EXHIBIT 99.1
SUBSCRIPTION AGENT AGREEMENT
Date: January , 2000
ChaseMellon Shareholder Services, L.L.C.
00 Xxxxxxxxxx Xx.
Xxxxxxxxxx Xxxx, XX 00000
Attn: Reorganization Department
Gentlemen:
This Subscription Agent Agreement (this 'Agreement') will define the
services that ChaseMellon Shareholder Services L.L.C. ('ChaseMellon'), as
Subscription Agent and Transfer Agent, will provide to GenTek Inc., a Delaware
corporation (the 'Company'), in connection with the subscription offer described
below and compensation that GenTek will pay to ChaseMellon for such services.
The Company is making an offer to issue (the 'Subscription Offer') 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 January 24, 2000 (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 per share to
be determined on or around the Record Date (the 'Subscription Price'), payable
by cashier's or certified check or wire transfer, upon the terms and conditions
set forth herein. The term 'Subscribed' shall mean submitted for purchase from
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 5:00 p.m., New York City Time, on
February 14, 2000 (the 'Expiration Time'), unless the Company shall have
extended the period of time for which the Subscription Offer is open, in which
event the term 'Expiration Time' shall mean the latest time and date at which
the Subscription Offer, as so extended by the Company from time to time, shall
expire.
The Company filed a Registration Statement with respect to the Rights and
the Additional Common Stock with the Securities and Exchange Commission under
the Securities Act of 1933, as amended, on January 10, 2000. The terms of the
Additional Common Stock are more fully described in the Prospectus forming part
of the Registration Statement, and the accompanying Letter of Instruction.
Copies of the Prospectus, the Letter of Instruction and the Notice of Guaranteed
Delivery are annexed hereto as Exhibit 1, Exhibit 2 and Exhibit 3, respectively.
All terms used and not defined herein shall have the same meaning as in the
Prospectus.
The Rights are evidenced by subscription warrants (the 'Warrants'), a copy
of the form of which is annexed hereto as Exhibit 4. The Warrants entitle the
holders to subscribe, upon payment of the Subscription Price, for shares of
Additional Common Stock at the rate of one share for each Right evidenced by a
Warrant (the 'Basic Subscription Privilege'). No fractional shares will be
issued; in the event that a fractional Right would be calculated for a holder as
a result of the ratio described above, the number of Rights to be granted to
such holder will be rounded up to the nearest full Right. After the initial
allocation of Additional Common Stock pursuant to the exercise by holders of
their Basic Subscription Privilege, ChaseMellon shall allocate any remaining
shares of Additional Common Stock to those Rights holders exercising their Basic
Subscription Privilege in full, and who subscribe for and pay the Subscription
Price with respect to such shares, on a pro-rata basis to their Basic
Subscription Privilege (the 'Oversubscription Privilege'). Reference is made to
the Prospectus for a complete description of
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the Basic Subscription Privilege and the Oversubscription Privilege. Rights (and
the Warrants evidencing such Rights) may be transferred only in limited
circumstances as further described herein and in the Prospectus.
The Company hereby appoints ChaseMellon as Subscription Agent (the
'Subscription Agent') for the Subscription Offer and agrees with ChaseMellon as
follows:
1. As Subscription Agent, ChaseMellon is authorized and directed to:
(A) Issue the Warrants 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
Warrants 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 the Subscription Agent receives 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 Warrant
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). The Subscription Agent shall refrain
from mailing Warrants 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 Warrants 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 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 third business day prior to the Expiration Time.
(C) Mail or deliver a copy of the Prospectus (i) to each assignee
or transferee of Warrants upon the receipt by the Subscription Agent of
appropriate documents to register the assignment or transfer thereof (to
the extent such assignment or transfer is permitted) and (ii) with
certificates for shares of Additional Common Stock when such are issued
to persons other than the registered holder of the Warrant.
(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 Warrants and the Prospectus.
(E) Subject to the next sentence, accept Subscriptions from
stockholders whose Warrants are alleged to have been lost, stolen or
destroyed upon receipt by the Subscription Agent of an affidavit of
theft, loss or destruction and a bond of indemnity in form and substance
satisfactory to the Subscription Agent, 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 Warrants and the Subscription Agent shall
withhold delivery of the shares of Additional Common Stock Subscribed
for until after the Warrants have expired and it has been determined
that the
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Rights evidenced by the Warrants 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 Warrant 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 Warrant 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 Warrant 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 Warrant is registered in the name of an individual
and is executed by a person purporting to act as such individual's
executor, administrator or personal representative, provided, the
Additional Common Stock is to be registered in the name of the
subscriber as executor or administrator of the estate of the deceased
registered holder and there is no evidence indicating the subscriber
is not the duly authorized representative that he purports to be.
