EXHIBIT 99.4
SUBSCRIPTION AGENT AGREEMENT
THIS AGREEMENT is entered into as of , 2000 by and between BPI
Packaging Technologies, Inc., a Delaware corporation (the "Company") and
American Stock Transfer and Trust Company (the "Subscription Agent").
WHEREAS, the Company intends to issue to the holders of its common shares,
$0.01 par value ("Common Shares"), as of a certain record date rights to
purchase up to an aggregate of 15,000,000 Common Shares (the "Rights"); and
WHEREAS, the Company desires the Subscription Agent to act on the Company's
behalf, and the Subscription Agent is willing so to act, in connection with the
issuance, distribution and transfer of the Rights, collection of funds from
Rights holders exercising Rights, sale of Rights, and collection and delivery of
funds from certain shareholders selling Rights, and issuance and delivery of
Common Shares upon the exercise of the Rights.
NOW THEREFORE, in consideration of the promises and mutual covenants set
forth herein, the parties agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms have the
following terms have the following meanings:
(a) "Basic Rights" means the right of Registered Holders to subscribe
for and purchase Common Shares through the exercise of Rights at the rate of
0.7 Common Shares for each Right held.
(b) "Common Shares" means the common shares, $0.01 par value, of the
Company.
(c) "Company" means BPI Packaging Technologies, Inc., a Delaware
corporation.
(d) "Expiration Date" means , 2000 or such other date as the
Company may determine.
(e) "Initial Issue Date" means , 2000.
(f) "Offering Period" means the period commencing on , 2000
and ending at 5:00 p.m. eastern time on the Expiration Date.
(g) "Oversubscription Rights" means the right of Record Date
Stockholders who fully exercise their Basic Rights to subscribe for and
purchase, subject to certain limitations and subject to allocation, any
Common Shares not acquired by other holders of Rights through the exercise
of such Basic Rights.
(h) "Prospectus" means the Company's prospectus, dated January , 2000,
pertaining to the Rights and Common Shares, as the same may from time to
time be supplemented or amended.
(i) "Record Date" means December 2, 1999.
(j) "Record Date Stockholder" means a holder of record of Common Shares
on the Record Date, as determined by the stock transfer books maintained by
the Subscription Agent in its capacity as Transfer Agent and Registrar of
the Common Shares.
(k) "Registered Holder" means each person in whose name a Subscription
Certificate shall be registered on the books maintained by the Subscription
Agent.
(l) "Rights "means the subscription rights issued by the Company
entitling Registered Holders to subscribe for and purchase Common Shares, at
the ratio of 0.7 Common Shares for each Right, and at a Subscription Price
of $0.04 per share.
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(m) "Subscription Agent" means American Stock Transfer and Trust
Company.
(n) "Subscription Certificate" means the certificate evidencing the
Rights.
(o) "Subscription Price" means $0.04 per share.
2. FORM OF SUBSCRIPTION CERTIFICATES. Each Subscription Certificate shall
be signed by duly authorized officers of the Company, dated the date of issue
(whether upon original issuance or in lieu of transferred, exchanged, mutilated,
destroyed, lost or stolen Subscription Certificates) and countersigned by the
Subscription Agent. All signatures may be facsimile signatures.
3. ISSUANCE OF SUBSCRIPTION CERTIFICATES. The Subscription Agent shall
issue and deliver (by first class United States mail, postage prepaid) to each
Record Date Stockholder a Subscription Certificate evidencing one Right per
Common Share owned of record by such Record Date Stockholder on the Record Date.
No Subscription Certificates shall be issued before or after the Offering
Period. All Subscription Certificates surrendered to the Subscription Agent for
transfer or upon exercise shall be canceled by the Subscription Agent and
thereafter shall be retained by the Subscription Agent for a period of not less
than seven years or such shorter period of time as the Company may permit. Upon
expiration of the retention period, the canceled Subscription Certificates shall
be delivered to the Company or destroyed by the Subscription Agent, as directed
by the Company.
