SUBSCRIPTION AGENCY AGREEMENT
This Subscription Agency Agreement (the "Agreement") is made
as of ------------, 1996 between The Bethlehem Corporation, a Pennsylvania
corporation (the "Company") and American Stock Transfer and Trust Company, as
subscription agent (the "Agent"). All terms not defined herein shall have the
meaning given in the prospectus (the "Prospectus") included in the (Registration
Statement on Form SB-2 (File No. 333-03875) filed by the Company with the
Securities and Exchange Commission on May 15, 1996, as amended by any amendment
filed with respect thereto (the "Registration Statement").
WHEREAS, the Company proposes to make a subscription offer by
issuing certificates or other evidences of transferrable subscription rights, in
the form designated by the Company (the "Subscription Certificates") to holders
of record of shares (each a "Shareholder") of its Common Stock, no par value
(the "Common Stock") as of a record date specified by the Company (the "Record
Date"), pursuant to which each shareholder will receive transferable
subscription rights (the "Rights") to subscribe for shares of Common Stock, as
described in and upon such terms as are set forth in the Prospectus included as
a part of the Registration Statement (the "Prospectus"); a final copy of the
Prospectus has been or, upon availability will promptly be, delivered to the
Agent; and
WHEREAS, the Company wishes the Agent to perform certain acts
on behalf of the Company, and the Agent is willing to so act, in connection with
the distribution of the Subscription Certificates and the issuance and exercise
of the Rights to subscribe for Common Stock as therein set forth, all upon the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual agreements set forth herein, the parties agree as follows:
1. APPOINTMENT. The Company hereby appoints the Agent to act as
subscription agent for the Company in connection with the distribution of
Subscription Certificates and the issuance and exercise of the Rights in
accordance with the terms set forth in this Agreement and the Prospectus and the
Agent hereby accepts such appointment.
2. FORM AND EXECUTION OF SUBSCRIPTION CERTIFICATES. (a) Each
Subscription Certificate shall be irrevocable. The Agent shall, in its capacity
as Transfer Agent of the Company, maintain a register of Subscription
Certificates and the holders of record thereof (each of whom shall be deemed a
"Shareholder" hereunder for purposes of determining the rights of holders of
Subscription
Certificates). Each Subscription Certificate shall, subject to the provisions
thereof, entitle the Shareholder in whose name it is recorded, or any transferee
designated therein, to the following:
(1) The right to purchase from the Company until the
Expiration Date, at the Subscription Price, a number of shares of Common Stock
equal to one share of Common Stock for each Right evidenced thereby (the "Basic
Subscription Privilege"); and
(2) The right to subscribe for additional shares of Common
Stock, subject to the availability of such shares and to the allotment of such
shares as may be available among Shareholders who exercise the Oversubscription
Privilege on the basis specified in the Prospectus; provided, however, that such
Shareholder has exercised the Basic Subscription Privilege in respect of all
Rights which he or she holds (the "Oversubscription Privilege").
3. RIGHTS AND ISSUANCE OF SUBSCRIPTION CERTIFICATES. (a) Each
Subscription Certificate shall evidence the Rights of the Shareholder therein
named to purchase shares of Common Stock upon the terms and conditions therein
and herein set forth.
(b) Upon the written authorization of the Company, signed by
any of its duly authorized officers, as to the Record Date, the Agent shall,
from a list of the Shareholders of Common Stock as of the Record Date to be
prepared by the Agent in its capacity as Transfer Agent of the Company, prepare
and record Subscription Certificates in the names of the Shareholders, setting
forth the number of Rights to subscribe for shares of the Common Stock
calculated on the basis of seven Rights for each ten shares of Common Stock
recorded on the books in the name of each such Shareholder as of the Record
Date. The number of Rights distributed to each Shareholder shall be rounded up
to the nearest whole number. No Subscription Certificate may be divided in such
a way as to permit the holder of such certificate to receive a greater number of
Rights than the number to which such Subscription Certificate entitles its
holder, except that a depository, bank, trust company, or securities broker or
dealer holding shares of Common Stock, on the Record Date for more than one
beneficial owner may, upon execution and delivery to the Agent of a
Certification and Request for Additional Rights, substantially in the form
attached hereto as Exhibit A, exchange its Subscription Certificate to obtain a
Subscription Certificate for the number of Rights to which all such beneficial
owners in the aggregate would have been entitled had each been a Holder on the
Record Date.
