EXHIBIT 99.1
SUBSCRIPTION AGENT AGREEMENT
______ __, 2002
Computershare Trust Company of New York
Wall Xxxxxx Xxxxx
00 Xxxx Xxxxxx - 19th Floor
New York, New York 10005
Attn.: REORGANIZATION DEPARTMENT
Gentlemen:
Xxxxx & Xxxxx Company, a Delaware corporation (the "Company") is
issuing to the holders of record of its outstanding shares of Common Stock par
value $0.01 per share (the "Common Stock"), at the close of business on February
25, 2002 (the "Record Date"), the right to subscribe for and purchase (each a
"Right") shares of Common Stock (the "Additional Common Stock") at a purchase
price of $__.__ __ per share of Additional Common Stock (the "Subscription
Price"), payable by uncertified check, cashier's or certified check, or wire
transfer of immediately available funds, upon the terms and conditions set forth
herein (the "Subscription Offer"). The term "Subscribed" shall mean submitted
for purchase to the Company by a stockholder in accordance with the terms of the
Subscription Offer, and the term "Subscription" shall mean any such submission.
The Subscription Offer will expire at _____, New York City Time, on [_____ __,
2002] (the "Expiration Time"), unless the Company, in its discretion, 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 [JANUARY __, 2002]. Said Registration
Statement was declared effective on [___, 2002]. The terms of the Subscription
Offer are more fully described in the Prospectus forming part of the
Registration Statement as it was declared effective, and the accompanying
Subscription Certificate. Copies of the Prospectus, the Subscription
Certificate, the Letter of Instruction and the Notice of Guaranteed Delivery are
annexed hereto as Exhibit 1, Exhibit 2, Exhibit 3 and Exhibit 4, 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"). For each share of Common Stock
the Company will issue [ENTER
FRACTION] of a Right. The Subscription Certificates entitle the holders to
subscribe, upon payment of the Subscription Price, for shares of Additional
Common Stock at the rate of 1 share(s) for each Right (the "Basic Subscription
Privilege"). No fractional shares will be issued. Fractions will be rounded down
to the nearest whole share. Each Subscription Right also carries the right to
subscribe at the Subscription Price for a limited number of additional shares of
Common Stock equal to the greater of (A) fifty percent (50%) of the number of
full rights received and (B) 100 shares, to the extent available and subject to
proration (the "Over Subscription Privilege"). Reference is made to the
Prospectus for a complete description of the Basic Subscription Privilege and
the Over-Subscription Privilege.
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 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) Promptly after you receive the Record Stockholders List:
(a) mail or cause to be mailed, by first class mail, to each
holder of Common Stock of record on the Record Date whose
address of record is within the United States and Canada, (i)
a Subscription Certificate evidencing the Rights to which such
stockholder is entitled under the Subscription Offer, (ii) a
copy of the Prospectus, (iii) a Letter of Instruction, (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
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) 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
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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 the second trading day
before the Expiration Time.
(C) Mail or deliver a copy of the Prospectus with certificates for
shares of Additional Common Stock when such are issued to persons other than the
registered holder of the Subscription Certificate.
(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 Subsciption Certificates and the Prospectus.
(E) 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 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 Certificates and you shall withhold
delivery of the shares of Additional Common Stock Subscribed for until after the
Subscription Certificates have expired and it has been determined that the
Rights evidenced by the Subscription Certificates have not otherwise been
purported to have been exercised or otherwise surrendered.
(F) 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 Certificate is registered in the name of a
fiduciary and is executed by and the Additional Common Stock
is to be issued in the name of such fiduciary;
(b) if the Subscription Certificate is registered in the name of
joint tenants and is executed by one of the joint tenants,
provided the certificate representing the Additional Common
Stock is issued in the names of, and is to be delivered to,
such joint tenants;
(c) if the Subscription Certificate is registered in the name of a
corporation and is executed by a person in a manner which
appears or purports to be done in the capacity of an officer,
or agent thereof, provided the Additional Common Stock is to
be issued in the name of such corporation; or
(d) if the Subscription Certificate is registered in the name of
an individual and is executed by a person purporting to act as
such individual's executor,
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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.