4. DELIVERY OF PROSPECTUS AND OTHER DOCUMENTS. The Subscription Agent
shall deliver, along with originally issued Subscription Certificates and
Subscription Certificates issued upon transfer, a Prospectus, a letter from the
President of the Company to its shareholders, a return envelope Addressed to the
Subscription Agent, and such other documents and information as the Company may
provide. The Subscription Agent shall also provide copies of the Prospectus and
other documents prepared by the Company to Registered Holders, holders of Common
Shares and other persons upon request.
(a) The Company will provide the Subscription Agent with a sufficient
number of Prospectuses as the Subscription Agent may require.
(b) The Subscription Agent shall provide (at no additional expense to
the Company) a sufficient number of Subscription Certificates as required to
distribute to Record Date Stockholders, and to replace lost, destroyed,
mutilated or stolen Subscription Certificates.
(c) The Company has provided to the Subscription Agent the following
documents that the Subscription Agent shall deliver to brokers, dealers,
commercial banks, trust companies and other nominee holders of Subscription
Certificates: (i) a letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees; (ii) a letter to the clients of nominee
holders described in clause (i); and (iii) a Notice of Guarantee Delivery.
5. TRANSFERS. Subscription Certificates may be split-up, combined, or
exchanged at any time during the Offering Period for other Subscription
Certificates evidencing a like number of Rights to be issued to the Registered
Holder. No fractional Rights will be issued. Any Registered Holder desiring to
split-up, combine, or exchange one or more Subscription Certificates shall make
such request in writing delivered to the Subscription Agent and shall surrender
with such written request properly endorsed Subscription Certificates to be so
split-up, combined or exchanged. If required by the Prospectus, all signatures
on Subscription Certificates must be guaranteed by a financial institution that
is a participant in a recognized signature guarantee program. Upon any such
split-up, combination or exchange of a Subscription Certificate, the
Subscription Agent shall countersign and deliver to the Registered Holder a
Subscription Certificate or Subscription Certificates as so requested.
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6. EXERCISE. Rights may be exercised at any time during the Offering
Period upon the terms and conditions set forth in the Prospectus and in this
Agreement.
(a) Rights may be exercised by completing and executing the exercise
portion of the Subscription Certificate and delivering it to the
Subscription Agent along with payment of the Subscription Price for the
aggregate number of Common Shares subscribed prior to 5:00 p.m. time on the
Expiration Date.
(b) A subscription will be accepted by the Subscription Agent if, prior
to 5:00 p.m. eastern time on the Expiration Date, the Subscription Agent has
received a notice of guaranteed delivery of payment guaranteeing delivery
of: (i) payment of the full Subscription Price for the Common Shares
subscribed for in connection with the Basic Rights and any additional Common
Shares subscribed for pursuant to Oversubscription Rights (for Record Date
Stockholders); and (ii) a properly completed and executed Subscription
Certificate. The Subscription Agent will not honor a notice of guaranteed
delivery of payment unless a properly completed and executed Subscription
Certificate and full payment for the Common Shares is received by the
Subscription Agent by the close of business on the third NASDAQ trading day
after the Expiration Date (the "Protect Period").
(c) The Subscription Price shall be paid in United States dollars, by:
(i) bank draft drawn upon a United States bank or a postal, telegraphic or
express money order payable to the Subscription Agent; (ii) wire transfer of
funds to the account maintained by the Subscription Agent for such purpose:
Chase Manhattan Bank, ABA No. 021-000021, A/C ▇▇▇▇▇▇▇▇▇; or (iii) notice of
guaranteed delivery of payment, as discussed above.
(d) Once a Registered Holder has exercised Rights, such exercise may not
be revoked or rescinded.
(e) If a Registered Holder does not specify the number of Rights being
exercised on the Subscription Certificate, or if the payment by the
Registered Holder is not sufficient to pay the total purchase price for all
of the Common Shares that the Registered Holder indicated on the
Subscription Certificate, the Registered Holder will be deemed to have
exercised the maximum number of Rights that could be exercised for the
amount of the payment that it delivered to the Subscription Agent.
(f) If the Registered Holder's payment exceeds the Subscription Price
for all the Rights shown on its Subscription Certificate, its payment will
be applied, until depleted, to subscribe for Common Shares in the following
order: (i) to subscribe for the number of Common Shares, if any, that such
Registered Holder indicated on the Subscription Certificate that it wished
to purchase through its Basic Rights; and (ii) to subscribe for Common
Shares until its Basic Rights have been fully exercised. Any excess payment
remaining after the foregoing allocation will be returned to the Registered
Holder as soon as practicable by mail, without interest or deduction.
