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Exhibit 99.3
SUBSCRIPTION AGENCY AGREEMENT
SUBSCRIPTION AGENCY AGREEMENT (this "Agreement"), dated as of
______ , 1997, by and between Hanover Direct, Inc., a Delaware corporation
(the "Company"), and American Stock Transfer and Trust Company, as Subscription
Agent (the "Subscription Agent").
WHEREAS, the Company has caused a Registration Statement on
Form S-3 (Registration No. 333- ) under the Securities Act of 1933, as
amended (the "Act"), to be filed with the Securities and Exchange Commission
(the "Commission") relating to a proposed distribution by the Company of
transferable subscription rights (the "Rights") and sale of newly issued shares
of the Company's Common Stock, par value $.66 2/3 per share (the "Common
Stock"), upon the exercise of such Rights (such Registration Statement, in the
form in which it first becomes effective under the Act, and as it may thereafter
be amended from time to time, is referred to herein as the "Registration
Statement"; the distribution of the Rights and the sale of shares of Common
Stock upon the exercise thereof as contemplated by the Registration Statement is
referred to herein as the "Rights Offering");
WHEREAS, the Rights will be distributed to holders of record
of shares of Common Stock, the Series B Convertible Additional Preferred Stock,
par value $.01 and stated value $10.00 per share (the "Series B Preferred
Stock"), as of the close of business on , , 1997 (the "Record
Date") at a rate of .3824 Rights for each share of Common Stock and .5742 Rights
for each share of Series B Preferred Stock held on the Record Date;
WHEREAS, the Company has authorized the issuance of an
aggregate number of authorized and unissued or treasury shares of Common Stock
(the "Underlying Shares") equal to the aggregate number of rights to be
distributed pursuant to the Rights Offering;
WHEREAS, Rights holders will be entitled to subscribe to
purchase at a per share price of $.90 (the "Subscription Price") one Underlying
Share for each Right held (the "Basic Subscription Privilege");
WHEREAS, Rights holders will also be entitled to subscribe to
purchase any underlying shares that are not subscribed for through the Basic
Subscription Privilege, subject to proration by the Company, if necessary (the
"Oversubscription Privilege"). The right to subscribe for such underlying shares
pursuant to the Oversubscription Privilege is not transferrable.
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WHEREAS, Richemont S.A. ("Richemont") will be entitled
to subscribe to purchase any Underlying Shares that are not subscribed for
through the Basic Subscription Privilege or the Oversubscription Privilege (the
"Standby Purchase Commitment"); and
WHEREAS, the Company desires the Subscription Agent to act on
its behalf in connection with the Rights Offering as set forth herein, and the
Subscription Agent is willing so to act;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereto hereby agree as follows:
SECTION 1. Appointment of Subscription Agent. The Company
hereby appoints the Subscription Agent to act as agent for the Company in
accordance with the instructions set forth in this Agreement, and the
Subscription Agent hereby accepts such appointment. The Company may from time to
time appoint such co-subscription agents as it may deem necessary or desirable.
SECTION 2. Issue of Securities.
(a) The Company has authorized the issuance of the Rights and,
following the effectiveness of the Registration Statement and the Record Date,
will issue such Rights to holders of record of shares of Common Stock as of the
close of business on the Record Date as contemplated by the Registration
Statement. The Company will promptly notify the Subscription Agent upon the
effectiveness of the Registration Statement. As transfer agent and registrar for
the shares of Common Stock and Series B Preferred Stock, the Subscription Agent
shall provide such assistance as the Company may require in order to effect the
distribution of the Rights to holders of record of shares of Common Stock and
Series B Preferred Stock as of the close of business on the Record Date,
including assistance in determining the number of Rights to be distributed to
each such record holder and assistance in distributing the Subscription
Certificates (as defined in Section 3(b) hereof) evidencing the Rights and all
other ancillary documents.
(b) The Company has authorized the issuance of and will hold
in reserve the Underlying Shares, and upon the valid exercise of Rights, the
Company will issue Underlying Shares to validly exercising Rights holders as set
forth in the Registration Statement.
SECTION 3. Subscription Privileges; Form of Subscription
Certificates.
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(a) Pursuant to the Basic Subscription Privilege, each Right
grants to the holder thereof, upon the valid exercise of the Right pursuant to
Section 7 hereof, the right to purchase from the Company one Underlying Share
for the Subscription Price.
(b) Pursuant to the Oversubscription Privilege, each Right
grants to the holder thereof, upon the valid exercise of the Right pursuant to
Section thereof, the right to purchase from the Company Underlying Shares to the
extent that any Underlying Shares are not subscribed for through the Basic
Subscription Privilege, subject to proration by the Company under certain
circumstances.
(c) The Standby Purchase Commitment grants to Richemont the
right to purchase from the Company Underlying Shares to the extent that any
Underlying Shares are not subscribed for through the Basic Subscription
Privilege, or the Oversubscription Privilege.