(c) Each Subscription Certificate shall be dated as of the
Record Date and shall be executed manually or by facsimile signature of a duly
authorized officer of the Agent. Upon the written advice, signed as aforesaid,
as to the effective date of the Registration Statement, the Agent shall promptly
countersign and deliver the Subscription Certificates, together with a copy of
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the Prospectus, instructions as to the use of the Subscription Certificates and
any other document as the Company deems necessary or appropriate, to all
Shareholders with record addresses in the United States (including its
territories and possessions and the District of Columbia). No Subscription
Certificate shall be valid for any purpose unless so executed. Delivery to
Shareholders shall be by first class mail (without registration or insurance).
4. EXERCISE. (a) Shareholders may acquire shares of Common Stock
pursuant to the Basic Subscription Privilege, and, if available, pursuant to the
Oversubscription Privilege by delivery to the Agent as specified in the
Prospectus of (i) the Subscription Certificate with respect thereto, duly
executed by such Shareholder in accordance with and as provided by the terms and
conditions of the Subscription Certificate, together with (ii) the purchase
price of $[ ] for each share of Common Stock subscribed for by exercise of such
Rights (the "Subscription Price"), in U.S. dollars by wire transfer or by money
order or check drawn on a bank in the United States, in each case payable to the
order of the Agent. In the case of holders of Rights that are held of record
through a Depository (as defined below), exercises of the Basic Subscription
Privilege (but not the Oversubscription Privilege) may be effected by
instructing the Depository to transfer Rights (such Rights "Depository Rights")
from the Depository's account of such holder to the Depository account of the
Agent, together with payment of the Subscription Price for each Underlying Share
subscribed for pursuant to the Basic Subscription Privilege. The
Oversubscription Privilege in respect of Depository Rights may not be exercised
through the Depository. The holder of a Depository Right may exercise the
Oversubscription Privilege in respect of such Depository Right by properly
executing and delivering to the Agent at or prior to 5:00 p.m., New York City
time, on the Expiration Date, a Nominee Holder Oversubscription Exercise Form,
substantially in the form attached hereto as Exhibit B or a Notice of Guaranteed
Delivery, together with payment of the appropriate Subscription Price for the
number of Underlying Shares for which the Oversubscription Privilege is to be
exercised. Payments will be deemed to have been received by the Agent only upon
(i) clearance on any uncertified check (for purposes hereof, an uncertified
check will be deemed to clear when the Agent has received good funds therefrom),
(ii) receipt by the Agent of any certified check or money order or (iii) receipt
of good funds by wire transfer to the Agent's account. Nominees, (as defined
below) who, on behalf of beneficial owners, exercise the Basic Subscription
Privilege and who wish to exercise the Oversubscription Privilege, must properly
execute and deliver to the Agent at or prior to 5:00 p.m., New York City time,
on the Expiration Date a Nominee Holder Oversubscription Exercise Form and a
Nominee Holder Certification, substantially in the form attached hereto as
Exhibit C.
(b) Rights may be exercised at any time after the date
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of issuance of the Subscription Certificates with respect thereto but no later
than 5:00 P.M. New York time on the Expiration Date. For the purpose of
determining the time of the exercise of any Rights, delivery of any material to
the Agent shall be deemed to occur when such materials are received at the
Shareholder Services Division of the Agent specified in the Prospectus. Once a
Shareholder has exercised the Basic Subscription Privilege or the
Oversubscription Privilege, such exercise may not be revoked.
(c) Notwithstanding the provisions of Section 4(a) and 4(b)
regarding delivery of an executed Subscription Certificate to the Agent prior to
5:00 P.M. New York time on the Expiration Date, if prior to such time the Agent
receives a Notice of Guaranteed Delivery by facsimile (telecopy) or otherwise
from a member firm of a registered national securities exchange or a member of
the National Association of Securities Dealers, Inc., or from a commercial bank
or trust company having an office or correspondent in the United States (each,
an "Eligible Institution") guaranteeing delivery of a properly completed and
executed Subscription Certificate, then such exercise of the Basic Subscription
Privilege and Oversubscription Privilege shall be regarded as timely, subject,
however, to receipt of (i) the duly executed Subscription Certificate by the
Agent within five NASDAQ trading days after the Expiration Date (the "Protect
Period") and (ii) payment in full of the subscription price (subject to the
right of the Company to waive advance payment in respect of the Oversubscription
Privilege as described above) prior to 5:00 p.m. on the Expiration Date.