7. OVERSUBSCRIPTION RIGHTS. Common Shares not sold by the Company through
the exercise of Basic Rights will be offered, by means of Oversubscription
Rights, to the Record Date Stockholders who have exercised all of their Basic
Rights. Record Date Stockholders such as broker-dealers, banks, and other
professional intermediaries who hold shares on behalf of clients, may
participate in exercising the Oversubscription Rights for the client if the
client fully exercises all Basic Rights.
All subscriptions pursuant to the exercise of Oversubscription Rights will
be fulfilled out of the Common Shares not required to satisfy the Basic Rights
which are exercised. If the Common Shares are not sufficient to satisfy all
subscriptions pursuant to the Oversubscription Rights, the available Common
Shares will be allotted pro rata among those Registered Holders who exercised
the Oversubscription Rights, based on the number of Common Shares for which each
Registered Holder oversubscribed.
8. POWER OF ATTORNEY. The Company hereby constitutes and appoints the
Subscription Agent as the Company's true and lawful attorney in-fact, with full
power in such capacity to endorse, deposit, negotiate,
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and invest on behalf and for the account of the Company any checks, draft, wire
transfers or other payments received by the Subscription Agent as a payment of
the Subscription Price upon the exercise of Basic Rights and Oversubscription
Rights.
9. ESCROW AND INVESTMENT FUNDS. The Subscription Agent shall:
(a) Maintain a record of the date, amount of each of the Subscription
Price received upon the exercise, of Rights and the name and address of the
Registered Holder by whom or on whose behalf such payment was made.
(b) Aggregate all payments received upon the exercise of Basic Rights
and deposit such payments in one or more bank accounts, or invest such
payments in Treasury bills or other investments designated by the Company,
as soon as practicable after receipt of such payments.
(c) Aggregate all payments received upon the exercise of
Oversubscription Rights and deposit such payments in one or more bank
accounts, or invest such payments in Treasury bills or other investments
designated by the Company, as soon as practicable after receipt of such
payments.
(d) Keep payments received upon the exercise of Basic Rights from
payments received upon the exercise of the Oversubscription Rights.
(e) Keep all funds deposited and invested in accounts in the name of the
Company.
(f) Return as promptly as practicable to the Registered Holder who made
such payment, any payment of the Subscription Price not accepted by the
Company for any reason.
10. PAYMENT OF FUNDS TO THE COMPANY. Funds representing payment of the
Subscription Price for the exercise of Basic Rights shall be paid to the Company
by wire transfer to such account and according to such instructions as the
Company may deliver to the Subscription Agent in writing. Unless changed by
subsequent written instructions, the Subscription Agent shall follow the wiring
instructions attached to this Agreement as APPENDIX A. Such wire transfers of
funds to the Company shall be made from time to time at the request of the
Company, or if no request is made, each Friday during the Offering Period.
11. REPORTS. The Subscription Agent shall deliver daily to the Company a
written report showing the following: (i) the number of Basic Rights exercised
on such day, and the aggregate number of Oversubscription Rights exercised
through such date; (ii) the amount of funds received such day in payment of the
Subscription Price for the exercise of Basic Rights, and the aggregate amount of
funds on deposit or invested for the account of the Company from payment of the
Subscription Price for the exercise of the Oversubscription Rights through such
date; (iii) the number of Common Shares subscribed such day pursuant to the
Basic Rights, and the aggregate number of Common Shares subscribed through such
date pursuant to the Oversubscription Rights; and (iv) the aggregate amount of
funds received such day in payment of the Subscription Price and the aggregate
amount of funds on deposit or invested for the account of the Company from
payment of the Subscription Price for the exercise of the Oversubscription
Rights through such date.
