Exhibit 99.1
SUBSCRIPTION AGENT AGREEMENT
Date: ______________, 2001
Computershare Trust Company of New York
00 Xxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Reorganization Department
Gentlemen:
Union Acceptance Corporation, an Indiana corporation (the "Company"), is
issuing to the holders of record of its outstanding shares of Class A Common
Stock, no par value (the "Class A Common Stock"), and Class B Common Stock, no
par value (the "Class B Common Stock"), at the close of business on ___________,
2001 (the "Record Date"), the right to subscribe for and purchase (each a
"Right") shares of Class A Common Stock (the "Additional Common Stock") at a
purchase price of _____ per share of Additional Common Stock (the "Subscription
Price"), payable by cashier's or certified check or wire, upon the terms and
conditions set forth herein. The term "Subscription Offer" shall mean the
offering of shares of Class A Common Stock pursuant to the Rights.
"Subscription" shall mean the due and lawful exercise of a Right by the holder
thereof by means of submission of a duly executed and completed Subscription
Rights Certificate (or Notice of Guaranteed Delivery followed by submission of a
Subscription Rights Certificate) together with payment of the applicable
Subscription Price, in accordance with the Subscription Offer (including the
terms of the Subscription Rights Certificate and related instructions) all for
the purpose of purchasing Additional Common Stock in the Subscription Offer. The
Rights are transferable by the beneficial owner only to an Affiliate or Related
Party, as defined in the Subscription Rights Certificate. The Subscription Offer
will expire at 5:00 p.m., Eastern Standard Time, on ____________, 2001 (the
"Expiration Time"), unless the Company shall have extended the period of time
for which the Subscription Offer is open, in which event the term "Expiration
Time" shall mean the latest time and date at which the Subscription Offer, as so
extended by the Company from time to time, shall expire.
The Company filed a Registration Statement relating to the Additional
Common Stock with the Securities and Exchange Commission under the Securities
Act of 1933, as amended, on ________________, 2001. Said Registration Statement
was declared effective on _______________, 2001. 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, and the accompanying
Instruction As To Use of Subscription Rights Certificates. Copies of the
Prospectus, the Letters of Instructions and the Notice of Guaranteed Delivery
are annexed hereto as Exhibit B, Exhibit C and Exhibit D, 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 its Class A Common Stock and Class B Common Stock as of the
Record Date (the "Record Stockholders List").
The Rights are evidenced by subscription rights certificates (the
"Subscription Rights Certificates"), a copy of the form of which is annexed
hereto as Exhibit E. The Subscription Rights Certificates entitle the holders to
subscribe, upon payment of the Subscription Price, for shares of Additional
Common Stock at the rate of one share for each Right (the "Basic Subscription
Right"). In addition, if a holder of Rights fully exercises his Basic
Subscription Right, then he may elect to purchase additional shares of Class A
Common Stock on a pro rata basis with other shareholders to the extent any
shares are available after all of the Basic Subscription Rights have been
exercised or declined and the Company has allocated Shares of Additional Common
Stock pursuant to the minimum purchase rights of the standby purchasers (the
"Oversubscription Right"). Reference is made to the Prospectus for a complete
description of the Basic Subscription Right and the Oversubscription Right.
The Company hereby appoints you as Subscription Agent (the "Subscription
Agent") for the Subscription Offer and agrees with you as follows:
1) As Subscription Agent, you are authorized and directed to:
(A) Issue the Subscription Rights Certificates in accordance with
this Agreement in the names of the holders of the Class A Common
Stock and Class B 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 Rights 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) Promptly after you receive the Record Shareholders List:
(a) mail or cause to be mailed, by first class mail, to
each holder of Class A Common Stock and Class B Common
Stock of record on the Record Date whose address of
record is within the United States and Canada, (i) a
Subscription Rights Certificate evidencing the Rights
to which such shareholder is entitled under the
Subscription Offer, (ii) a copy of the Prospectus,
(iii) the applicable Letter of Instructions, (iv) a
Notice of Guaranteed Delivery and (v) a return envelope
addressed to the Subscription Agent; and
(b) mail or cause to be mailed, by air mail, to each holder
of Class A Common Stock and Class B 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 (i) a copy of the Prospectus, (ii) a
Notice of Guaranteed Delivery and (iii) the applicable
Letter of Instructions. You shall refrain from mailing
Subscription Rights Certificates issuable to any holder
of Class A Common Stock and Class B 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 Rights
Certificates for the account of such shareholder
subject to such shareholder making satisfactory
arrangements with the Subscription Agent for the
exercise or other disposition of the Rights evidenced
thereby, and follow the instructions of such
shareholder for the exercise, sale or other disposition
of such Rights if such instructions are received at or
before 11:00 a.m., Eastern Standard Time, on the second
trading day before the Expiration Time.
(C) Mail or deliver a copy of the Prospectus (i) to each assignee or
transferee of Subscription Rights Certificates upon your
receiving appropriate documents to register the assignment or
transfer thereof and (ii) with certificates for shares of
Additional Common Stock when such are issued to persons other
than the registered holder of the Subscription Rights
Certificate.