(G) Accept Subscriptions not accompanied by Subscription
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.
(H) 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 "THE RIGHTS OFFERING --
Method of Exercising Rights".
(I) 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 Certificates.
(J) 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 by e-mail and confirm by facsimile
[TO THE ATTENTION OF INSERT] (the "Company Representative"),
with copies to Xxxxxxx X. Xxxxxxxx, 212-223-6700 as to the
total number of shares of Additional Common Stock Subscribed
for pursuant to the Basic Subscription Privilege and the
Over-Subscription Privilege, total number of Rights partially
Subscribed for, and the amount of funds received for each
including the Over Subscription Privilege, with cumulative
totals for each; and in addition advise the Company
Representative, by telephone _____ [TELEPHONE NUMBER],
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 Time, advise the Company
Representative in accordance with (b) above of the number of
shares Subscribed for, the number of Subscription guarantees
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received and the number of shares of Additional Common Stock
unsubscribed for.
(K) 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 Certificates shall be issued in
registered form only. The Company shall appoint and have in office at all times
a Transfer Agent and Registrar for the Subscription Certificates, satisfactory
to you, which shall keep books and records of the registration and transfers and
exchanges of Subscription Certificates (such books and records are hereinafter
called the "Subscription Certificate Register"). The Company shall promptly
notify the Transfer Agent and Registrar of the exercise of any Subscription
Certificates. The Company shall promptly notify you of any change in the
Transfer Agent and Registrar of the Subscription Certificates.
(b) All Subscription Certificates issued upon any
registration of transfer or exchange of Subscription Certificates shall be the
valid obligations of the Company, evidencing the same obligations, and entitled
to the same benefits under this Agreement, as the Subscription Certificates
surrendered for such registration of transfer or exchange.
(c) Any Subscription Certificate when duly endorsed in blank
shall be deemed not negotiable. The Subscription Certificates may only be
transferred or exercised pursuant to the instructions of the beneficial owner
set forth on the applicable Subscription 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 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 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
stockholder.
4) 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 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 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
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Certificate has been accepted by the Company. If any such irregularity is
neither corrected nor waived, you will return to the subscribing stockholder (at
your option by either first class mail under a blanket surety bond or insurance
protecting you and the Company from losses or liabilities arising out of the
non-receipt or nondelivery of Subscription Certificates or by registered mail
insured separately for the value of such Subscription Certificates) to such
stockholder's address as set forth in the Subscription any Subscription
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.
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 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 Certificates or Additional Common
Stock issued upon exercise of Subscription 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 Certificate is registered, you will issue no
certificate for Additional Common 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 Additional Common Stock in a name other than that of the
registered holder of the Subscription Certificate
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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 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 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;
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(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 stockholders surrendering Subscription
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 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.
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
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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 shall have been determined by a court of
competent jurisdiction to be a 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 Subscription Certificates 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
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 certificate 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, (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
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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,
XXXXX & XXXXX COMPANY
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:
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COMPUTERSHARE TRUST COMPANY OF NEW YORK
Exhibit 1 Prospectus
Exhibit 2 Subscription Certificates
Exhibit 3 Letter of Instruction
Exhibit 4 Notice of Guaranteed Delivery
EXHIBIT A
COMPUTERSHARE TRUST COMPANY OF NEW YORK
SCHEDULE OF FEES
AS
SUBSCRIPTION AGENT
================================================================================
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 $10.00
VI. Sale of Rights for holders, each $10.00
VII. Subscriptions requiring additional handling (window
items, defective presentations, correspondence items,
legal items, and items not providing a taxpayer
identification number), each $10.00
VIII. Processing Guarantee of Delivery items, each $10.00
IX. Special Services By Appraisal
X. Out-of-pocket Expenses (including but not limited to postage,
stationery, telephone, overnight couriers, messengers,
overtime, transportation, shipping and trucking, etc.) Additional
XI. Minimum Fee $20,000