(d) As soon as practicable after the valid exercise of Rights
(for purposes hereof an exercise will not be treated as valid until such time as
the Agent receives good funds), the Agent shall send to each exercising
Shareholder (an "Exercising Shareholder") (or, if shares of any Common Stock on
the Record Date are held by Depository Trust Company, Midwest Securities Trust
Company, Philadelphia Depository Trust Company (each a "Depository") or any
other depository or nominee (together with the Depositories, "Nominees"), to
such Nominee) the share certificates representing the shares of Common Stock
acquired pursuant to the Basic Subscription Privilege. As soon as practicable
after the Expiration Date and after all pro rations and adjustments contemplated
by the terms of the Rights Offering have been effected, the Agent shall send to
each Exercising Shareholder or Nominee who exercises an Oversubscription
Privilege certificates representing the shares of Common Stock acquired pursuant
to the Oversubscription Privilege, along with a letter explaining the allocation
of shares of Common Stock pursuant to the Oversubscription Privilege. (Any
excess payment to be refunded by the Company to an Exercising Shareholder who is
not allocated the full amount of shares of Common Stock subscribed for pursuant
to the Oversubscription Privilege, shall be mailed by the Agent to him or her
without interest or deduction as soon as practicable after the Expiration Date
and after all prorations and adjustments
4
contemplated by the terms of the Rights Offering have been effected.)
(e) If an exercising Rights holder has not indicated the
number of Rights being exercised, or if the Subscription Price payment forwarded
by such holder to the Agent is not sufficient (subject to the fifth sentence of
Section 4(a) above) to purchase the number of shares subscribed for, the Rights
holder will be deemed to have exercised the Basic Subscription Privilege with
respect to the maximum number of whole Rights which may be exercised for the
Subscription Price delivered to the Agent and, to the extent that the
Subscription Price payment delivered by such holder exceeds the Subscription
Price multiplied by the number of Rights exercised (such excess being the
"Subscription Excess"), the holder will be deemed to have exercised its
Oversubscription Privilege to purchase, to the extent available, a number of
whole Underlying Shares equal to the quotient obtained by dividing the
Subscription Excess by the Subscription Price.
5. TRANSFER OR SALE OF RIGHTS. Any Shareholder may transfer (i) all of
the Rights evidenced by a Subscription Certificate by properly endorsing the
Subscription Certificate or (ii) some of the Rights evidenced by a Subscription
Certificate (but not fractional Rights) by delivering to the Agent such
Subscription Certificate properly endorsed for transfer, with instructions to
register the Rights to be transferred in the name of the transferee (and to
issue a new Subscription Certificate to the transferee evidencing such
transferred Rights). In such event, the Agent shall issue a new Subscription
Certificate evidencing the balance of the Rights to the Shareholder or, if so
instructed, to an additional transferee. For purposes of this Agreement the term
"properly endorsed for transfer" shall mean that each and every signature of a
registered Shareholder or Shareholders or assigns shall be made and guaranteed
by an Eligible Institution. All transfer taxes and other governmental charges
arising from a transfer shall be paid by the transferring Shareholder.
6. VALIDITY OF SUBSCRIPTIONS. Irregular subscriptions not
otherwise covered by specific instructions herein shall be submitted to an
appropriate officer of the Company and handled in accordance with his or her
instructions. Such instructions will be documented by the Agent indicating the
instructing officer and the date thereof.
7. OVERSUBSCRIPTION. If, after allocation of shares of Common
Stock to Exercising Shareholders, there remain shares not subscribed for through
the Basic Subscription Privilege (the "Excess Shares"), then the Agent shall
allocate such Excess Shares to Shareholders who have exercised all the Rights
initially issued to them and who wish to acquire more than the number of shares
for which the Rights issued to them are exercisable. If the number of
5
shares for which the Oversubscription Privilege has been exercised is greater
than the Excess Shares, the Agent shall allocate pro rata the Excess Shares
among the Shareholders exercising the Oversubscription Privilege based on the
number of shares each Shareholder exercising the Oversubscription Privilege has
purchased pursuant to the Basic Subscription Privilege; provided, however, that
if such pro rata allocation results in any Shareholder being allocated a greater
number of Excess Shares than such Shareholder subscribed for pursuant to the
exercise of such Shareholder's Oversubscription Privilege, then such Shareholder
will be allocated only such number of Excess Shares as such Shareholder
subscribed for and the remaining Excess Shares will be allocated among all other
Shareholders exercising the Oversubscription Privilege. The percentage of Excess
Shares each oversubscribing Shareholder may acquire will be rounded up or down
to result in delivery of whole shares of Common Stock. The Agent shall advise
the Company immediately upon the completion of the allocation set forth above as
to the total number of shares subscribed and distributable.