(d) The Rights shall be evidenced by subscription certificates
(the "Subscription Certificates"). The Subscription Certificates (and the form
of election to exercise or transfer rights to be printed on the reverse thereof)
shall be substantially in the form attached as Exhibit A hereto. The
Subscription Certificates shall be fully transferable.
SECTION 4. Signature and Registration.
(a) The Subscription Certificates shall be executed on behalf
of the Company by its President and Chief Executive Officer and by its Secretary
by facsimile signature. Any Subscription Certificate may be signed on behalf of
the Company by any person who, at the actual date of the execution of such
Subscription Certificate, shall be a proper officer of the Company to sign such
Subscription Certificate, even if at the date of the execution of this Agreement
or the date of the actual issuance of such certificate any such person is not
such an officer.
(b) The Subscription Agent will keep or cause to be kept, at
its principal offices in the State of New York, books for registration and
transfer of the Rights issued hereunder. Such books shall show the names and
addresses of the respective holders of the Rights and the number of Rights
evidenced by each outstanding Subscription Certificate.
SECTION 5. Division, Combination and Exchange of Subscription
Certificates; Mutilated, Destroyed, Lost or Stolen Subscription Certificates.
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(a) Subject to the provisions of Section 9 hereof, any
Subscription Certificate, or any two or more Subscription Certificates, may be
divided, combined or exchanged for any number of Subscription Certificates or
for a single Subscription Certificate of different denomination; provided,
however, that the aggregate number of Rights evidenced by the Subscription
Certificate or Subscription Certificates so issued shall not exceed the
aggregate number of Rights evidenced by the Subscription Certificate or
Subscription Certificates surrendered in exchange therefor. The foregoing
notwithstanding, a bank, trust company, securities dealer or broker holding
shares of Common Stock on the Record Date for more than one beneficial owner
may, by submitting a written request by 5:00 p.m., New York City time
on , , 1997 and upon proper showing to the
Subscription Agent, exchange its Subscription Certificate to obtain Subscription
Certificates for the number of Rights which each such beneficial owner would
have been entitled to receive pursuant to Section 9(a) hereof had each such
beneficial owner been the holder of record of such beneficial owner's shares on
the Record Date; provided, however, that the Company reserves the right to
refuse to issue any such Subscription Certificate or Subscription Certificates
if such issuance would be inconsistent with the principle that each beneficial
owner's holding will be rounded up to the nearest whole Right. No Subscription
Certificates evidencing fractional Rights will be issued upon division,
combination or exchange of other Subscription Certificates, and any instructions
to divide, combine or exchange Subscription Certificates which would result in
the issuance of Subscription Certificates evidencing fractional Rights shall be
rejected.
(b) Any holder desiring to divide, combine or exchange any
Subscription Certificate or Subscription Certificates shall make such requests
in writing to the Subscription Agent, and shall surrender the Subscription
Certificate or Subscription Certificates to be divided, combined or exchanged to
the Subscription Agent. Thereupon the Subscription Agent shall deliver to the
person entitled thereto a Subscription Certificate or Subscription Certificates,
as the case may be, as so requested. In all cases of transfer by an
attorney-in-fact, the original power of attorney, duly approved, or a copy
thereof, duly certified, shall be deposited and remain with the Subscription
Agent. In case of transfer by executors, administrators, guardians or other
legal representatives, duly authenticated evidence of their authority
satisfactory to the Subscription Agent shall be produced and may be required to
be deposited and to remain with the Subscription Agent in its discretion. The
Company may require payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in
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connection with any division, combination or exchange of Subscription
Certificates.
(c) Upon receipt by the Company and the Subscription Agent of
evidence reasonably satisfactory to them of the loss, theft, destruction or
mutilation of a Subscription Certificate, and, in case of loss, theft or
destruction, of indemnity and/or security satisfactory to them, which may be in
the form of an open penalty bond, and reimbursement to the Company and the
Subscription Agent of all reasonable expenses incidental thereto, and upon
surrender and cancellation of the Subscription Certificate if mutilated, the
Company will make and deliver a new Subscription Certificate of like tenor to
the Subscription Agent for delivery to the registered owner in lieu of the
Subscription Certificate so lost, stolen, destroyed or mutilated. If required by
the Company or the Subscription Agent an indemnity bond must be sufficient in
the judgment of both to protect the Company, the Subscription Agent or any agent
thereof from any loss which any of them may suffer if a Subscription Certificate
is replaced.
SECTION 6. Subsequent Issue of Subscription Certificates.
Subsequent to their original issuance, no Subscription Certificates shall be
issued except (a) Subscription Certificates issued upon any transfer,
combination, division or exchange of Rights pursuant to Section 5(a), Section
5(b) or Section 10 hereof, (b) Subscription Certificates issued in replacement
of mutilated, destroyed, lost or stolen Subscription Certificates pursuant to
Section 5(c) hereof and (c) Subscription Certificates issued pursuant to Section
7(g) hereof upon the partial exercise of any Subscription Certificate to
evidence the unexercised portion of such Subscription Certificate.