(G) Accept Subscriptions not accompanied by Warrants 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 Warrants,
under the circumstances and in compliance with the terms and conditions
set forth in the Prospectus under the heading 'The Rights Offering --
Special Procedures under 'Notice of Guaranteed Delivery' Form'.
(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 Warrants.
(J) Upon acceptance of a Subscription:
(a) hold all monies received in a special account for the
benefit of the Company. Promptly following the Expiration Time the
Subscription Agent 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 telecopy and confirm by letter
to the Company, attention of Xxxx XxXxxxx, Secretary (the 'Company
Representative'), as to the total number of shares of Additional
Common Stock Subscribed for, total number of Rights sold, total
number of Rights partially Subscribed for and the amount of funds
received, with cumulative totals for each; and in addition advise the
Company Representative, by telephone at 000 000-0000 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
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Subscribed for, the number of Subscription guarantees received and
the number of shares of Additional Common Stock unsubscribed for.
2. Registration of Warrants:
(a) The Warrants shall be issued in registered form only. The
Subscription Agent shall act as the Transfer Agent and Registrar for the
Warrants, which shall keep books and records of the registration and
transfers and exchanges of Warrants (such books and records are
hereinafter called the 'Warrant Register').
(b) All Warrants issued upon any registration of transfer or
exchange of Warrants shall be the valid obligations of the Company,
evidencing the same obligations, and entitled to the same benefits under
this Agreement, as the Warrants surrendered for such registration of
transfer or exchange.
(c) As a general matter, neither the Rights nor the Warrants are
transferable and the Subscription Agent is not authorized to recognize
the validity of any purported transfer, except that the Rights holder
may transfer the Rights in whose name the Warrant was issued to a
Permitted Transferee (as defined below) of such Rights holder it has
established to the Subscription Agent's satisfaction that the person to
whom the shares of Additional common Stock are to be delivered is a
Permitted Transferee of such Rights holder. Any Warrant when duly
endorsed to a Permitted Transferee of the Transferor thereof shall be
deemed negotiable to such Permitted Transferee, and when a Warrant shall
have been so endorsed the Permitted Transferee thereof may be treated by
the Company, the Subscription Agent and all other persons dealing
therewith as the absolute owner thereof for any purpose and as the
person entitled to exercise the rights represented thereby, any notice
to the contrary notwithstanding, but until such transfer is registered
in the Warrant Register, the Company and the Subscription Agent may
treat the registered holder thereof as the owner for all purposes.
(d) Notwithstanding the general prohibition on transfers of rights
and Warrants, ChaseMellon is authorized to divide Warrants upon receipt
of an affidavit of a record holder of Rights stating that such record
holder is a nominee holder only for multiple beneficial owners and that
the Subscription Warrants received do not permit an equitable allocation
of Rights among such beneficial owners. In such event, ChaseMellon will
exchange such originally issued subscription Warrant for such additional
Subscription Warrants as necessary to permit equitable allocation of
whole Rights to such beneficial owners to be exercised by the holder of
record in name of such beneficial owners.
(e) The Transfer Agent is authorized to accept applications to
transfer Warrants only to Permitted transferees (as defined herein) and
to act therein as a Transfer Agent for this limited purpose, 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:
(i) if a Warrant is registered in the name of a fiduciary and is
executed by, and the shares of Additional Common Stock are to be
issued in the name of, such fiduciary;
(ii) if a Warrant is registered in the name of joint tenants and
is executed by one of the joint tenants, provided the certificate
representing the shares of Additional Common Stock is issued in the
names of, and is to be delivered to, such joint tenants;
(iii) if a Warrant 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
shares of Additional Common Stock are to be issued in the name of
such corporation; or
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(iv) if a Warrant is registered in the name of an individual and
is executed by a person purporting to act as such individual's
executor, administrator or personal representative, provided, the
shares of Additional Common Stock are 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.
For purposes of this Agreement, the term 'Permitted Transferees' means:
a Rights holder's immediate relatives, i.e., spouse, children and
parents; entities wholly owned and controlled by such Rights holder; if
the Rights holder is a corporation or a partnership owned or controlled
by one person or entity, the person or entity that owns or controls such
Rights holder; if the Rights holder is a trust, the settlors, grantors,
trustees or beneficiaries of such Rights holder or immediate relatives
or entities wholly owned or controlled by such settlors, grantors,
trustees or beneficiaries; and transferees by operation of law in the
event of death or dissolution of the Rights holder.
