Registration Statement relating to the
Preferred Stock with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, on February 24, 1997. Said Registration
Statement, as amended, was declared effective on ____________, 1997. The terms
of the Preferred Stock are more fully described in the Prospectus forming part
of the
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Registration Statement as it was declared effective, and the instructions (the
"Letter of Instructions") attached to the Subscription Certificate (as defined
below) which shall accompany the Prospectus, both of which are incorporated
herein by reference and made a part hereof as if set forth herein. Copies of
the Prospectus, the Letter of Instruction and the Notice of Guaranteed Delivery
are annexed hereto as Exhibit 1, Exhibit 2 and Exhibit 3, respectively. All
terms used and not defined herein shall have the same meaning as in the
Prospectus. Promptly after the Record Date, the Company will provide you with
a list of holders of Common Stock as of the Record Date (the "Record
Stockholders List").
The Rights are evidenced by non-transferable subscription
certificates (the "Subscription Certificates"), a copy of the form of which is
annexed hereto as Exhibit 4. The Subscription Certificates entitle the holders
to subscribe, upon payment of the Subscription Price, for shares of Preferred
Stock at the rate of one share for each Right evidenced by a Subscription
Certificate (the "Subscription Privilege"). No fractional Rights will be
issued; however, one Right will be issued in lieu of any fractional Right to
which a holder would otherwise be entitled. Reference is made to the
Prospectus for a complete description of the Rights Offering.
The Company hereby appoints you as Subscription Agent (the
"Subscription Agent") for the Rights Offering and agrees with you as follows:
1) As Subscription Agent, you are authorized and
directed to:
(A) 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. The Subscription Certificates may be signed on behalf
of the Subscription Agent 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 its other authorized officers.
(B) On ____________, 1997:
(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 and
Canada, (i) a Subscription Certificate, with a Letter of
Instructions attached thereto, evidencing the Rights to which
such stockholder is entitled under the Rights Offering, (ii) a
copy of the Prospectus, (iii) a Notice of Guaranteed Delivery
and (iv) a return envelope addressed to 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 and Canada, or
is an A.P.O. or F.P.O.
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address (i) a copy of the Prospectus, (ii) a Notice of
Guaranteed Delivery and (iii) a Letter of Instruction
(different from the Letter of Instruction sent to stockholders
whose address of record is within the United States and
Canada). You shall refrain from mailing Subscription
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 Subscription Certificates for the account of
such stockholder subject to such stockholder making
satisfactory arrangements with the Subscription Agent for the
exercise or other disposition of the Rights evidenced thereby,
and follow the instructions of such stockholder for the
exercise, sale or other disposition of such Rights if such
instructions are received at or before 11:00 a.m., New York
City Time, on _____________, 1997.
(C) Mail or deliver a copy of the Prospectus with
certificates for shares of Preferred Stock when such are issued to
persons other than the registered holder of the Subscription
Certificate.
(D) Instruct investors and stockholders to contact
Corporate Investor Communications, Inc. (the "Information Agent") at
000 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000-0000; Tel. (800)
932-8494 for additional copies of the Prospectus or additional
information.
(E) Accept Subscriptions upon the due exercise of Rights
(including payment of the Subscription Price) on or prior to the
Expiration Date in accordance with the terms of the Subscription
Certificates and the Prospectus.
(F) Subject to the next sentence, accept Subscriptions
from stockholders 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 Preferred Stock
Subscribed for. 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 Preferred 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 or otherwise
surrendered.
(G) Accept Subscriptions, without further authorization or
direction from the Company,
(a) if the Subscription Certificate is executed
by the registered stockholder named on the face of the
Subscription Certificate, provided that persons who sign the
Subscription Certificate in a representative or
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other fiduciary capacity must indicate their capacity when
signing and, unless waived by the Subscription Agent in its
sole and absolute discretion, must present to the Subscription
Agent satisfactory evidence of their authority to act;
(b) if executed by a person other than the
registered stockholder named on the face of the Subscription
Certificate and accompanied by proper evidence of authority of
the person executing the Subscription Certificate unless, for
good cause, the Subscription Agent dispenses with proof of
authority; or
(c) if the subscriber specifies special payment or
delivery instructions pursuant to Part II of the Subscription
Certificate and the signatures on the Subscription Certificate
are guaranteed by an Eligible Institution (as defined below).