SECTION 7. Exercise of Rights; Exercise Price; Expiration
Date.
(a) The holder of any Subscription Certificate may exercise
some or all of the Rights evidenced thereby (but not in amounts of less than one
Right or an integral multiple thereof) by delivering to the Subscription Agent,
on or prior to 5:00 p.m., New York City time, on , 1997 (the
"Expiration Date"), a properly completed and executed Subscription Certificate
evidencing such Rights (with signatures guaranteed, if necessary, by a
commercial bank or trust company having an office or correspondent in the United
States or a member firm of a national securities exchange or a member of the
National Association of Securities Dealers, Inc. (each, an "Eligible
Institution")), together with payment of the Subscription Price (as hereinafter
defined) for each Underlying Share subscribed for pursuant to the Basic
Subscription Privilege, the Oversubscription Privilege and the Standby Purchase
Commitment.
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In the case of holders of Rights that are held of record through The Depository
Trust Company ("DTC"), exercises of the Basic Subscription Privilege may be
effected by instructing DTC to transfer Rights from the DTC account of such
holder to the DTC account of the Subscription Agent, together with payment of
the Subscription Price for each Underlying Share subscribed for pursuant to the
Basic Subscription Privilege. Exercises of the Oversubscription Privilege may be
effected by properly executing and delivering to the Subscription Agent a DTC
Participant Oversubscription Exercise Form, together with payment of the
appropriate Subscription Price for the number of Underlying shares for which the
Oversubscription Privilege is to be exercised. Alternatively, the holder of any
Subscription Certificate may exercise the Rights evidenced thereby by effecting
compliance with the procedures for guaranteed delivery set forth in Section 7(b)
below.
(b) If a holder wishes to exercise Rights, but time will not
permit such holder to cause the Subscription Certificate or Subscription
Certificates evidencing such Rights to reach the Subscription Agent on or prior
to the Expiration Date, such Rights may nevertheless be exercised if all of the
following conditions (the "Guaranteed Delivery Procedures") are met:
(i) such holder has caused payment in full of the Subscription
Price for each Underlying Share being subscribed for pursuant
to the Basic Subscription Privilege and the Oversubscription
Privilege to be received (in the manner set forth in Section
7(d) hereof) by the Subscription Agent on or prior to the
Expiration Date;
(ii) the Subscription Agent receives, on or prior to the
Expiration Date, a guarantee notice (a "Notice of Guaranteed
Delivery"), substantially in the form provided with the
Instructions as to Use of Subscription Certificates (the
"Instructions") distributed with the Subscription
Certificates, from an Eligible Institution, stating the name
of the exercising Rights holder, the number of Rights
represented by the Subscription Certificate or Subscription
Certificates held by such exercising Rights holder, the number
of Underlying Shares being subscribed for pursuant to the
Basic Subscription Privilege and the number of Underlying
Shares, if any, being subscribed for pursuant to the
Oversubscription Privilege, and guaranteeing the delivery to
the Subscription Agent of the Subscription Certificate
evidencing such Rights at or prior to 5:00 p.m., New York
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City time, on the date three American Stock Exchange ("AMEX")
trading days following the date of the Notice of Guaranteed
Delivery; and
(iii) the properly completed Subscription Certificate(s)
evidencing the Rights being exercised, with any required
signatures guaranteed, are received by the Subscription Agent,
or such Rights are transferred into the DTC account of the
Subscription Agent, at or prior to 5:00 p.m., New York City
time, on the date three AMEX trading days following the date
of the Notice of Guaranteed Delivery relating thereto. The
Notice of Guaranteed Delivery may be delivered to the
Subscription Agent in the same manner as Subscription
Certificates at the addresses set forth above, or may be
transmitted to the Subscription Agent by telegram or facsimile
transmission (telecopy no. (000) 000-0000 or (000) 000-0000).
(c) The Rights shall expire at 5:00 p.m., New York City time,
on the Expiration Date.
(d) The "Subscription Price" shall be $.90 per share of Common
Stock subscribed for pursuant to the Subscription Privilege payable (in United
States dollars) (i) by check or bank draft drawn upon a U.S. bank or postal,
telegraphic or express money order payable to the Subscription Agent, as
Subscription Agent, or (ii) by wire transfer of funds to the account maintained
by the Subscription Agent for such purpose at the [Chase Manhattan Bank, Account
No. 323053807; ABA No. 000000000] (the "Bank Account"). The Subscription Price
shall be deemed to have been received by the Subscription Agent only upon (i)
clearance of any uncertified check, (ii) receipt by the Subscription Agent of
any certified check or bank draft or postal, telegraphic or express money order
or (iii) receipt of good funds in the Subscription Agent's account designated
above, in payment of the Subscription Price.