12. ISSUANCE OF COMMON SHARES. Certificates for Common Shares subscribed
for pursuant to the Basic Rights will be delivered to the Registered Holders as
soon as practicable after receipt by the Subscription Agent of a duly completed
and exercised Subscription Certificate and payment in full for the Common Shares
pursuant to the Basic Rights. As soon as practicable after the Expiration Date
of the Rights, the Company will determine the number of Common Shares, if any,
which have been purchased by Registered Holders who have exercised their
Oversubscription Rights, and certificates representing the Common Shares so
purchased will be sent to the Registered Holders. If it is necessary to allocate
any available Common Shares among those Registered Holders exercising
Oversubscription Rights, overpayments for Common Shares not issued to such
Registered Holders will be promptly refunded, without interest.
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13. VALIDITY AND FORM OF SUBSCRIPTIONS. All questions concerning the
timeliness, validity, form and eligibility of any exercise of Rights will be
determined by the Company whose determination will be final and binding the
Company in its sole discretion may waive any defect or irregularity, or may
permit any defect or irregularity to be corrected, within such time as the
Company may determine, or the Company may reject, in whole or in part, the
purported exercise of any Right. Neither the Company nor the Subscription Agent
will be under any duty or obligation to give any notification or to permit the
cure of any defect or irregularity in connection with the submission of any
Subscription Certificate, the exercise or attempt to exercise any Right, or the
payment of the Subscription Price. Subscriptions through the exercise of Rights
will not be deemed to have been received or accepted by the Company until all
irregularities or defects have been waived by the Company or cured to the
satisfaction of, and within the time allotted by, the Company in its sole
discretion. The Subscription Agent will promptly notify the Company in writing
of all defects in the exercise of any Rights. Subscription Certificates and
funds received by the Subscription Agent that are not properly executed or
submitted, and as to which all irregularities have not been timely waived or
cured, shall be returned by the Subscription Agent to the Registered Holder who
submitted such Subscription Certificate and/or payment.
14. AMENDMENT, EXTENSION OR TERMINATION OF THE RIGHTS OFFER. The Company
reserves the right, in its sole discretion, to: (a) terminate the offer of
Common Shares through the Rights prior to delivery of the Common Shares for
which Registered Holders have subscribed pursuant to the exercise of Rights;
(b) extend the Expiration Date to a later date; or (c) amend or modify the terms
of the Rights. If the Company amends the terms of the Rights, an amended
Prospectus will be distributed to holders of record of Rights and to holders of
Rights who have previously exercised Rights. All holders of Rights who exercised
their Rights prior to such amendment or within four business days after the
mailing of the amended Prospectus will be given the opportunity to confirm the
exercise of their Rights by executing and delivering a consent form.
15. LOSS OR MUTILATION. Upon receipt by the Company and the Subscription
Agent of evidence, satisfactory to them, of the ownership and loss, theft,
destruction or mutilation of any Subscription Certificate, and in the case of
loss, theft or destruction, receipt of indemnity satisfactory to the Company and
the Subscription Agent, and in the case of mutilation upon surrender and
cancellation of the mutilated Subscription Certificate, the Subscription Agent
shaft deliver in place of such lost, stolen, destroyed or mutilated Subscription
Certificate a new Subscription Certificate representing an equal aggregate
number of Rights. Registered Holders requesting such substitute Subscription
Certificates shall also comply with such other reasonable regulations,
requirements or requests, and shall pay such reasonable charges, as the Company
or the Subscription Agent may prescribe.
16. LIABILITY OF SUBSCRIPTION AGENT. The Subscription Agent shall not, by
issuing and delivering Subscription Certificates or stock certificates
evidencing Common Shares, or receiving or holding funds for the benefit of the
Company, or by any other act under this Agreement, be deemed to make any
representations as to the validity or value or authorization of the Subscription
Certificates or the Rights represented thereby or the Common Shares issued upon
the exercise of Rights, or whether the Common Shares issued upon the exercise of
Rights are fully paid and nonassessable. The Subscription Agent shall not be:
(i) liable for any statement of fact made or contained in this Agreement or in
the Prospectus or in any documents prepared by the Company in connection with
the offer of Common Shares through the Rights; (ii) liable for any action taken,
suffered or omitted by it in reliance upon any Subscription Certificate or other
document or instrument believed by it in good faith to be genuine and to have
been signed or presented by the proper party or parties; (iii) responsible for
any failure on the part of the Company to comply with any of its covenants and
obligations contained in this Agreement or in the Subscription Certificates; or
(iv) liable for any act or omission in connection with the performance of its
duties, obligations, covenants and agreements under this Agreement, except for
the Subscription Agent's own negligence, willful breach or misconduct.