(H) Accept Subscriptions not accompanied by Subscription
Certificates if submitted by a member firm of any United States
national securities exchange or of the National Association of
Securities Dealers, Inc. or another national securities exchange or by
a financial institution having an office in the United States (each an
"Eligible Institution") together with the Notice of Guaranteed
Delivery and accompanied by proper payment for the total number of
shares of Preferred Stock Subscribed for.
(I) Accept Subscriptions even though unaccompanied by
Subscription Certificates, under the circumstances and in compliance
with the terms and conditions set forth in the Prospectus under the
heading "DESCRIPTION OF THE RIGHTS OFFERING--Subscription for
Preferred Stock".
(J) Refer to the officers set forth on Exhibit B for
specific instructions as to acceptance or rejection, Subscriptions
received after the Expiration Date, 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.
(K) Upon acceptance of a Subscription:
(a) hold all monies received in a special account
for the benefit of the Company. All earnings or interest on
any amounts held in such account shall be paid to the Company.
Promptly following the Expiration Date you shall distribute to
the Company the funds in such account and issue certificates
for shares of Preferred Stock issuable with respect to
Subscriptions which have been accepted.
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(b) advise the Company daily by telecopy and
confirm by hard copy to:
Banner Aerospace, Inc.
000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxxx, X.X. 00000
Telefax: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxxxx (the "Company Representative")
as to the total number of shares of Preferred Stock Subscribed
for, total number of Rights partially Subscribed for and the
amount of funds received, with cumulative totals for each; and
in addition advise the Company Representative, by telephone at
(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 3:30 p.m., New York City Time, on the first full
business day following the Expiration Date, advise the Company
Representative in accordance with (b) above of the number of
shares of Preferred Stock Subscribed for, the number of
Subscription guarantees received and the number of shares of
Preferred Stock unsubscribed for.
(L) Upon completion of the Rights Offering, you shall
requisition certificates from Xxxxxx Trust and Savings Bank, in its
capacity as transfer Agent (the "Transfer Agent"), for the Preferred
Stock for shares of Preferred Stock Subscribed for.
2) You will follow your regular procedures to attempt to
reconcile any discrepancies between the number of shares of Preferred Stock
that any Subscription Certificate may indicate are to be issued to a
stockholder and the number that the Record Stockholders List indicates may be
issued to such stockholder. In any instance where you cannot reconcile such
discrepancies by following such procedures, you will consult with the Company
for instructions as to the number of shares of Preferred Stock, if any, you are
authorized to issue. In the absence of such instructions, you are authorized
not to issue any shares of Preferred Stock to such stockholder.
3) 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 applicable Letter of
Instruction. 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
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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 one of the representatives of
the Company named in Exhibit B hereto the Subscription Certificate which was
delivered, 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 as soon as practicable (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
Certificates surrendered in connection therewith and any other documents
received with such Subscription Certificates, and a letter of notice to be
furnished by the Company explaining the reasons for the return of the
Subscription Certificates and other documents.
4) Each document received by you relating to your duties
hereunder shall be dated and time stamped when received.
5) (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 Preferred 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 will request the Transfer Agent for
the Preferred Stock to issue certificates evidencing the appropriate number of
shares of Preferred Stock as required from time to time in order to effectuate
the Subscriptions.
(b) The Company shall 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 Preferred 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 Preferred
Stock, free from all preemptive rights and taxes, liens, charges and security
interests created by or imposed upon the Company with respect thereto.
(c) The Company shall from time to time 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 and delivery of Subscription Certificates or the issuance, sale,
transfer and delivery of Preferred Stock issued upon exercise of Subscription
Certificates.
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6) If certificates representing shares of Preferred
Stock are to be delivered by you to a person other than the person in whose
name a surrendered Subscription Certificate is registered, you will issue no
certificate for Preferred Stock until the Subscription Certificate so
surrendered has been properly endorsed (or otherwise put in proper form for
transfer) and the person requesting such exchange has paid any transfer or
other taxes or governmental charges required by reason of the issuance of a
certificate for Preferred Stock in a name other than that of the registered
holder of the Subscription Certificate surrendered, or has established to your
satisfaction that any such tax or charge either has been paid or is not
payable.
7) Should any issue arise regarding Federal income tax
reporting or withholding, you will take such action as the Company instructs
you in writing.
8) 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, 12, and 13 of this Agreement
shall survive any termination of this Agreement.
9) 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
Preferred Stock unless the Company shall have provided a sufficient
number of certificates for such Preferred 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 Preferred 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 be obligated to take any legal action
hereunder; if, however, you determine to take any legal action
hereunder, and where 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 satisfactory to you;
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(e) may rely on and shall be fully authorized and
protected in acting or failing to act upon any certificate,
instrument, opinion, notice, letter, telegram, telex, facsimile
transmission or other document or security delivered to you and
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 or failing to act upon 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 the representatives of the Company
named in Exhibit B;
(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; and
(k) are not authorized, and shall have no obligation, to
pay any brokers, dealers, or soliciting fees to any person.
10) 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. In addition, you may require for such purpose, but
shall not be obligated to require, the execution of such written settlement by
all the stockholders and all other parties that may have an interest in the
settlement.
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11) 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, or failing to act, in accordance
with any oral instructions which do not conform with the written confirmation
received in accordance with this Section.
12) Whether or not any Subscription Certificates are
surrendered to you, for your services as Subscription Agent hereunder, the
Company shall pay to you compensation in accordance with the fee schedule
attached as Exhibit A hereto, together with reimbursement for out-of-pocket
expenses, including reasonable fees and disbursements of counsel.
13) The Company covenants and agrees to indemnify and
hold you harmless against any reasonable costs, expenses (including reasonable
fees for legal counsel), losses or damages, which may be paid, incurred or
suffered by you or to which you may become subject, arising from or out of,
directly or indirectly, any claim or liability resulting from your actions as
Subscription Agent pursuant hereto; provided that such covenant and agreement
does not extend to such costs, expenses, losses and damages incurred or
suffered by you as a result of, or arising out of, your own negligence,
misconduct or bad faith or that of any employees, agents, attorneys or
independent contractors used by you in connection with performance of your
duties as Subscription Agent hereunder. In no case shall the Company be liable
under this indemnity with respect to any action, proceeding, suit or claim
against you unless the Company shall be notified by you, 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, but failure so to notify
the Company shall not release the Company of any liability which it may
otherwise have on account of this Agreement. The Company shall be entitled to
participate at its own expense in the defense of any such action, proceeding,
suit or claim.
14) 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.
15) 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
material breach of or constitute a material default under the certificate of
incorporation or bylaws of the Company or
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any indenture, agreement or instrument to which it is a party or is bound; (c)
this Agreement has been duly executed and delivered by the Company and
constitutes the legal, valid, binding and enforceable obligation of it, except
as may be limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or transfer or similar laws of general applicability
affecting the enforcement of creditors rights generally, and except that such
enforceability may be limited by the application of general principles of
equity (regardless of whether considered in a proceeding in equity or at law),
including, without limitation, (i) the possible unavailability of specific
performance, injunctive relief or any other equitable remedy and (ii) concepts
of materiality, reasonableness, good faith and fair dealing; (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.
16) 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.
17) Set forth in Exhibit B hereto is a list of the names
and specimen signatures of the persons authorized to act for the Company under
this Agreement. The Secretary of the Company shall, from time to time, certify
to you the names and signatures of any other persons authorized to act for the
Company under this Agreement.
18) 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 Xxxxxx Trust Company of New
York, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Reorganization
Department, or to such other address as a party hereto shall notify the other
parties.
19) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, 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.
20) No provision of this Agreement may be amended,
modified or waived, except in a written document signed by both parties.
Please acknowledge receipt of this letter 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
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Agreement and your acceptance of the terms and conditions herein provided shall
constitute a binding Agreement between us.
Very truly yours,
BANNER AEROSPACE, INC.
By:
----------------------------------
Name:
Title:
Address for notices:
Banner Aerospace, Inc.
000 Xxxx Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000 0000
Accepted as of the date
above first written:
XXXXXX TRUST COMPANY OF NEW YORK,
AS SUBSCRIPTION AGENT
By:
-----------------------------
Name:
Title:
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XXXXXX XXXXX XXXXXXX XX XXX XXXX
Exhibit 1 Prospectus
Exhibit 2 Letter of Instruction
Exhibit 3 Notice of Guaranteed Delivery
Exhibit 4 Form of Subscription Certificate
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EXHIBIT A
XXXXXX TRUST COMPANY OF NEW YORK
Schedule of Fees
as
Subscription Agent in connection with
the Subscription Agent Agreement