(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 Subscription Agent is not sufficient 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
Subscription Agent and, to the extent that the Subscription Price payment
delivered by such holder exceeds the Subscription Price multiplied by the
maximum number of whole
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Rights which may be exercised (such excess being the "Subscription Excess"), the
Subscription Agent, as soon as practicable after such exercise of Rights, shall
mail to such Rights holder the Subscription Excess paid by such holder without
interest or deduction.
(f) The Subscription Agent shall pay to credit to the account
of or otherwise transfer to the Company all funds received by the Subscription
Agent in payment of the Subscription Price for Underlying Shares subscribed for
pursuant to the Basic Subscription Privilege, as soon as practicable following
the Expiration date.
(g) Funds received by the Subscription Agent in payment of the
Subscription Price for Excess Shares subscribed for pursuant to the
Oversubscription Privilege shall be held in a segregated account pending
issuance of such excess shares.
(h) Upon receipt by the Subscription Agent of a notice of
satisfaction or waiver of the conditions to the standby purchase commitment from
the Company substantially in the form of Annex A hereto on or before the
Expiration Date, the Subscription Agent shall and is hereby directed to withdraw
from the Bank Account and pay to, credit to the account of or otherwise transfer
to the Company all such funds on , 1997 (the "Closing Date"). Upon
receipt by the Subscription Agent of a notice of failure to satisfy or waive the
conditions to the standby purchase commitment from the Company substantially in
the form of Annex B hereto on or before the Expiration Date, the Subscription
Agent shall and is hereby directed to withdraw from the Bank Account and return
to exercising Rights holders all such funds as promptly as practicable following
the Expiration Date.
(i) In case the holder of any Subscription Certificate shall
exercise less than all the Rights evidenced thereby, a new Subscription
Certificate evidencing the number of Rights remaining unexercised shall be
issued by the Subscription Agent to the registered holder of such Subscription
Certificate or to his duly authorized assigns, subject to the provisions of
Section 9 hereof.
(j) The Subscription Agent is authorized to accept only
Subscription Certificates (other than Subscription Certificates delivered in
accordance with the procedure for guaranteed delivery set forth in Section
7(b)), or transfers of Rights to its account at DTC, received prior to 5:00
p.m., New York City time, on the Expiration Date.
(k) Once a holder of Rights has exercised a Right, such
exercise may not be revoked.
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(l) Unless a Subscription Certificate (i) provides that the
Underlying Shares to be issued pursuant to the exercise of Rights represented
thereby are to be delivered to the holders of such Rights or (ii) is submitted
for the account of an Eligible Institution, signatures on such Subscription
Certificate must be guaranteed by an Eligible Institution.
SECTION 8. Delivery of Stock Certificates.
(a) As soon as practicable after the Expiration Date, the
Subscription Agent shall deliver to such exercising Rights holder certificates
representing the shares of Common Stock purchased pursuant to the Basic
Subscription Privilege and the Oversubscription Privilege, if any.
(b) As soon as practicable after the Expiration Date, the
Subscription Agent shall deliver to Richemont Certificates representing the
shares of Common Stock purchased pursuant to the Standby Purchase Commitment.
SECTION 9. Fractional Rights and Shares.
(a) The Company shall not issue fractions of Rights nor shall
the Subscription Agent distribute Subscription Certificates which evidence
fractional Rights. The number of Rights issued to each holder will be rounded up
to the nearest whole number. All questions as to the validity and eligibility of
any rounding of fractional Rights shall be determined by the Company in its sole
discretion, and its determination shall be final and binding.
(b) The Company shall not issue fractional shares of Common
Stock to exercising Rights holders upon exercise and acceptance of Rights.
SECTION 10. Transfer of Rights.
(a) Any holder may transfer (a) all of the Rights evidenced by
a Subscription Certificate by properly endorsing the Subscription Certificate
for transfer in accordance with the instructions accompanying the Subscription
Certificate or (b) some of the Rights evidenced by a Subscription Certificate
(but not fractional Rights) by delivering to the Subscription 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 Subscription Agent shall issue a new
Subscription Certificate evidencing the balance of
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the Rights to the holder or, if so instructed, to an additional transferee.