In any transfer, the Subscription Agent may rely on the
certification of the Rights holder set forth on the Warrant that the
transferee is a permitted Transferee. The Subscription Agent may at its
option, and at the request of the Company shall, request proper showing
of the Rights holder's to the transferee, and, if ChaseMellon is not
satisfied, it may refuse to acknowledge or give effect to the purported
transfer.
3. The Subscription Agent will follow its regular procedures to
attempt to reconcile any discrepancies between the number of shares of
Additional Common Stock that any Warrant 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 the Subscription Agent
cannot reconcile such discrepancies by following such procedures, the
Subscription Agent will consult with the Company for instructions as to the
number of shares of Additional Common Stock, if any, the Subscription Agent
is authorized to issue. In the absence of such instructions, the
Subscription Agent is authorized not to issue any shares of Additional
Common Stock to such stockholder.
4. The Subscription Agent will examine the Warrants received by it to
ascertain whether they appear to the Subscription Agent to have been
completed and executed in accordance with the applicable Letter of
Instruction. In the event the Subscription Agent determines that any
Warrant does not appear to it to have been properly completed or executed,
or where the Warrants do not appear to it to be in proper form for
Subscription, or any other irregularity in connection with the Subscription
appears to it to exist, the Subscription Agent will follow, where possible,
its regular procedures to attempt to cause such irregularity to be
corrected. The Subscription Agent is not authorized to waive any
irregularity in connection with the Subscription, unless the Subscription
Agent shall have received from the Company the Warrant which was delivered,
duly dated and signed by an authorized officer of the Company, indicating
that any irregularity in such Warrant has been cured or waived and that
such Warrant has been accepted by the Company. If any such irregularity is
neither corrected nor waived, the Subscription Agent will return to the
subscribing stockholder (at its option by either first class mail under a
blanket surety bond or insurance protecting the Subscription Agent and the
Company from losses or liabilities arising out of the non-receipt or
nondelivery of Warrants or by registered mail insured separately for the
value of such Warrants) to such stockholder's address as set forth in the
Subscription any Warrants surrendered in connection therewith and any other
documents received with such Warrants, and a letter of notice to be
furnished by the Company explaining the reasons for the return of the
Warrants and other documents.
5. Each document received by the Subscription Agent relating to its
duties hereunder shall be dated and time stamped when received.
6. Sufficient Shares:
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(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,
ChaseMellon will, as the Transfer Agent for the Common Stock, 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 Warrants 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 Warrants or
Additional Common Stock issued upon exercise of Warrants.
7. If certificates representing shares of Additional Common Stock are
to be delivered by the Subscription Agent to a person other than the person
in whose name a surrendered Warrant is registered, the Subscription Agent
will issue no certificate for Additional Common Stock until the Warrant so
surrendered has been properly endorsed by or on behalf of the Rights holder
in whose name the Warrant was issued and such Rights holder has established
to the Subscription Agent's satisfaction that the person to whom the shares
of Additional Common Stock are to be delivered is a Permitted Transferee of
such Rights holder, 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 Warrant surrendered, or has
established to the satisfaction of the Subscription Agent 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, the Subscription Agent will take such action as the Company
instructs it in writing.
9. The Company may terminate this Agreement at any time by so
notifying the Subscription Agent in writing. The Subscription Agent may
terminate this Agreement upon 30 days' prior notice to the Company. Upon
any such termination, the Subscription Agent shall be relieved and
discharged of any further responsibilities with respect to its duties
hereunder. Upon payment of all the Subscription Agent's outstanding fees
and expenses, the Subscription Agent will forward to the Company or its
designee promptly any Warrant or other document relating to the
Subscription Agent's duties hereunder that the Subscription Agent may
receive after its appointment has so terminated. Sections 11, 12, and 14 of
this Agreement shall survive any termination of this Agreement.