8. DELIVERY OF CERTIFICATES. The Agent will deliver (i) certificates
representing those shares of Common Stock purchased pursuant to exercise of the
Basic Subscription Privilege as soon as practicable after the corresponding
Rights have been validly exercised and full payment for such shares has been
received and cleared and (ii) certificates representing those shares purchased
pursuant to the exercise of the Oversubscription Privilege as soon as
practicable after the Expiration Date and after all prorations and adjustments
contemplated by the Rights Offering have been effected, but in no event shall
share certificates be delivered after the time period set forth in Section 4(d)
hereof. The Agent will include a copy of the Prospectus with each certificate
delivered, unless a Prospectus was previously delivered to such Shareholder.
9. HOLDING PROCEEDS OF RIGHTS OFFERING IN ESCROW. (a) All
proceeds received by the Agent from Shareholders in respect of the exercise of
Rights shall be held by the Agent, on behalf of the Company, in a segregated,
interest-bearing escrow account (the "Escrow Account"). As soon as practicable
after the receipt of any proceeds in respect of the exercise of the Basic
Subscription Privilege, the Agent shall deliver all such proceeds to the
Company, together with any interest thereon.
(b) The Agent shall deliver all proceeds received in respect
of the exercise of the Oversubscription Privilege (including interest earned
thereon) to the Company as promptly as practicable, but in no event later than
10 business days after all prorations and adjustments contemplated by the terms
of the Rights Offering have been effected. Pending delivery to the Company as
provided herein or disbursement in the manner described in Section 4(d) above,
funds held in the Escrow Account shall be invested by the Agent at the direction
of the Company.
6
10. REPORTS. Daily, during the period commencing with the mailing of
the Subscription Certificates and ending on the Expiration Date (and in the case
of guaranteed deliveries pursuant to Section 4(c), the period ending five AMEX
trading days after the Expiration Date) the Agent will report by telephone or
telecopier (by 12:00) Noon, New York time), confirmed by letter, to an officer
of the Company, data regarding Rights exercised, the total number of shares of
Common Stock subscribed for, and payments received therefor, bringing forward
the figures from the previous day's report in each case so as to show the
cumulative totals and any such other information as may be reasonably requested
by the Company.
11. LOSS OR MUTILATION; CANCELLATION. (a) If any Subscription
Certificate is lost, stolen, mutilated or destroyed, the Agent may, on such
terms which will indemnify and protect the Company and the Agent as the Agent
and the Company shall agree (which shall, in the case of a mutilated
Subscription Certificate include the surrender and cancellation thereof), issue
a new Subscription Certificate of like denomination in substitution for the
Subscription Certificate so lost, stolen, mutilated or destroyed.
(b) All Subscription Certificates surrendered for the purpose
of exercise, exchange, substitution or transfer shall be canceled by the Agent,
and no Subscription Certificates shall be issued in lieu thereof except as
expressly permitted by provisions of this Agreement. The Company shall deliver
to the Agent for cancellation and retirement, and the Agent shall so cancel and
return, any other Subscription Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Agent shall deliver all canceled
Subscription Certificates to the Company, or shall, at the written request of
the Company, destroy such canceled Subscription Certificates, and in such case
shall deliver a certificate of destruction thereof to the Company.
12. COMPENSATION FOR SERVICES. The Company agrees to pay to the Agent
$[ ] for services performed hereunder, which services include any other services
not described herein but customarily performed by the Subscription/Escrow Agent
in a rights offering. The Company further agrees that it will reimburse the
Agent for its reasonable out-of-pocket expenses incurred in the performance of
its duties as such.