(D) 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 Subscription Rights
Certificates and the Prospectus.
(E) Maintain accurate and complete records of any Rights transferred
pursuant to instructions contained on any Subscription Rights
Certificates that are duly executed and endorsed in accordance
with the terms of the Prospectus and the related Letter of
Instructions; and issue new Subscription Rights Certificates
pursuant to and in accordance with the instructions on such duly
executed and endorsed Subscription Rights Certificates.
(F) Subject to the next sentence, accept Subscriptions from
shareholders whose Subscription Rights 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. Upon receipt of such
affidavit and bond of indemnity and compliance with any other
applicable requirements, stop orders shall be placed on said
Subscription Rights Certificates and you shall withhold delivery
of the shares of Additional Common Stock subscribed for until
after the Subscription Rights Certificates have expired and it
has been determined that the Rights evidenced by the Subscription
Rights Certificates have not otherwise been purported to have
been exercised or otherwise surrendered.
(G) Accept Subscriptions, without further authorization or direction
from the Company, without procuring 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 without signatures of
co-fiduciaries, co-representatives or any other person:
(a) if the Subscription Rights 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 Rights 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 Rights 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 Rights 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 Rights
Certificates if submitted by a firm having membership in the New
York Stock Exchange or another national securities exchange or by
a commercial bank or trust company having an office 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.
(I) Accept Subscriptions even though unaccompanied by Subscription
Rights Certificates, under the circumstances and in compliance
with the terms and conditions set forth in the Prospectus under
the heading "The Offering - Subscription Procedures".
(J) Refer to the Company for specific instructions as to acceptance
or rejection, 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 Rights Certificates.
(K) Upon acceptance of a Subscription:
(a) Promptly following the Expiration Time you shall distribute
to the Company the funds in such account and issue
certificates for shares of Additional Common Stock issuable
with respect to Subscriptions which have been accepted.
(b) advise the Company daily via e-mail to and confirm by
facsimile to the attention of Xxxx Xxxxx (the "Company
Representative") at (000) 000-0000, with copies to Xxxx Xxx,
Esq. at (000) 000-0000, as to the total number of shares of
Additional Common Stock subscribed for, total number of
Rights partially exercised for and the amount of funds
received, with cumulative totals for each; and in addition
advise the Company Representative, by telephone at (317)
231-7934, confirmed by facsimile, 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., Eastern Standard Time, on the first full business day
following the Expiration Time, advise the Company
Representative in accordance with (b) above of the number of
shares subscribed for, the number of Subscription guarantees
received and the number of shares of Additional Common Stock
unsubscribed for.
(L) Upon completion of the Subscription Offer, you shall requisition
certificates from the Transfer Agent for the Common Stock for
shares of Additional Common Stock subscribed for.
2)(a)The Subscription Rights Certificates shall be issued in
registered form only. The Company shall appoint Computershare
Investor Services LLC as its Transfer Agent and Registrar for the
Subscription Rights Certificates, who shall keep books and
records of the registration and transfers and exchanges of
Subscription Rights Certificates (such books and records are
hereinafter called the "Subscription Rights Certificate
Register"). The Company shall promptly notify the Transfer Agent
and Registrar of the exercise of any Subscription Rights
Certificates. The Company shall promptly notify you of any change
in the Transfer Agent and Registrar of the Subscription Rights
Certificates.
(b) All Subscription Rights Certificates duly issued upon any
registration of transfer or exchange of Subscription Rights
Certificates in accordance with the limitations thereon shall be
the valid obligations of the Company, evidencing the same
obligations, and entitled to the same benefits under this
Agreement, as the Subscription Rights Certificates surrendered
for such registration of transfer or exchange.
(c) Any Subscription Rights Certificate endorsed in blank shall be
deemed not negotiable. The Rights may only be transferred or
exercised pursuant to the instructions of the beneficial owner
set forth on the applicable Subscription Rights Certificate and
in accordance with the Prospectus and the applicable Letter of
Instructions.
3) You will follow your regular internal procedures to attempt to reconcile
any discrepancies between the number of shares of Additional Common Stock that
any Subscription Rights Certificate may indicate are to be issued to a
shareholder and the number that the Record Shareholders List indicates may be
issued to such shareholder. 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 Additional Common Stock, if any,
you are authorized to issue. In the absence of such instructions, you are
authorized not to issue any shares of Additional Common Stock to such
shareholder.
4) You will examine the Subscription Rights 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 Letters of
Instructions. In the event you determine that any Subscription Rights
Certificate does not appear to you to have been properly completed or executed,
or where the Subscription Rights 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 internal 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
Subscription Rights Certificate which was delivered, duly dated and signed by an
authorized officer of the Company, indicating that any irregularity in such
Subscription Rights Certificate has been cured or waived and that such
Subscription Rights Certificate has been accepted by the Company. If any such
irregularity is neither corrected nor waived, you will return to the subscribing
shareholder (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 Rights
Certificates or by registered mail insured separately for the value of such
Subscription Rights Certificates) to such shareholder's address as set forth in
the Subscription any Subscription Rights Certificates surrendered in connection
therewith and any other documents received with such Subscription Rights
Certificates, and a letter of notice to be furnished by the Company explaining
the reasons for the return of the Subscription Rights Certificates and other
documents.
5) Each document received by you relating to your duties hereunder shall be
dated and time stamped when received.
6)(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 Subscription Offer. Subject to the terms and conditions of
this Agreement, you will request the Transfer Agent for the
Common Stock to 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 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 Rights
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) 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, sale,
transfer and delivery of Subscription Rights Certificates or
Additional Common Stock issued upon exercise of Subscription
Rights Certificates.
7) If certificates representing shares of Additional Common Stock are to be
delivered by you to a person other than the person in whose name a surrendered
Subscription Rights Certificate is registered, you will issue no certificate for
Additional Common Stock until the Subscription Rights 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
Additional Common Stock in a name other than that of the registered holder of
the Subscription Rights Certificate surrendered, or has established to your
satisfaction that any such tax or charge either has been paid or is not payable.
8) Should any issue arise regarding federal income tax reporting or
withholding, you will take such action as the Company instructs you in writing.
9) 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 Rights 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.
10) 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 Rights 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 Subscription Offer;
(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;
(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 Subscription Offer, 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 officers of 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 and you shall not be liable or
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with reasonable care by you
hereunder; and
(k) are not authorized, and shall have no obligation, to pay any
brokers, dealers, or soliciting fees to any person.
11) In the event any question or dispute arises with respect to the proper
interpretation of the Subscription Offer or your duties hereunder or the rights
of the Company or of any shareholders surrendering Subscription Rights
Certificates pursuant to the Subscription Offer, 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 shareholder 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 shareholders and all other
parties that may have an interest in the settlement.
12) 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.
13) 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 Exhibit A attached hereto, together with
reimbursement for out-of-pocket expenses, including reasonable fees and
disbursements of counsel (subject to advance approval by the Company) subject to
the receipt of reasonably satisfactory documentation thereof and in accordance
with Exhibit A.
14) The Company shall indemnify the Agent (and its officers, directors,
employees, agents, attorneys and affiliates) for, and hold it harmless against,
any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement,
cost or expense ("Loss") arising out of or in connection with its acceptance or
administration of, or performance under, this Agreement, including, without
limitation, the costs and expenses of defending itself against any Loss, unless
such Loss is the result of the Agent's gross negligence, bad faith or
intentional misconduct. The costs and expenses incurred in enforcing this right
of indemnification shall be paid by the Company. The provisions of this section
shall survive the termination of this Agreement or the resignation or removal of
the Agent.
15) 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.
16) The Company represents and warrants that (a) it is duly incorporated,
and validly existing under the laws of its jurisdiction of incorporation, (b)
the making and consummation of the Subscription Offer 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 articles of incorporation or bylaws of the Company or 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, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization and similar laws affecting
creditors' rights generally, and to general principles of equity (d) the
Subscription Offer 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 Subscription
Offer.
17) In the event that any claim of inconsistency between this Agreement and
the terms of the Subscription Offer arise, as they may from time to time be
amended, the terms of the Subscription Offer 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.
18) 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.
19) 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 Computershare Trust Company of New York, 00 Xxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Reorganization Department, or
to such other address as a party hereto shall notify the other parties.
20) 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.
21) 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
Agreement and your acceptance of the terms and conditions herein provided shall
constitute a binding Agreement between us.
Very truly yours,
UNION ACCEPTANCE CORPORATION
By:
-------------------------------------
Name:
Title:
Address for notices:
Accepted as of the date above first written:
COMPUTERSHARE TRUST COMPANY OF NEW YORK,
AS SUBSCRIPTION AGENT
By:
----------------------------------------
Name:
Title:
COMPUTERSHARE TRUST COMPANY OF NEW YORK
Exhibit A Schedule of Fees
Exhibit B Prospectus
Exhibit C Letter of Instruction
Exhibit D Notice of Guaranteed Delivery
Exhibit E Form of Subscription Rights Certificate
Exhibit A
COMPUTERSHARE TRUST COMPANY OF NEW YORK
Schedule of Fees
As
Subscription Agent
For
Union Acceptance Corporation
I. Set up and Administrative Fee $7,500
II. Processing Basic Subscriptions, each $14.00
III. Issuing split-ups of subscription certificates, each $10.00
IV. Issuing subscription certificates to record
date holders, each $5.00
V. Processing oversubscriptions, including proration
and refunds, each $10.00
VI. Subscriptions requiring additional handling (window items,
defective presentations, correspondence items, legal items,
and items not providing a taxpayer identification number),
each $10.00
VII. Processing Guarantee of Delivery items, each $10.00
VIII. Special Services By Appraisal
IX. Out-of-pocket Expenses (including but not limited to
postage, stationery, telephone, overnight couriers,
messengers, overtime, transportation, shipping and
trucking) Additional
X. Minimum Fee $15,000