(b) Any holder may place an order with the Subscription Agent
to sell all or some of the Rights evidenced by a Subscription Certificate by
delivering to the Subscription Agent such Subscription Certificate properly
executed for sale. If only a portion of the Rights evidenced by a single
Subscription Certificate are to be sold, such Subscription Certificate must be
accompanied by instructions setting forth the action to be taken with respect to
the Rights that are not to be sold. Upon the timely receipt by the Subscription
Agent of appropriate instructions to sell Rights, the Subscription Agent will
use its best efforts to complete the sale and, promptly following the Expiration
Date, the Subscription Agent will send the Rights holder a check for the net
proceeds from the sale of any Rights sold. If the Rights can be sold, sales of
such Rights will be deemed to have been effected at the weighted average price
received on the day such Rights are sold, less any applicable commissions, taxes
and other direct expenses of sale. The Subscription Agent will also attempt to
sell all Rights which remain unclaimed as a result of Subscription Certificates
being returned by the postal authorities to the Subscription Agent as
undeliverable as of the fourth business day prior to the Expiration Date. Such
sales will be made net of commissions on behalf of the nonclaiming Rights
holders. The Subscription Agent will hold the proceeds from those sales for the
benefit of such nonclaiming Rights holders until such proceeds are either
claimed or escheat. The Subscription Agent's obligation to execute orders is
subject to its ability to find buyers. There can be no assurance that the
Subscription Agent will be able to sell any Rights or as to the prices the
Subscription Agent may be able to obtain in such sales. In connection therewith,
the Subscription Agent agrees that it (i) is acting solely on behalf and for the
benefit of such holders who wish to sell their Rights and not as agent, or on
behalf, of the Company, (ii) shall not accept any instructions from the Company
with respect to the timing of such sales and (iii) shall effect all such sales
in accordance with applicable law.
SECTION 11. Foreign and Certain Other Stockholders. The
Subscription Agent shall not mail Subscription Certificates to holders of Common
Stock whose addresses are outside the U.S. The Subscription Agent shall hold
such Subscription Certificates for the account of such holders and upon notice
from such holders shall exercise the Rights on their behalf. To so exercise such
Rights, such stockholders must notify the Subscription Agent not later than
11:00 a.m., New York City time, on , 1997. If no instructions have
been received, the Subscription Agent will use its best efforts to sell the
Rights. The net proceeds,
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if any, from the sale of those Rights by the Subscription Agent will be remitted
to such holders by the Subscription Agent. If the Rights can be sold, sales of
such Rights will be deemed to have been effected at the weighted average price
received by the Subscription Agent for the sale of all Rights through the
Subscription Agent, less any applicable brokerage commissions, taxes and other
expenses. In connection therewith, the Subscription Agent agrees that it (i) is
acting solely on behalf and for the benefit of such holders who wish to sell
their Rights and not as agent, or on behalf, of the Company, (ii) shall not
accept any instructions from the Company with respect to the timing of such
sales, (iii) shall effect all such sales in accordance with applicable law, and
(iv) shall not effect any such sales in a manner that would cause a material
adverse change in the market for the Rights.
SECTION 12. Reports. The Subscription Agent shall notify both
the Company and its designated representatives (including the Information Agent,
Xxxxxx & Co., Inc.) by telephone as requested during the period commencing with
the mailing of Subscription Certificates and ending on the Expiration Date (and
in the case of guaranteed deliveries pursuant to Section 7(b), the period ending
three AMEX trading days after the Expiration Date), which notice shall
thereafter be confirmed in writing, of (i) the number of Rights exercised on the
day of such request, (ii) the number of Underlying Shares subscribed for
pursuant to the Basic Subscription Privilege and the Oversubscription Privilege,
if any, and the number of such Rights for which payment has been received, (iii)
the number of Rights subject to guaranteed delivery pursuant to Section 7(b) on
such day, (iv) the number of Rights for which defective exercises have been
received on such day and (v) cumulative totals derived from the information set
forth in clauses (i) through (iv) above. At or before noon p.m., New York City
time, on the first AMEX trading day following the Expiration Date, the
Subscription Agent shall certify in writing to the Company the cumulative totals
through the Expiration Date derived from the information set forth in clauses
(i) through (iv) above. The Subscription Agent shall also maintain and update a
listing of holders who have fully or partially exercised their Rights, holders
who have transferred their Rights and their transferees and holders who have not
exercised their Rights. The Subscription Agent shall provide the Company or its
designated representatives with the information compiled pursuant to this
Section 12 as any of them shall request. The Subscription Agent hereby
represents, warrants and agrees that the information contained in each
notification referred to in this Section 12 shall be accurate in all material
respects.
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SECTION 13. Future Instructions and Interpretation.
(a) All questions as to the timeliness, validity, form and
eligibility of any exercise of Rights will be determined by the Company whose
determinations shall be final and binding. The Company in its sole discretion
may waive any defect or irregularity, permit a defect or irregularity to be
corrected within such time as it may determine or reject the purported exercise
of any Right. Subscriptions will not be deemed to have been received or accepted
until all irregularities have been waived or cured within such time as the
Company determines in its sole discretion. Neither the Company nor the
Subscription Agent shall be under any duty to give notification of any defect or
irregularity in connection with the submission of Subscription Certificates or
incur any liability for failure to give such notification.
(b) The Subscription Agent is hereby authorized and directed
to accept instructions with respect to the performance of its duties hereunder
from an authorized officer of the Company, and to apply to such officers for
advice or instructions in connection with its duties, and it shall not be liable
for any action taken or suffered to be taken by it in good faith in accordance
with instructions of any such officer.