13. INSTRUCTIONS AND INDEMNIFICATION. The Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms and
conditions:
(a) The Agent shall be entitled to rely upon any instructions
or directions furnished to it by an appropriate officer of the Company, whether
in conformity with the provisions of this Agreement or constituting a
modification hereof or a
7
supplement hereto. Without limiting the generality of the foregoing or any other
provision of this Agreement, the Agent, in connection with its duties hereunder,
shall not be under any duty or obligation to inquire into the validity or
invalidity or authority or lack thereof of any instruction or direction from an
appropriate officer of the Company which conforms to the applicable requirements
of this Agreement and which the Agent reasonably believes to be genuine and
shall not be liable for any delays, errors or loss of data occurring by reason
of circumstances beyond the Agent's control, including, without limitation, acts
of civil or military authority, national emergencies, labor difficulties, fire,
flood, catastrophe, acts of God, insurrection, war, riots or failure of the
mails, transportation, communication or power supply.
(b) The Company will indemnify the Agent for, and hold it
harmless against, any liability and expense which may arise out of or in
connection with the services described in this Agreement or the instructions or
directions furnished to the Agent relating to this Agreement by an appropriate
officer of the Company; provided, however, that such agreement does not extend
to, and the Agent shall not be indemnified or held harmless with respect to any
liability or expense which shall arise out of, or be incurred or suffered as a
result of, the Agent's negligence, bad faith, misconduct or breach of this
Agreement. The Company shall not indemnify the Agent with respect to any claim
or action settled without its consent, which consent shall not be unreasonably
withheld.
(c) The Agent will promptly notify the Company of any claim
with respect to which it may seek indemnity hereunder. The Company shall be
entitled to participate at its own expense in the defense of any suit brought to
enforce any such claim, and if the Company so elects, the Company shall assume
the defense of any such suit. 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 the Agent retains, so long as the Company shall
retain counsel reasonably satisfactory to the Agent, to defend such suit.
14. CHANGES IN SUBSCRIPTION CERTIFICATE. The Agent may, without the
consent or concurrence of the Shareholders in whose names Subscription
Certificates are registered, by supplemental agreement or otherwise, concur with
the Company in making any changes or corrections in a Subscription Certificate
that it shall have been advised by counsel (who may be counsel for the Company)
is appropriate to cure any ambiguity or to correct any defective or inconsistent
provision or clerical omission or mistake or manifest error therein or herein
contained, and which shall not be inconsistent with the provision of the
Subscription Certificate except insofar as any such change may confer additional
rights upon the Shareholders.
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15. ASSIGNMENT, DELEGATION. (a) Neither this Agreement nor any
rights or obligations hereunder may be assigned or delegated by either party
without the written consent of the other party.
(b) This Agreement shall inure to the benefit of and be
binding upon the parties and their respective permitted successors and assigns.
Nothing in this Agreement is intended or shall be construed to confer upon any
other person any right, remedy or claim or to impose upon any other person any
duty, liability or obligation.
16. GOVERNING LAW. The validity, interpretation and performance of
this Agreement shall be governed by the law of the State of New York.
17. SEVERABILITY. The parties hereto agree that if any of the
provisions contained in this Agreement shall be determined invalid, unlawful or
unenforceable to any extent, such provisions shall be deemed modified to the
extent necessary to render such provisions enforceable. The parties hereto
further agree that this Agreement shall be deemed severable, and the invalidity,
unlawfulness or enforceability of any term or provision thereof shall not affect
the validity, legality or enforceability of this Agreement or of any other term
or provision hereof.
18. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
19. CAPTIONS. The captions and descriptive headings herein are for
the convenience of the parties only. They do not in any way modify, amplify,
alter or give full notice of the provisions hereof.
20. FACSIMILE SIGNATURES. Any facsimile signature of any party
hereto shall constitute a legal, valid and binding execution hereof by such
party.
21. FURTHER ACTIONS. Each party agrees to perform such further
acts and execute such further documents as are necessary to effect the purposes
of this Agreement.
22. ADDITIONAL PROVISIONS. Except as specifically modified by this
Agreement, the Agent's rights and responsibilities set forth in the Agreement
for Stock Transfer Services between the Company and the Agent are hereby
ratified and confirmed and continue in effect.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
9
AMERICAN STOCK TRANSFER & TRUST
COMPANY
By:
----------------------------
Name:
Title:
THE BETHLEHEM CORPORATION
By:
----------------------------
Name:
Title:
10
EXHIBIT A
CERTIFICATION AND REQUEST FOR ADDITIONAL RIGHTS
To the Subscription Agent:
The undersigned hereby certifies that it is a broker-dealer registered with
the Securities and Exchange Commission, commercial bank or trust company,
securities depository or participant therein, or nominee therefor, holding of
record ----------- shares of Common Stock, no par value per share (the "Common
Shares"), of The Bethlehem Corporation (the "Company") on behalf of ----------
beneficial owners as of the close of business on -------------, 1996, the Record
Date for the offering by the Company of ------------ shares of Common Stock
pursuant to transferable subscription rights (the "Rights") being distributed to
record holders of shares of Common Stock, all as described in a Prospectus dated
-------------, 1996 (the "Prospectus"), a copy of which the undersigned has
received. Seven Rights are being distributed for each ten shares of Common Stock
held of record as of the close of business on the Record Date, and any
fractional Right will be rounded up to the nearest whole number. The undersigned
further certifies that --------- beneficial owners on whose behalf it held, as
of the close of business on the Record Date, --------- shares of Common Stock
registered in the name of the undersigned are each entitled to an additional
Right in accordance with the principle that any fractional Right to which a
beneficial owner would otherwise be entitled should be rounded up to the nearest
whole number. Accordingly, the undersigned requests that, upon surrender of its
Subscription Certificate evidencing --------- Rights, a Subscription Certificate
evidencing --------- Rights (including --------- additional Rights) be issued.
The undersigned further certifies that each such beneficial owner is a bona fide
beneficial owner of shares of Common Stock, that such beneficial ownership is
reflected on the undersigned's records and that all shares of Common Stock
which, to the undersigned's knowledge, are beneficially owned by any such
beneficial owner through the undersigned have been aggregated in calculating the
foregoing. The undersigned agrees to provide the Company or its designee with
such additional information as the Company deems necessary to verify the
foregoing.
------------------------
Name of Record Holder
By:
---------------------
Name:
Title:
Address:
Telephone Number:
Date: ,1996
---------------
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EXHIBIT B
THE BETHLEHEM CORPORATION RIGHTS OFFERING
NOMINEE HOLDER OVERSUBSCRIPTION EXERCISE FORM PLEASE COMPLETE ALL
APPLICABLE INFORMATION
By Mail, Express Mail or Overnight:
American Stock Transfer & Trust Company
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
THIS FORM IS TO BE USED ONLY BY NOMINEE HOLDERS TO EXERCISE
THE OVERSUBSCRIPTION PRIVILEGE IN RESPECT OF RIGHTS WITH RESPECT TO WHICH THE
BASIC SUBSCRIPTION PRIVILEGE WAS EXERCISED TO THE FULLEST EXTENT POSSIBLE AND
DELIVERED THROUGH THE FACILITIES OF A COMMON DEPOSITORY. ALL OTHER EXERCISES OF
OVERSUBSCRIPTION PRIVILEGES MUST BE EFFECTED BY THE DELIVERY OF SUBSCRIPTION
CERTIFICATES.
THE TERMS AND CONDITIONS OF THE RIGHTS OFFERING ARE SET FORTH
IN THE COMPANY'S PROSPECTUS DATED--------------, 1996 (THE "PROSPECTUS") AND ARE
INCORPORATED HEREIN BY REFERENCE. COPIES OF THE PROSPECTUS ARE AVAILABLE UPON
REQUEST FROM THE INFORMATION AGENT AT THE ADDRESS AND TELEPHONE NUMBER LISTED
BELOW:
▇▇▇▇▇▇ & COMPANY
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
TELEPHONE: (▇▇▇) ▇▇▇-▇▇▇▇
THIS FORM OR A NOTICE OF GUARANTEED DELIVERY MUST BE RECEIVED BY THE
SUBSCRIPTION AGENT WITH PAYMENT IN FULL BY 5:00 P.M., NEW YORK CITY TIME, ON [
], 1996 (THE "EXPIRATION DATE").
1. The undersigned hereby certifies to the Company and the Subscription
Agent that it is a participant in -------------------------[Name of Depository]
(the "Depository") and that it has either (1) exercised the Basic Subscription
Privilege in respect of Rights and delivered such exercised Rights to the
Subscription Agent by means of transfer to the Depository Account of the Company
or (ii) delivered to the Subscription Agent a Notice of Guaranteed Delivery in
respect of the exercise of the Basic Subscription Privilege and will deliver the
Rights called for in and in accordance with such Notice of Guaranteed Delivery
to the Subscription Agent by means of transfer to such Depository Account of the
Company.