10. As agent for the Company hereunder the Subscription Agent:
(a) shall have no duties or obligations other than those
specifically set forth herein or as may subsequently be agreed to in
writing by the Subscription Agent 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;
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(c) shall be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value, or genuineness
of any Warrants surrendered to the Subscription Agent 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, the Subscription Agent determines to take any legal action
hereunder, and where the taking of such action might, in its judgment,
subject or expose it to any expense or liability it shall not be
required to act unless it shall have been furnished with an indemnity
satisfactory to it;
(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 the Subscription Agent and believed by
it to be genuine and to have been signed by the proper party or parties;
(f) shall not be liable or responsible for any recital or statement
contained in the Prospectus or any other documents relating thereto;
(g) shall not be liable or responsible for any failure on the part
of the Company to comply with any of its covenants and obligations
relating to the Subscription Offer, including without limitation
obligations under applicable securities laws;
(h) may rely on and shall be fully authorized and protected in
acting or failing to act upon the written, telephonic or oral
instructions with respect to any matter relating to the 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 the Subscription
Agent, including Xxxx X. XxXxxxx, Secretary of the Company, and the
advice of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered, or omitted by the
Subscription Agent hereunder in good faith and in accordance with the
advice of such counsel;
(j) may perform any of the Subscription Agent's duties hereunder
either directly or by or through agents or attorneys and it shall not be
liable or responsible for any misconduct or negligence on the part of
any agent or attorney appointed with reasonable care by it hereunder;
and
(k) is 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 the Subscription Agent's
duties hereunder or the rights of the Company or of any stockholders
surrendering Warrants pursuant to the Subscription Offer, the Subscription
Agent shall not be required to act and shall not be held liable or
responsible for its refusal to act until the question or dispute has been
judicially settled (and, if appropriate, the Subscription Agent 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 the Subscription Agent and executed by the Company and each
such stockholder and party. In addition, the Subscription Agent 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 the Subscription Agent orally, as
permitted by any provision of this Agreement, shall be confirmed in writing
by the Company as soon as practicable. The Subscription Agent shall not be
liable or responsible and shall be fully authorized and
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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 Warrants are surrendered to the Subscription
Agent, for its services as Subscription Agent hereunder, the Company shall
pay to the Subscription Agent compensation in accordance with the fee
schedule attached as Exhibit A hereto, together with reimbursement for
out-of-pocket expenses, including reasonable fees and disbursements of
counsel.
14. The Company covenants to indemnify and hold the Subscription Agent
and its officers, directors, employees, agents, contractors, subsidiaries
and affiliates harmless from and against any loss, liability, damage or
expense (including without limitation any loss, liability, damage or
expense incurred for accepting Warrants tendered without a signature
guarantee and the fees and expenses of counsel) incurred (a) without gross
negligence or bad faith or (b) as a result of its acting or failing to act
upon the Company's instructions, arising out of or in connection with the
Subscription Offer, this Agreement or the administration of the
Subscription Agent's duties hereunder, including without limitation the
costs and expenses of defending and appealing against any action,
proceeding, suit or claim in the premises. The Subscription Agent shall
promptly notify the Company of any action, proceeding, suit or claim by
letter or telex or facsimile transmission confirmed by letter. The Company
shall be entitled to participate at its own expense in the defense of any
such action, proceeding, suit or claim. Anything in this agreement to the
contrary notwithstanding, in no event shall the Subscription Agent be
liable for special, indirect or consequential loss or damages of any kind
whatsoever (including but not limited to lost profits), even if the
Subscription Agent have been advised of the likelihood of such loss or
damage and regardless of the form of action. Any liability of the
Subscription Agent will be limited to the amount of fees paid by the
Company hereunder.
15. If any provision of this Agreement shall be held illegal, invalid,
or unenforceable by any court, this Agreement shall be construed and
enforced as if such provision had not been contained herein and shall be
deemed an Agreement among us to the full extent permitted by applicable
law.
16. The Company represents and warrants that (a) it is duly
incorporated, 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 the Subscription Agent 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 the Subscription Agent the names and signatures of any other persons
authorized to act for the Company under this Agreement.
19. Except as expressly set forth elsewhere in this Agreement, all
notices, instructions and communications under this Agreement shall be in
writing, shall be effective upon receipt and shall be addressed, if to the
Company, to its address set forth beneath its signature to
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this Agreement, or, if to the Subscription Agent, to ChaseMellon
Shareholder Services, L.L.C., 00 Xxxxxxxxxx Xx., Xxxxxxxxxx Xxxx, XX 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 ChaseMellon's
agreement concerning ChaseMellon's appointment as Subscription Agent, and the
arrangements herein provided, by signing and returning the enclosed copy hereof,
whereupon this Agreement and the Subscription Agent's acceptance of the terms
and conditions herein provided shall constitute a binding Agreement between us.
Very truly yours,
GENTEK, INC.
By
..................................
NAME:
TITLE:
ADDRESS FOR NOTICES:
XXXXXXX XXXX,
XXXXXXX, XX 00000
Accepted as of the date
above first written:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.,
AS SUBSCRIPTION AGENT
By
......................................
NAME:
TITLE:
9