SECTION 14. Payment of Taxes. The Company covenants and agrees
that it will pay when due and payable all documentary, stamp and other taxes, if
any, which may be payable in respect of the issuance or delivery of any
Subscription Certificate or of the Underlying Shares; provided, however, that
the Company shall not be liable for any tax liability arising out of any
transaction which results in, or is deemed to be, an exchange of Rights or
shares or a constructive dividend with respect to the Rights or shares and
provided further that the Company shall not be required to pay any tax or other
governmental charge which may be payable in respect of any transfer involved in
the transfer or delivery of any Subscription Certificate or the issuance or
delivery of certificates for shares of Common Stock in a name other than that of
the registered holder of such Subscription Certificate evidencing the Rights
exercised or transferred, and the Subscription Agent shall not register any such
transfer or issue any such certificate until such tax or governmental charge, if
required, shall have been paid.
SECTION 15. Cancellation and Destruction of Subscription
Certificates. All Subscription Certificates surrendered for the purpose of
exercise, exchange, substitution or transfer shall be canceled by the
Subscription Agent, and no Subscription Certificates shall be issued in lieu
thereof except as expressly permitted by provisions of this Agreement. The
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Company shall deliver to the Subscription Agent for cancellation and retirement,
and the Subscription Agent shall so cancel and return, any other Subscription
Certificate purchased or acquired by the Company otherwise than upon the
exercise thereof. The Subscription 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.
SECTION 16. Right of Action. All rights of action in respect
of this Agreement are vested in the Company and the respective registered
holders of the Subscription Certificates, and any registered holder of any
Subscription Certificate, without the consent of the Subscription Agent or of
the holder of any other Subscription Certificate, may, on his own behalf and for
his own benefit, enforce, and may institute and maintain any suit, action or
proceeding against the Company to enforce, or otherwise act in respect of, his
right to exercise the Rights evidenced by such Subscription Certificate in the
manner provided in such Subscription Certificate and in this Agreement.
SECTION 17. Concerning the Subscription Agent;
Indemnification.
(a) The Company agrees to pay to the Subscription Agent
compensation in accordance with the fee letter attached hereto as Exhibit B for
all services rendered by it hereunder and, from time to time, on demand of the
Subscription Agent, its reasonable expenses and counsel fees and other
disbursements incurred in the administration and execution of this Agreement and
the exercise and performance of its duties hereunder.
(b) The Company also agrees to indemnify and hold the
Subscription Agent harmless against any losses, claims, damages, liabilities,
costs or expenses (including reasonable fees and disbursements of legal counsel)
which the Subscription Agent may incur or become subject to arising from or out
of any claim or liability resulting from actions taken as Subscription Agent
pursuant to this Agreement; provided, however, that such covenant and agreement
does not extend to, and the Subscription Agent shall not be indemnified or held
harmless with respect to, such losses, claims, damages, liabilities, costs or
expenses incurred or suffered by the Subscription Agent as a result, or arising
out, of the Subscription Agent's negligence, misconduct, bad faith or breach of
this Agreement. In connection therewith: (i) in no case shall the Company be
liable with respect to any claim against the Subscription Agent unless the
Subscription Agent shall have notified the Company in writing, of the assertion
of a claim against it or of any action commenced against it, promptly
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after the Subscription Agent shall have notice of a claim or shall have been
served with the summons or other legal process giving information as to the
nature and basis of the claim; provided, however, that the failure of the
Subscription Agent to notify the Company in the above manner will absolve the
Company of liability only when such failure will result or has resulted in
prejudice to the Company with respect to such claim or action; (ii) 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, it shall assume
the defense of any such suit, in which event the Company shall not be liable for
the fees and expenses of any additional counsel that the Subscription Agent may
retain, so long as the Company shall retain counsel satisfactory to the
Subscription Agent, in the exercise of the Subscription Agent's reasonable
judgement, to defend such suit; and (iii) the Subscription Agent agrees not to
settle any litigation in connection with any claim or liability with respect to
which it may seek indemnification from the Company without the prior written
consent of the Company.
(c) The Subscription Agent shall be protected and shall incur
no liability for or in respect of any action taken, suffered or omitted by it
without negligence and in good faith in connection with its administration of
this Agreement in reliance upon any Subscription Certificate, instrument of
assignment or transfer, power of attorney, endorsement, affidavit, letter,
notice, direction, consent, certificate, statement or other paper or document
reasonably believed by it to be genuine and to be signed, executed and, where
necessary, verified or acknowledged by the proper person or persons.