2. The undersigned hereby exercises the Oversubscription Privilege to
purchase, to the extent available, ------- shares of Common Stock and certifies
to the Company and the Subscription Agent by execution of a Nominee Holder
Certification that such Oversubscription Privilege is being exercised for the
account or accounts of persons (which may include the undersigned) on whose
behalf all Basic Subscription Rights have been exercised to the fullest extent
possible.
3. The undersigned understands that payment of the Subscription Price
of $[ ] per share for each share of Common Stock subscribed for pursuant to the
Oversubscription Privilege must be received by the Subscription Agent at or
before 5:00 p.m., New York City time, on the Expiration Date and represents that
such payment, in the aggregate amount of $------------, either (check
appropriate box):
/ / has been or is being delivered to the Subscription Agent
[pursuant to the Notice of Guaranteed Delivery referred to above]
or
/ / is being delivered to the Subscription Agent herewith
or
/ / has been delivered separately to the Subscription Agent;and, in the case of
funds not delivered pursuant to a Notice of Guaranteed Delivery, is or was
delivered in the manner set forth below (check the appropriate box and complete
information relating thereto):
/ / wire transfer of funds
-- name of transferor institution----------------------------------------------
-- date of transfer------------------------------------------------------------
-- confirmation number (if available)------------------------------------------
/ / uncertified check
/ / certified check
/ / bank draft (cashier's check)
------------------------------
Basic Subscription Confirmation Number
------------------------------
Depository Participant Number
------------------------------
Name of Depository Participant
By
----------------------------
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Name:
Title:
Dated: , 1996
---------------
PARTICIPANTS EXERCISING THE OVERSUBSCRIPTION PRIVILEGE PURSUANT HERETO MUST
SEPARATELY SUBMIT A NOMINEE HOLDER CERTIFICATION TO THE SUBSCRIPTION AGENT. SUCH
NOMINEE HOLDER CERTIFICATIONS ARE AVAILABLE FROM THE SUBSCRIPTION AGENT.
3
EXHIBIT C
THE BETHLEHEM CORPORATION
NOMINEE HOLDER CERTIFICATION
The undersigned, a bank, broker or other nominee holder of Rights
("Rights") to purchase shares of Common Stock, no par value per share ("Common
Stock"), of The Bethlehem Corporation (the "Company") pursuant to the rights
offering (the "Rights Offering") described and provided for in the Company's
prospectus dated -----------, 1996, (the "Prospectus"), hereby certifies to the
Company and to American Stock Transfer & Trust Company, as Subscription Agent
for such Rights Offering, that (1) the undersigned has exercised, on behalf of
beneficial owners thereof, (which may include the undersigned), the number of
Rights specified below pursuant to the Basic Subscription Privilege (as defined
in the Prospectus) on behalf of beneficial owners of Rights who have subscribed
for the purchase of additional shares of Common Stock pursuant to the
Oversubscription Privilege (as defined in the Prospectus); (2) the undersigned
has listed below each such exercised Basic Subscription and the corresponding
Oversubscription Privilege (without identifying any such beneficial owner) and
(3) each such beneficial owner's Basic Subscription has been exercised to the
fullest extent possible:
Number of Number of
Rights Rights
Exercised Exercised
Pursuant Pursuant Estimated
to Basic to Over-subscription Rights
Subscription subscription Certificate
Privilege Privilege Number
------------ ----------------------- ----------
1.------------ ----------------------- ----------
2.------------ ----------------------- ----------
3.------------ ----------------------- ----------
4.------------ ----------------------- ----------
5.------------ ----------------------- ----------
6.------------ ----------------------- ----------
7.------------ ----------------------- ----------
8.------------ ----------------------- ----------
9.------------ ----------------------- ----------
10.------------ ----------------------- ----------
(Attach additional beneficial owner list if necessary)
----------------------------
Name of Nominee Holder
-----------------------------------------------
Depository Participant Number (if applicable)
---------------------------------------------
Address
Basic Subscription
-----------------------------------------------
Confirmation Number(s) By:
------------------------
Name: (Date)
Title
Telephone Number:
2
