AMENDMENT TO RIGHTS AGREEMENT
This Amendment to Rights Agreement, effective as of the 30th day of
September, 2002, is made and entered into by and among U.S. Bank, National
Association ("U.S. Bank"), Midwest Express Holdings, Inc., a Wisconsin
corporation (the "Company"), and American Stock Transfer & Trust Company, a New
York banking corporation ("AST").
RECITALS:
WHEREAS, the Company and U.S. Bank (as successor to Firstar Trust
Company) are parties to that certain Rights Agreement, dated as of February 14,
1996, as amended, a copy of which is attached hereto as Exhibit A (the "Rights
Agreement"), pursuant to which U.S. Bank undertook the duties and obligations of
the Rights Agent (as defined in the Rights Agreement) under the terms and
conditions of the Rights Agreement;
WHEREAS, U.S. Bank has notified the Company that it will resign as the
Rights Agent;
WHEREAS, pursuant to Section 21 of the Rights Agreement, the Company
agrees to discharge U.S. Bank from its duties as Rights Agent under the Rights
Agreement;
WHEREAS, the Company desires to appoint AST as a successor Rights
Agent under the Rights Agreement, and AST desires to undertake and perform the
duties and obligations of the Rights Agent under the terms and conditions of the
Rights Agreement;
WHEREAS, the Company has directed U.S. Bank to amend Section 21 of the
Rights Agreement as necessary to allow the Company to appoint AST as a successor
Rights Agent under the Rights Agreement.
AGREEMENT:
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the parties agree as follows:
1. Amendment of Section 21 of Rights Agreement. Section 21 of the Rights
Agreement is amended and restated in its entirety to read as follows:
"Section 21. Change of Rights Agent. The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under this
Agreement upon 30 days' notice in writing mailed to the Company and to each
transfer agent of the Common Shares by registered or certified mail and, if
separate Right Certificates have been issued as of the date of such notice
as contemplated by Section 3 hereof, to the holders of the Right
Certificates by first-class mail. The Company may remove the Rights Agent
or any successor Rights Agent upon 30 days' notice in writing, mailed to
the Rights Agent or successor Rights Agent, as the case may be, and to each
transfer agent of the Common Shares by registered or certified mail, and,
if separate Right Certificates have been issued as of the date of such
notice as contemplated by Section 3 hereof, to the holders of the Right
Certificates by first-class mail. If the Rights Agent shall
resign or be removed or shall otherwise become incapable of acting, the
Company shall appoint a successor to the Rights Agent. If the Company shall
fail to make such appointment within a period of 30 days after giving
notice of such removal or after it has been notified in writing of such
resignation or incapacity by the resigning or incapacitated Rights Agent or
by the holder of a Right Certificate (who shall, with such notice, submit
his Right Certificate for inspection by the Company), then the registered
holder of any Right Certificate may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent. Any successor
Rights Agent, whether appointed by the Company or by such a court, shall be
(a) a corporation organized and doing business under the laws of the United
States or of the State of New York or the State of Wisconsin (or of any
other state of the United States so long as such corporation is authorized
to do business in the State of New York or the State of Wisconsin), in good
standing, having an office or agency in the State of Wisconsin or the State
of New York, which is authorized under such laws to exercise corporate
trust or stock transfer powers and is subject to supervision or examination
by federal or state authority and which has at the time of its appointment
as Rights Agent a combined capital and surplus of at least $10 million, or
(b) an Affiliate of a corporation described in clause (a) of this sentence.
After appointment, the successor Rights Agent shall be vested with the same
powers, rights, duties and responsibilities as if it had been originally
named as Rights Agent without further act or deed; but the predecessor
Rights Agent shall deliver and transfer to the successor Rights Agent any
property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Not
later than the effective date of any such appointment the Company shall
file notice thereof in writing with the predecessor Rights Agent and each
transfer agent of the Common Shares, and, if separate Right Certificates
have been issued as of such effective date as contemplated by Section 3
hereof, mail a notice thereof in writing to the registered holders of the
Right Certificates. Failure to give any notice provided for in this Section
21, however, or any defect therein, shall not affect the legality or
validity of the resignation or removal of the Rights Agent or the
appointment of the successor Rights Agent, as the case may be."
2. Amendment of Section 26 of Rights Agreement. Section 26 of the Rights
Agreement is amended and restated in its entirety to read as follows:
"Section 26. Notices.
(a) Notices or demands authorized by this Agreement to be given or
made by the Rights Agent or by the holder of any Right Certificate to or on
the Company shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is filed in writing
with the Rights Agent) as follows:
Midwest Express Holdings, Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxx 00000-0000
Attn: Secretary
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(b) Subject to the provisions of Section 21 hereof, any notice or
demand authorized by this Agreement to be given or made by the Company or
by the holder of any Right Certificate to or on the Rights Agent shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with the Company) as
follows:
American Stock Transfer & Trust Company7
00 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trust Department
(c) Notices or demands authorized by this Agreement to be given or
made by the Company or the Rights Agent to the holder of any Right
Certificate shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed to such holder at the address of such
holder as shown on the registry books of the Company."
3. Appointment. The Company appoints AST as a successor Rights Agent under
the terms and conditions of the Rights Agreement, as amended pursuant to Section
1 and Section 2 above (as so amended, the "Amended Rights Agreement").
4. Assumption. AST accepts the appointment as agent for the Company and the
holders of Rights (as defined in the Amended Rights Agreement) under the Amended
Rights Agreement, and AST assumes and agrees to perform all of the duties and
obligations of the Rights Agent under the terms and conditions of the Amended
Rights Agreement.
5. Rights Agent. From and after the September 30, 2002, each and every
reference in the Amended Rights Agreement to a "Rights Agent" shall be deemed a
reference to AST.
6. Section 21 Notice. This instrument constitutes notice to U.S. Bank, as
the Company's transfer agent, pursuant to Section 21 of the Rights Agreement
that the Company has appointed AST as the successor Rights Agent to U.S. Bank
and that U.S. Bank is discharged as such Rights Agent.
7. No Further Amendment. Except as provided in Section 1 and Section 2
above, the terms and conditions of the Amended Rights Agreement shall be
unaffected by this instrument and shall remain in full force and effect.
8. Successors. Pursuant to Section 28 of the Amended Rights Agreement, the
respective covenants and provisions of the Amended Rights Agreement by or for
the benefit of the Company or the Rights Agent shall bind and inure to the
benefit of the successors and assigns of the Company or the Rights Agent, as the
case may be.
9. Governing Law. This instrument shall be deemed to be a contract made
under the laws of the State of Wisconsin and for all purposes shall be governed
by and construed in accordance with the laws of such State applicable to
contracts to be made and performed entirely within such State.
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10. Counterparts. This instrument may be executed in any number of
counterparts, and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
11. Descriptive Headings. Descriptive headings of the Sections of this
instrument are inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions of this instrument.
IN WITNESS WHEREOF, the parties hereto have executed this instrument,
effective as of the date recited above.
MIDWEST EXPRESS HOLDINGS, INC. U.S. BANK, NATIONAL ASSOCIATION
By: /s/ Authorized Signature By: /s/ Authorized Signature
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Name: Name:
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Title: Title:
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AMERICAN STOCK TRANSFER &
TRUST COMPANY
By: /s/ Authorized Signature
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Name:
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Title:
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