SECTION 18. Merger or Consolidation of Subscription Agent. Any
corporation into which the Subscription Agent or any successor Subscription
Agent may be merged or with which it may be consolidated, or any corporation
resulting from any merger or consolidation to which the Subscription Agent or
any successor Subscription Agent shall be a party, or any corporation succeeding
to the corporate trust business of the Subscription Agent or any successor
Subscription Agent shall be the successor to the Subscription Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
SECTION 19. Duties of Subscription Agent. The Subscription
Agent undertakes the duties and obligations imposed by this Agreement upon the
following terms and conditions, by all of which the Company and the holders of
Subscription Certificates by their acceptance thereof shall be bound:
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(a) The Subscription Agent may consult with legal counsel (who
may be, but is not required to be, legal counsel for the Company), and
the opinion of such counsel shall be full and complete authorization
and protection to the Subscription Agent as to any action taken or
omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this
Agreement the Subscription Agent shall deem it necessary or desirable
that any fact or matter be proved or established by the Company prior
to taking or suffering any action hereunder, such fact or matter
(unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and established by
a certificate signed by the Chairman of the Board, the President or a
Vice President (including any Senior or Executive Vice President) and
by the Treasurer or any Assistant Treasurer or the Secretary or any
Assistant Secretary of the Company and delivered to the Subscription
Agent; and such certificate shall be full authorization to the
Subscription Agent for any action taken or suffered in good faith by it
under the provisions of this Agreement in reliance upon such
certificate.
(c) The Subscription Agent shall be liable hereunder only for
its own negligence or willful misconduct.
(d) The Subscription Agent shall not be liable for or by
reason of any of the statements of fact or recitals contained in this
Agreement or in the Subscription Certificates or be required to verify
the same, but all such statements and recitals are and shall be deemed
to have been made by the Company only.
(e) The Subscription Agent shall not be under any
responsibility in respect of the validity of this Agreement or the
execution and delivery hereof (except the due execution hereof by the
Subscription Agent) or in respect of the validity or execution of any
Subscription Certificate; nor shall it be responsible for any breach by
the Company of any covenant or condition contained in this Agreement or
in any Subscription Certificate; nor shall it by any act hereunder be
deemed to make any representation or warranty as to the authorization
or reservation of any shares of Common Stock to be issued pursuant to
this Agreement or any Subscription Certificate or as to whether any
shares of Common Stock will, when issued, be validly authorized and
issued, fully paid and nonassessable.
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16
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts, instruments
and assurances as may reasonably be required by the Subscription Agent
for the carrying out or performing by the Subscription Agent of the
provisions of this Agreement.
(g) Nothing herein shall preclude the Subscription Agent from
acting in any other capacity for the Company.
(h) The Subscription Agent shall comply with the information
and backup withholding requirements of the Internal Revenue Code of
1986, as amended (the "Code"), including without limitation, where
appropriate, on a timely basis, filing with the Internal Revenue
Service and furnishing to holders of Rights duly completed Forms 1099B
and 1099DIV. The Subscription Agent shall also collect and duly
preserve Forms W-8 and W-9 and other forms or information necessary to
comply with the backup withholding requirements of the Code.
(i) The Subscription Agent shall withhold from payments made
to record owners amounts sufficient to comply with the backup
withholding requirements of the Code. For purposes of backup
withholding that may be applicable in respect of Rights distributed to
record owners other than foreign holders, the Subscription Agent shall
withhold and sell Rights on behalf of such record owners in amounts
necessary to satisfy such backup withholding requirements.
SECTION 20. Notices to the Company, Holders and Subscription
Agent. All notices and other communications provided for or permitted hereunder
shall be made by hand delivery, prepaid first-class mail, or telecopier:
(a) if to the Company, to:
Hanover Direct, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. X'Xxxxx
Telecopier: (000) 000-0000
(b) if to the Subscription Agent, to:
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American Stock Transfer & Trust Company
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx and
Xxxxxxx Xxxxxx
Telecopier: (000) 000-0000 or
(000) 000-0000
(c) if to a registered holder, at the address shown on the
registry books of the Company.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; two business
days after being deposited in the mail, postage prepaid, if mailed as aforesaid;
and when receipt is acknowledged, if telecopied.
SECTION 21. Supplements and Amendments. The Company and the
Subscription Agent may from time to time supplement or amend this Agreement
without the approval of any holders of Subscription Certificates in order to
cure any ambiguity or to correct or supplement any provision maintained herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions in regard to matters or questions arising hereunder
which the Company and the Subscription Agent may deem necessary or desirable and
which shall not adversely affect the interests of the holders of the
Subscription Certificates.
SECTION 22. Successors. All the covenants and provisions of
this Agreement by or for the benefit of the Company or the Subscription Agent
shall bind and inure to the benefit of their respective successors and assigns
hereunder.
SECTION 23. Termination. This Agreement shall terminate at
5:00 p.m., New York City time, on the thirtieth day following the Expiration
Date. Upon termination of this Agreement, and provided that all shares of Common
Stock for Rights accepted for execution prior to such termination are issued and
delivered by the Company, the Company shall be discharged from all obligations
under this Agreement except for its obligation to the Subscription Agent under
Section 17 hereof and except with respect to the obligation of the Company to
provide instruction and direction to the Subscription Agent as may be provided
in this Agreement.