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17. INDEMNIFICATION. The Company agrees to indemnify and hold harmless the
Subscription Agent from and against any and all losses, expenses and
liabilities, including judgments, costs and reasonable attorneys' fees, arising
out of any act or omission of the Subscription Agent in the execution or
performance of its duties, obligations, covenants and agreements under this
Agreement, except for the Subscription Agent's own negligence, willful breach or
misconduct.
18. COMPENSATION FOR SERVICES. The Company agrees to pay the Subscription
Agent a fee of $15,000 for all services rendered by the Subscription Agent under
this Agreement, and to reimburse the Subscription Agent for all reasonable
out-of-pocket expenses incurred in performing its duties under this Agreement.
19. AMENDMENT; MODIFICATION; WAIVER. This Agreement may be amended,
waived, discharged or terminated in whole or in part only by a written
instrument signed by the party against whom enforcement of such amendment,
waiver, discharge or termination is sought. Notwithstanding the immediately
preceding sentence, the parties shall supplement or amend this Agreement to
conform to any amendments or changes that the Company may make to the terms and
conditions of the Rights and the offer of the Common Shares through the Rights.
20. NOTICES. All notices under this Agreement shall be in writing and
shall be sent by telecopier with a confirming copy sent by United States mail,
first class postage prepaid, or by air courier, delivery charges prepaid, to a
Registered Holder at the address shown on the registry books maintained by the
Subscription Agent, or to the parties at the following telecopier numbers and
addresses:
To the Company: BPI Packaging Technologies, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇. ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Chief Financial
Officer
To the Subscription Agent: American Stock Transfer & Trust Company
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier (▇▇▇) ▇▇▇-▇▇▇▇
Attention:
A notice sent by mail shall be deemed delivered on the fourth day after deposit
in the United States mail, postage prepaid and addressed as aforesaid. Any party
may change its address or telecopier number for notice by giving notice to the
other party in the manner provided in this Section.
21. DELAYS OR OMISSIONS. No delay or omission to exercise any right, power
or remedy accruing to any party to this Agreement, upon any breach or default of
any other party under this Agreement, shall impair any such right, power or
remedy; nor shall it be construed to be a waiver of, or an acquiescence in, any
such breach or default or any similar breach or default thereafter occurring;
nor shall any waiver of any single breach or default be deemed a waiver of any
other breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character, on the part of any party, of any
breach or default under this Agreement, or any waiver, on the part of any party,
of any provisions or conditions of this Agreement, must be made in writing and
shall be effective only to the extent specifically set forth in such writing.
All remedies, either under this Agreement or by law and otherwise afforded to
any party, shall be cumulative and not alternative.
22. UNENFORCEABLE PROVISIONS. If all or part of any one or more of the
provisions contained in this Agreement is for any reason held to be invalid,
illegal or unenforceable in any respect, the invalidity,
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illegality or unenforceability shall not affect any other provisions, and this
Agreement shall be equitably construed as if it did not contain the invalid,
illegal or unenforceable provision.
23. GENDER. Whenever appropriate in this Agreement, terms in the singular
form shall include the plural (and vice versa) and any gender form shall include
all others.
24. SECTION HEADINGS. Section headings are for the convenience of the
parties and do not form a part of this Agreement.
25. BINDING EFFECT; PARTIES. This Agreement shall be binding on the
Company, the Subscription Agent and their respective successors and assigns; and
nothing in this Agreement shall confer upon any other person or entity any
right, remedy or claim, or impose upon any other person any duty, liability or
obligation.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
BPI PACKAGING TECHNOLOGIES, INC.
By:
-----------------------------------
Its:
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AMERICAN STOCK TRANSFER & TRUST
COMPANY
By:
-----------------------------------
Its:
-----------------------------------
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APPENDIX A
Fleet Bank
Account No.: 9395351753
ABA No.: ▇▇▇▇▇▇▇▇▇
Account Name: BPI Packaging Technologies, Inc.
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