SECTION 24. Governing Law. This Agreement and each
Subscription Certificate shall be deemed to be a contract made under the laws of
the State of New York and for all purposes
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shall be construed in accordance with the internal laws of said State.
SECTION 25. Benefits of This Agreement. Nothing in this
Agreement shall be construed to give to any person or corporation other than the
Company, the Subscription Agent and the holders of the Subscription Certificates
any legal or equitable right, remedy or claim under this Agreement; but this
Agreement shall be for the sole and exclusive benefit of the Company, the
Subscription Agent and the holders of the Subscription Certificates.
SECTION 26. Counterparts. This Agreement may be executed in
any number of counterparts and each of such counterparts shall for all purposes
be deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
SECTION 27. Descriptive Headings. Descriptive headings of the
several Sections of this Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions
hereof.
IN WITNESS WHEREOF, each of the parties hereto has caused the
Agreement to be duly executed as of the date first above written.
HANOVER DIRECT, INC.
By:___________________________
Title:________________________
AMERICAN STOCK TRANSFER &
TRUST COMPANY, Subscription
Agent
By:___________________________
Title:________________________
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EXHIBIT A
FORM OF SUBSCRIPTION CERTIFICATE
ATTACHED HERETO
20
EXHIBIT B
SUBSCRIPTION AGENT'S FEE LETTER
[American Stock Transfer & Trust Company Letterhead]
_____ , 1997
Xxxxxx X. X'Xxxxx
Hanover Direct, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Dear Xx. X'Xxxxx:
This is to confirm that American Stock Transfer & Trust
Company will act as Hanover Direct, Inc.'s Subscription Agent and
we will perform the following services:
- Mailing material to shareholders;
- Issuing certificates to subscribing shareholders;
- Curing all deficient items;
- Collecting checks;
- Remitting payments to the company;
- Researching all problem items;
- Communicating with shareholders;
- Communicating with Depository Trust Company and
all brokers regarding their respective record
date positions;
- Changing addresses; and
- Reporting to company on daily totals.
Our fee will be $ plus out-of-pocket expenses limited to
postage, envelopes and 1099 forms. Payment will be due to us upon completion of
the offering.
Looking forward to working with you.
Please rest assured that we will do everything in our power to merit
your goodwill and confidence.
Very truly yours,
AMERICAN STOCK TRANSFER
& TRUST COMPANY
21
ANNEX A
FORM OF NOTICE
Hanover Direct, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
_____ , 1997
American Stock Transfer & Trust Company
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx and
Xxxxxxx Xxxxxx
Re: Disbursement of Funds
Dear Sirs:
Pursuant to Section 7(h) of the Subscription Agency Agreement, dated as
of _____ , 1997 (the "Agreement"), by and between Hanover Direct, Inc., a
Delaware public company (the "Company"), and American Stock Transfer and Trust
Company, as Subscription Agent (the "Subscription Agent"), you are hereby
notified that all the conditions set forth in that certain Standby Purchase
Agreement, dated March 26, 1997, between the Company and Richemont S.A., a
Luxembourg corporation ("Richemont"), have been satisfied or otherwise waived
by Richemont. Capitalized terms used but not defined herein have the meanings
set forth in the Agreement.
Accordingly you are hereby directed to withdraw from the Bank Account
and pay to, credit to the account of or otherwise transfer to the Company all
the funds in the Bank Account as promptly as practicable and in no event later
than noon on , 1997 as provided in Section 7(h) of the Agreement.
IN WITNESS WHEREOF, the Company has duly caused this Notice to be
delivered to you in accordance with the terms of the Agreement.
HANOVER DIRECT, INC.
By:___________________________
Name:
Title:
22
ANNEX B
FORM OF NOTICE
[Company's Letterhead]
_____ , 1997
Notice of Failure to Satisfy or Waive
Conditions of Standby Purchase
American Stock Transfer & Trust Company
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx and
Xxxxxxx Xxxxxx
Re: Disbursement of Funds
Dear Sirs:
Pursuant to Section 7(h) of the Subscription Agency Agreement, dated as
of _____ , 1997 (the "Agreement"), by and between Hanover Direct, Inc., a
Delaware corporation (the "Company"), and American Stock Transfer and Trust
Company, as Subscription Agent (the "Subscription Agent"), you are hereby
notified that certain of the conditions set forth in that certain Standby
Purchase Agreement, dated March 26, 1997, between the Company and Richemont,
S.A., a Luxembourg public company ("Richemont"), have not been satisfied or
otherwise waived by Richemont. Capitalized terms used but not defined herein
have the meanings set forth in the Agreement.
Accordingly you are hereby directed to withdraw from the Bank Account
and return to exercising Rights holders all such funds as promptly as
practicable following the Expiration Date as provided in Section 7(h) of the
Agreement.
IN WITNESS WHEREOF, the Company has duly caused this Notice to be
delivered to you in accordance with the terms of the Agreement.
HANOVER DIRECT, INC.
By:___________________________
Name:
Title:
