Exhibit 99.1
SUBSCRIPTION AGENT AGREEMENT
THIS SUBSCRIPTION AGENT AGREEMENT (this "Agreement") between Xxxxxx
Xxxxxx, Inc., a Delaware corporation (the "Company"), and Corporate Stock
Transfer, Inc., ("CST"),a [_________] corporation, is dated as of __________,
2008.
1. Appointment
(a) Except with respect to those holders set forth on Schedule A
attached hereto, the Company is distributing one (1) non-transferable
subscription right (the "Rights") to each holder ("Eligible Holder") of record
as of April 14, 2008 (the "Record Date") of its outstanding shares of Common
Stock, par value $0.01 per share (the "Common Stock"), to purchase four (4)
shares of Common Stock for each share such Eligible Holder owned on that date
(the "Rights Ratio") for a subscription price of $0.10 per share (the
"Subscription Price"), payable by cashier's or certified check, bank draft drawn
upon a U.S. bank or any postal, telegraphic or express money order payable to
"Corporate Stock Transfer, Inc., as agent for Xxxxxx Xxxxxx, Inc." or by wire
transfer of immediately available funds, upon the terms and conditions set forth
herein and in the Prospectus (defined below) (the "Rights Offering"). The term
"Subscribed" shall mean submitted for purchase from the Company by a stockholder
in accordance with the terms of the Rights Offering or the 2007 Investor
Offering (defined below), and the term "Subscription" shall mean any such
submission. The Company may issue up 20,000,000 shares of Common Stock in the
Rights Offering. The holders set forth on Schedule A attached hereto (the "2007
Investors") have waived their respective rights to participate in the Rights
Offering, and, therefore, those holders set forth on Schedule A are not deemed
Eligible Holders for purposes of this Agreement. However, for a period expiring
ninety days after the expiration of the Rights Offering the Company will allow
the 2007 Investors to subscribe for any of the 20,000,000 shares of Common Stock
that were not purchased in the Rights Offering at the Subscription Price (the
"2007 Investor Offering").
(b) The Rights Offering will expire at 5:00 p.m., Eastern Daylight
Time, on __________, 2008 (the "Expiration Time"), unless the Company shall have
extended the period of time for which the Rights Offering is open, in which
event the term "Expiration Time" shall mean the latest time and date at which
the Rights Offering, as so extended by the Company from time to time, shall
expire.
(c) In connection with the Rights Offering and the 2007 Investor
Offering, the Company has filed a Registration Statement (the "Registration
Statement") with the Securities and Exchange Commission under the Securities Act
of 1933, as amended, (SEC File no. 333-148281). The terms of the Rights Offering
and 2007 Investor Offering are more fully described in the Prospectus (the
"Prospectus") forming part of the Registration Statement, as such Registration
Statement may be declared effective, and the accompanying Subscription
Agreements, forms of which have been filed as exhibits 4.1 and 4.2 to the
Registration Statement. Copies of the Prospectus and the final Subscription
Agreements will be provided to you promptly after the Registration Statement is
declared effective. Promptly after the Record Date, CST will provide the Company
a list of holders of Common Stock as of the Record Date (the "Record Stockholder
List").
(d) The Company hereby appoints CST to act as subscription agent
(the "Subscription Agent") to effect the Rights Offering and with respect to the
2007 Investor Offering in accordance with and subject to the following terms and
conditions.
2. Subscription of Rights and 2007 Investor Offering
(a) The Rights are described in the Prospectus and can be exercised
by executing a Subscription Rights Agreement (the "Subscription Rights
Agreement"), a copy of a form of which is annexed as exhibit 4.1 to the
Registration Statement. "Subscription Rights" shall mean, collectively, the
Basic Subscription Rights (as defined below) and the Over-Subscription Right (as
defined below). Each holder of Subscription Rights who exercises in full his
right to subscribe for the shares of Common Stock that can be subscribed for
(the "Basic Subscription Rights") will have the right to subscribe for
additional Shares of Common Stock at the Subscription Price to the extent that
shares remain available (the "Over-Subscription Right"). If the number of Shares
remaining after the exercise of all Basic Subscription Rights is not sufficient
to satisfy all requests for Shares under the Over-Subscription Rights, the
Eligible Holders who exercised their Over-Subscription Right will be allocated
such remaining Shares in proportion to the number of Shares they have purchased
through the Basic Subscription Rights. If the pro rata allocation exceeds the
number of Shares requested in the Over-Subscription Right, then each Eligible
Holder will receive only the number of Shares requested, and the remaining
Shares from such Eligible Holder's pro rata allocation will be divided among
other holders exercising their Over-Subscription Right. If the pro rata
allocation is less than the number of Shares requested in the Over-Subscription
Right, then the excess funds paid by that Eligible Holder as the Subscription
Price for the Shares not issued will be returned to such Eligible Holder without
interest or deduction.
(b) The Rights may not be sold, transferred, or assigned; provided,
however, that the Rights are transferable by operation of law (for example, upon
death of the recipient).
(c) To the extent that shares of Common Stock remain unsold at the
expiration of the Rights Offering, the 2007 Investors can subscribe for shares
by executing a Subscription Agreement for 2007 Investors, a copy of a form of
which is annexed as exhibit 4.2 to the Registration Statement. Each 2007
Investor can subscribe for as many unsold shares of Common Stock as the investor
chooses on a "first come, first served" basis. If the number of Shares remaining
is not sufficient to satisfy all requests for Shares by the 2007 Investors then
the excess funds paid by the later subscribing 2007 Investors will be returned
to such investors without interest or deduction and no shares will be issued to
them.
3. Duties of Subscription Agent
As Subscription Agent, CST is authorized and directed to do the following:
(a) CST shall prepare and record a list of (i) the names of the
holders of record of Common Stock as of the close of business on the Record
Date, (ii) the names of all the Eligible Holders and (ii) the number of Rights
to which each Eligible Holder is entitled, based on the Rights Ratio. CST will
keep such records as are necessary for the purpose of recording such issuance
and will furnish to the Company a report of such issuance.
(b) CST shall prepare Subscription Rights Agreements for each
Eligible Holder by indicating such Eligible Holder's name and address and the
total number of shares of Common Stock held by such Eligible Holder as of the
Record Date. CST shall issue Subscription Rights Agreements in whole number
denominations to the person entitled thereto in connection with any partial
exercise or transfer permitted under this Agreement to the extent there is
sufficient time to do so prior to the Expiration Date. The Company shall at all
times supply CST with a sufficient number of Subscription Rights Agreements and
Prospectuses for the purposes contemplated by this Agreement. CST shall issue to
each Eligible Holder who subscribes for the purchase of less than all of the
Shares of Common Stock represented by his, her or its Subscription Rights
Agreement, a new Subscription Rights Agreement representing the balance of the
Shares subject to unsubscribed Rights, to the extent reasonably practicable
prior to the Expiration Time.
(c) Copies of all Subscription Rights Agreements surrendered to CST
shall, unless otherwise instructed by the Company in writing to CST, be retained
by CST for six months, and then shall be delivered to the Company. As the
Subscription Rights are non-transferable, other than by operation of law,
subscriptions may not be made and CST shall not accept delivery of subscriptions
by notice of guaranteed delivery. Consequently, all Subscription Rights
Agreements together with payment in full of the Subscription Price for the
Shares must be received by CST no later than the Expiration Date.
(d) Promptly after receiving written notification from the Company,
and subject to receipt by CST from the Company of sufficient copies thereof, CST
shall mail or cause to be mailed by first class mail to each Eligible Holder
whose address of record is within the United States (including its territories
and possessions and the District of Columbia) the following materials, as
appropriate (collectively, the "Subscription Materials"):
(i) a Prospectus;
(ii) a Subscription Rights Agreement;
(iii) a Letter to Stockholders who are Record Holders;
(iv) a return envelope addressed to CST;
(v) any other instructions that are deemed necessary;
(vi) additional forwarding information to the street name
nominees;
(vii) nominee holder certification;
(viii) a Letter to Brokers; and
(ix) Beneficial Ownership Form.
(e) Promptly after receiving written notification from the Company,
and subject to receipt by CST from the Company of sufficient copies thereof, CST
shall mail or cause to be mailed by first class mail to each Eligible Holder
whose address is outside the United States or is an A.P.O. or F.P.O address a
copy of the Subscription Materials.
(f) Promptly, after the expiration of the fourth business day
following the Expiration Time, to the extent that any shares remain unsold under
the Rights Offering , and after receiving written notification from the Company,
and subject to receipt by CST from the Company of sufficient copies thereof, CST
shall mail or cause to be mailed by first class mail to each of the 2007
Investors the following materials, as appropriate (collectively, the
"Subscription Materials"):
(i) a Prospectus; and
(ii) a Subscription Agreement for the 2007 Investors.
(g) Within one business day following the earlier of (i) the
Expiration Time or (ii) the date upon which the Company makes a request, upon
receipt by CST of any Subscription Rights Agreements completed and executed for
exercise and payment, all in accordance with the terms of the Subscription
Rights Agreement and the Prospectus, CST shall provide the Company with a
tabulation of the aggregate number of shares of Common Stock elected to be
purchased by Eligible Holders pursuant to validly exercised Rights (and the
aggregate Subscription Price therefor) and the aggregate number of shares of
Common Stock not subscribed for by Eligible Holders (and the aggregate
Subscription Price therefor) as of the Expiration Date, or the date of request
of the Company, whichever is applicable.
(h) Within two business days following the Expiration Time or upon
request of the Company, if earlier, upon receipt by CST of any Subscription
Rights Agreement completed and executed for exercise and payment of the
Subscription Price, all in accordance with the terms of the Subscription Rights
Agreement and the Prospectus, CST shall calculate the number of Shares for which
each Eligible Holder is entitled to subscribe pursuant to the Basic Subscription
Rights. Within two business days following the Expiration Time, CST shall
calculate the number of shares for which each Eligible Holder that has exercised
its respective Basic Subscription Rights in full, is entitled to subscribe
pursuant to the Over-Subscription Right. The Over-Subscription Right may only be
exercised by Eligible Holders who exercised their Basic Subscription Rights in
full, and only up to the number of shares that remain eligible under the Rights
Offering. The Shares available pursuant to the Over-Subscription Right will be
those that have not been subscribed and paid for pursuant to the Basic
Subscription Rights (collectively, the "Remaining Shares"). If there are
sufficient Remaining Shares to satisfy all additional subscriptions by holders
exercising their rights under the Over-Subscription Right, each holder shall be
allotted the number of additional shares of Common Stock for which they have
subscribed. If the aggregate number of shares of Common Stock subscribed for
under the Over-Subscription Right exceeds the number of Remaining Shares, the
number of Remaining Shares allotted to each participant in the Over-Subscription
Right shall be the product (disregarding fractions) obtained by multiplying the
number of Remaining Shares by a fraction the numerator of which is the number of
shares of Common Stock subscribed for by that Over-Subscription Right
participant under the Basic Subscription Rights and the denominator is the
aggregate number of shares of Common Stock subscribed for by all
Over-Subscription Right participants under their Basic Subscription Rights. Upon
calculating the number of shares of Common Stock to which each subscriber is
entitled pursuant to the Basic Subscription Rights and the Over-Subscription
Right and the amount overpaid, if any, by each subscriber, CST shall, by the
close of business on the second business day following the Expiration Time or,
upon request of Xxxxxx Xxxxxx, Inc. with respect to Basic Subscription Rights,
if earlier, furnish a list of all such subscribers, shares, and overpayments to
the Company, as applicable. Notwithstanding anything to the contrary contained
in this Agreement, the Company retains the right to reject any exercise of any
Subscription Rights for any reason prior to acceptance of the Subscription Price
therefor.
(i) CST will date and time stamp, upon receipt, all documents
received by it as Subscription Agent. CST shall examine the Subscription Rights
Agreement and the Subscription Agreements for 2007 Investors and other documents
delivered or mailed to CST by or for the Eligible Holders or the 2007 Investors
to ascertain whether (i) the Subscription Rights Agreements of the Subscription
Agreement for the 2007 Investors are properly completed and duly executed in
accordance with the instructions set forth herein, (ii) to the extent that the
Over-Subscription Right is exercised, the Eligible Holder has duly exercised all
of his Basic Subscription Rights, (iii) the proper payment accompanies the
Subscription Rights Agreements, and (iv) any other necessary documents are
properly completed and duly executed. CST need not pass on the legal sufficiency
of any signature or verify any signature guarantee. CST is authorized, upon
consultation with the Company or one or more of its representatives, to request
from any person exercising Subscription Rights or a Subscription Agreement for
the 2007 Investors such additional undertakings as CST may deem appropriate. CST
is not authorized to accept any alternative, conditional or contingent purchase,
or any purchase of fractional shares of Common Stock.
(j) The closing of the Rights Offering, will occur at 10:00 a.m.,
Eastern Daylight Time, on the fourth business day following the Expiration Time
or such time as Subscription Price is remitted to the Company, from time to
time, if earlier (each a "Closing Date"). Closing Dates for any purchases of
Common Stock in the 2007 Investor Offering shall occur at such times as the
Company and CST shall determine. At the Closing Date, CST shall remit to the
Company (i) such funds received in payment of the Subscription Price for shares
of Common Stock sold at such Closing Date provided that any funds that clear
after such time shall be remitted by CST to the Company as soon as is
practicable after such funds have cleared and (ii) the Subscription Rights
Agreements or the Subscription Agreement for the 2007 Investors, as the case may
be. CST shall as soon as practicable after a Closing Date mail to the
subscribers' registered addresses certificates representing the Common Stock
duly subscribed for pursuant to the Basic Subscription Rights and the
Over-Subscription Right or pursuant to the 2007 Investor Offering or credit the
Depositary Trust Company's nominee position with the Common Stock duly
subscribed for pursuant to the Basic Subscription Rights and the
Over-Subscription Right or in the 2007 investor Offering by book-entry transfer
and refund payments to subscribers for additional shares of Common Stock
subscribed for but not allocated, if any.
(k) (i) If the Eligible Holder does not indicate the number of
Subscription Rights being exercised, or if the Eligible Holder does not forward
full payment of the total Subscription Price for the number of Subscription
Rights that the Eligible Holder indicates are being exercised, then the Eligible
Holder will be deemed to have exercised his, her or its Basic Subscription
Rights with respect to the maximum number of Subscription Rights that may be
exercised with the aggregate Subscription Price payment CST received from the
Eligible Holder. Unless the Eligible Holder has specified the number of shares
he, she or it wishes to purchase upon exercise of his, her or its
Over-Subscription Right, any payment in excess of that required to exercise his,
her or its Basic Subscription Rights in full will be applied as if he, she or it
exercised his, her or its Over-Subscription Right to the extent of such excess
payment. If the payment exceeds the Subscription Price for the full exercise of
the Basic Subscription Right and Over-Subscription Rights (to the extent
specified by the Eligible Holders), the excess will be returned to the Eligible
Holder as soon as practicable. The Eligible Holder will not receive interest on
any payments refunded to he, she or it under the Rights Offering. (ii) If a
subscribing 2007 Investor does not indicate the number of shares of Common Stock
being purchased in the 2007 investor Offering, or if the 2007 Investor does not
forward full payment of the total Subscription Price for the number of shares
that the 2007 Investor Holder indicates are being purchased, then the 2007
Investor will be deemed to have subscribed for the maximum number of shares
Rights that may be purchased with the aggregate Subscription Price payment CST
received from the 2007 Investor. If the payment by a 2007 Investors exceeds the
Subscription Price for the number of shares that are eligible to be purchased by
the 2007 Investors, the excess will be returned to the 2007 Investor as soon as
practicable. The 2007 Investor will not receive interest on any payments
refunded to he, she or it under the 2007 Investor Offering.
(l) CST shall accept Subscriptions in accordance with the procedures
set forth above, 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 the Subscription Rights Agreement is executed by and
the Common Stock is to be issued in the name of the Eligible Holder;
(ii) if the Subscription Rights Agreement is executed by one
of the joint tenants, provided the certificate representing the Common Stock is
issued in the names of, and is to be delivered to, such joint tenants;
(iii) if the Subscription Rights Agreement is executed by a
person in a manner which appears or purports to be done in the capacity of an
officer, or agent of a corporation owning shares of Common Stock at the Record
Date provided the Common Stock is to be issued in the name of such corporation;
or
(iv) if the Subscription Rights Agreement is executed by a
person purporting to act as an executor, administrator, or personal
representative of an individual owning shares of Common Stock at the Record
Date, provided that the 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.
(v) To the extent applicable, subparagraphs (i)-(iv) above
will apply to 2007 Investors who purchase shares of Common Stock in the 2007
Investor Offering.
4. Acceptance and Records of Subscriptions
(a) CST shall hold all monies received in an account for the benefit
of the Company. CST will not be obligated to calculate or pay interest to any
holder or any other party claiming through a holder or otherwise. It is hereby
agreed immediately following the effective date of the Subscription, immediately
available funds, represented by cashier's or certified check, bank draft drawn
upon a U.S. bank or any postal, telegraphic or express money order payable to
"Corporate Stock Transfer, Inc., as agent for Xxxxxx Xxxxxx, Inc." or wire
transfers will be deposited with CST. Personal checks will not be accepted.
(b) With respect to the Rights Offering, and, to the extent
applicable, with respect to the 2007 Investor Offering, CST shall advise the
Company daily by e-mail to the attention of Xxx Xxxxxxxxxxx, Esq. (the "Company
Representative") as to the total number of Shares 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
(c) As promptly as possible but in any event on or before the close
of business on the second business day following the Expiration Time, CST shall
advise the Company Representative in accordance with (a) above of the number of
Shares Subscribed for.
5. Completion of Rights Offering and the 2007 Investor Offering
(a) CST, in its capacity as the Company's transfer agent, shall
issue certificates (or otherwise coordinate with the Depository Trust Company
the appropriate credit of accounts of beneficial owners of the Company's Common
Stock held in street name) for the Shares purchased in the Rights Offering or
the 2007 Investor Offering, as the case may be, not later than ten (10) Business
Days after the Expiration Date (as to the Rights Offering) or the final Closing
Date of the 2007 Investor Offering, (or such earlier dates as instructed by the
Company), provided that CST, in its capacity as Subscription Agent, shall have
previously received good funds in the amount of the Subscription Price for such
Shares. No Eligible Holder, as such, shall be a shareholder with respect to such
Shares and no such Shares shall be deemed to be outstanding until such Shares
are issued in accordance herewith.
(b) At such times that CST issues the certificates for the Shares
purchased in the Rights Offering or in the 2007 Investor Offering, as the case
may be, CST shall promptly pay to the Company the monies received for the
Subscription Price for such Shares issued.
(c) CST shall deliver certificates of Common Stock, or shall cause
Common Stock to be delivered by book-entry transfer through the Depository Trust
Company, for Shares for which Subscriptions have been received.
(d) 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 to permit the exercise in full of all Rights issued
pursuant to the Rights Offering and shares sold in the 2007 Investor Offering.
(e) 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 issuable upon the exercise of the Rights or
pursuant to the 2007 Investor Offering 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 non-assessable 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.
(f) 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 Rights
Offering and the 2007 Investor Offering.
6. Procedure for Discrepancies
CST shall follow its regular procedures to attempt to reconcile any
discrepancies between the number of Shares that any Subscription Rights
Agreement 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 CST cannot reconcile such discrepancies by following such
procedures, CST will consult with the Company for instructions as to the number
of Shares, if any, it is authorized to issue. In the absence of such
instructions, CST is authorized not to issue any Shares to such stockholder.
7. Procedure for Deficient Items
CST shall examine the Subscription Rights Agreements and Subscription
Agreement for 2007 Investors received by it as Subscription Agent to ascertain
whether they appear to have been completed and executed in accordance with the
Subscription Rights Agreements or the Subscription Agreements for 2007
Investors, as the case may be. In the event CST determines that any Subscription
Rights Agreement or Subscription Agreement for 2007 Investors does not appear to
have been properly completed or executed, or where the Subscription Rights
Agreements or Subscription Agreement for 2007 investors do not appear to be in
proper form for Subscription, or any other irregularity in connection with the
Subscription appears to exist, CST shall follow, where possible, its regular
procedures to attempt to cause such irregularity to be corrected. The Company
shall have the absolute right to reject any defective exercise of rights or to
waive any defect in exercise. Unless requested to do so by the Company, CST
shall not be under any duty to give notification to holders of Subscription
Rights Agreements or Subscription Agreements for 2007 Investors of any defects
or irregularities in the exercise of subscriptions. CST is not authorized to
waive any irregularity in connection with the Subscription, unless CST shall
have received from the Company the Subscription Rights Agreement or subscription
Agreement for 2007 investors, as the case may be, which was delivered, duly
dated and signed by an authorized officer of the Company, indicating that any
irregularity in such Subscription Rights Agreement or Subscription Agreement for
2007 Investors, has been cured or waived and that such Subscription Rights
Agreement or Subscription Agreement for 2007 Investors, as the case may be, has
been accepted by the Company. If any such irregularity is neither corrected nor
waived, CST will return to the subscribing stockholder (at its option by either
first class mail under a blanket surety bond or insurance protecting CST and the
Company from losses or liabilities arising out of the non-receipt or nondelivery
of Subscription Rights Agreements or Agreement or Subscription Agreement for
2007 Investors or by registered mail insured separately for the value of such
Subscription Rights Agreements) to such stockholder's address as set forth in
the Subscription any Subscription Rights Agreements or Subscription Agreement
for 2007 Investors surrendered in connection therewith and any other documents
received with such Subscription Rights Agreements or Subscription Agreements for
2007 Investors.
8. Date/Time Stamp
Each document received by CST relating to its duties hereunder shall be
dated and time stamped when received.
9. Tax Reporting
Should any issue arise regarding federal income tax reporting or
withholding, CST shall take such action as the Company reasonably instructs in
writing, which action may be subject to additional fees.
10. Authorizations and Protections
As agent for the Company hereunder CST:
(a) shall have no duties or obligations other than those
specifically set forth herein or as may subsequently be agreed to in writing by
CST and the Company;
(b) shall have no obligation to issue any Shares unless the Company
shall have provided a sufficient number of certificates for such Shares;
(c) shall be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value, or genuineness of any
Subscription Rights Agreements or Subscription Agreement for 2007 Investors
surrendered to CST hereunder or Shares 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 Rights Offering or the 2007
Investor Offering;
(d) shall not be obligated to take any legal action hereunder; if,
however, CST determines to take any legal action hereunder, and where the taking
of such action might, in CST's judgment, subject or expose it to any expense or
liability CST shall not be required to act unless it shall have been furnished
with an indemnity satisfactory to it;
(e) in accordance with Section 3 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 CST and reasonably 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 Rights Offering, 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 of
officers of the Company in accordance with Sections 3, 6, and 7 with respect to
any matter relating to CST's acting as Subscription Agent covered by this
Agreement (or supplementing or qualifying any such actions);
(i) may consult with counsel satisfactory to CST, including internal
counsel, and the advice of such counsel shall be full and complete authorization
and protection in respect of any action taken, suffered, or omitted by CST
hereunder in good faith and in reliance upon the advice of such counsel;
(j) is not authorized, and shall have no obligation, to pay any
brokers, dealers, or soliciting fees to any person; and
(k) may perform any of its duties hereunder either directly or by or
through agents or attorneys.
11. Limitation of Liability
(a) In the absence of gross negligence, intentional misconduct or
bad faith on its part or on the part of any employees, agents or independent
contractors used by CST in connection with the performance of its duties as
Subscription Agent, CST shall not be liable for any action taken, suffered, or
omitted by it or for any error of judgment made by it in the performance of its
duties under this Agreement. Anything in this agreement to the contrary
notwithstanding, in no event shall CST be liable for special, indirect,
incidental or consequential loss or damage of any kind whatsoever (including but
not limited to lost profits), even if CST has been advised of the likelihood of
such damages and regardless of the form of action. Any liability of CST will be
limited to the amount of fees paid by the Company hereunder.
(b) In the event any question or dispute arises with respect to the
proper interpretation of this Agreement or CST's duties hereunder or the rights
of the Company or of any holders of Subscription Rights Agreements or
Subscription Agreement for 2007 Investors, CST shall not be required to act and
shall not be held liable or responsible for refusing to act until the question
or dispute has been judicially settled (and CST may, if it deems it advisable,
but shall not be obligated to, 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 stockholders and 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 CST and executed by the Company and each
such stockholder and party. In addition, CST 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. Notices
All notices, demands and other communications given pursuant to the terms
and provisions hereof shall be in writing, shall be deemed effective on the date
of receipt, and may be sent by facsimile, overnight delivery services, or by
certified or registered mail, return receipt requested to:
If to the Company: with an additional copy to:
Xxxxxx Xxxxxx, Inc. Blank Rome, LLP
00 Xxxxxxx Xxxxxx 000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxx Xxxxxxxxxxx Attn: Ethan Seer, Esq.
Tel: (000) 000-0000 Fax: (000) 000-0000
Fax: Tel: (000) 000-0000
If to CST: with an additional copy to:
Attn: Attn:
Tel: Tel:
Fax: Fax:
13. Specimen Signatures
Set forth in Exhibit 5 hereto is a list of the names and specimen
signatures of the persons authorized to act for the Company under this
Agreement. The Secretary or an Assistant Secretary of the Company shall, from
time to time, certify to CST the names and signatures of any other persons
authorized to act for the Company, as the case may be, under this Agreement.
14. Instructions
Any instructions given to CST orally, as permitted by any provision of
this Agreement, shall be confirmed in writing by the Company as soon as
practicable. CST shall not be liable or responsible and shall be fully
authorized and protected for acting, or failing to act, in accordance with any
oral instructions which do not conform with the written confirmation received in
accordance with this Section.
15. Fees
Whether or not any Subscription Rights Agreements or Subscription
Agreement for 2007 Investors are surrendered to CST, for its services as
Subscription Agent hereunder, the Company shall pay to CST compensation in
accordance with the fee schedule mutually agreed to by the Company and CST,
together with reimbursement for all reasonable expenses, not to exceed $2,500
without the prior written consent of the Company. All amounts owed to CST
hereunder are due upon receipt of the invoice.
16. Termination
The Company may terminate this Agreement at any time by so notifying CST
in writing. CST may terminate this Agreement upon sixty (60) days prior written
notice to the Company, but only if the Company is in breach of its obligations
hereunder and such breach is not cured within such period of sixty (60) days.
Unless so terminated, this Agreement shall continue in effect until all Shares
have been received and paid for by eligible holders. In the event of such
termination, the Company will appoint a successor Subscription Agent and inform
CST of the name and address of any successor Subscription Agent so appointed,
provided that no failure by the Company to appoint such a successor Subscription
Agent shall affect the termination of this Agreement or the discharge of CST as
Subscription Agent hereunder. Upon any such termination, CST shall be relieved
and discharged of any further responsibilities with respect to its duties
hereunder. Upon payment of all outstanding fees and expenses hereunder, CST
shall promptly forward to the Company or its designee any Subscription Rights
Certificates or Agreement, Subscription Agreement for 2007 Investors or other
documents that CST may receive after its appointment has so terminated.
17. Force Majeure
CST shall not be liable for any failure or delay arising out of conditions
beyond its reasonable control including, but not limited to, work stoppages,
fires, civil disobedience, riots, rebellions, storms, electrical, mechanical,
computer or communications facilities failures, acts of God or similar
occurrences.
18. Miscellaneous
(a) 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.
(b) No provision of this Agreement may be amended, modified or
waived, except in writing signed by all of the parties hereto.
(c) In the event that any claim of inconsistency between this
Agreement and the terms of the Rights Offering arise, as they may from time to
time be amended, the terms of the Rights Offering, as set forth in the
Prospectus, shall control, except with respect to CST's duties, liabilities and
rights, including without limitation compensation, which shall be controlled by
the terms of this Agreement.
(d) 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 the parties hereto to the full extent permitted by applicable
law.
(e) This Agreement shall be binding upon, inure to the benefit of,
and be enforceable by, the respective successors and assigns of the parties
hereto.
(f) This Agreement may not be assigned by any party without the
prior written consent of all parties.
(g) Sections 10, 11 and 17 hereof shall survive termination of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized officers as of the day and year above written.
XXXXXX XXXXXX, INC.
By:
------------------------------------
Name:
Title:
Accepted as of the date
Above first written:
CORPORATE STOCK TRANSFER, INC.
AS SUBSCRIPTION AGENT
----------------------------------------
Name:
Title:
SCHEDULE A
EXCLUDED STOCKHOLDERS
Xxxxx Xxxxx
NFS LLC / FMTC FBO Xxxx Xxxxx
Xxxx X. Xxxxxx Trust dated May 30, 2000
Reliance Trust Co Trustee, Xxxxxx + Ciocia, Inc. 401K Plan & Trust, FBO Xxxxx
Xxxxxx
Xxxxxxx X. Xxxxxxxxx and Xxxxxxxx Xxxxxxxxx, JTWROS
Xxxxxxxx X. Xxxxxx and Xxxxxxxx Xxxxxx, JTWROS
Xxxxx Xxxxxx
Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxx Revocable Trust dated July 2, 2004
Reliance Trust Co Trustee, Xxxxxx + Ciocia, Inc. 401K Plan & Trust, FBO Xxxxxxx
X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Reliance Trust Co Trustee, Xxxxxx + Ciocia, Inc. 401K Plan & Trust, FBO Xxxxxx
X. Xxxxxxx
Xxxxxx Xxxxxx
Reliance Trust Co Trustee, Xxxxxx + Ciocia, Inc. 401K Plan & Trust, FBO Xxxxxx
Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxxx and Xxxxxx X. Xxxxxxxxx, JTWROS
Xxxxxx X. Xxxx
Xxx X. Xxxxxxxxxxx
Reliance Trust Co Trustee, Xxxxxx + Ciocia, Inc. 401K Plan & Trust, FBO Xxx X.
Xxxxxxxxxxx
NFS LLC / FMTC FBO Xxx X. Xxxxxxxxxxx
Reliance Trust Co Trustee, Xxxxxx + Xxxxxx, Inc. 401K Plan & Trust, FBO Xxxxx
Xxxxxx
Xxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxx
Xxxx X. Xxxxx
Reliance Trust Co Trustee, Xxxxxx + Ciocia, Inc. 401K Plan & Trust, FBO Xxxx X.
Xxxxx
NFS LLC / FMTC FBO Xxxx X. Xxxxx
NFS LLC / FMTC FBO Xxxx Xxxxx
Xxxxxxx X. Xxxxxx and Xxxxxxxx X. Xxxxxx, JTWROS
Xxxxx Xxxxxxxx
Reliance Trust Co Trustee, Xxxxxx + Xxxxxx, Inc. 401K Plan & Trust, FBO Xxxxxxx
X. Xxxxx
Xxxxxxxxxxx X. Xxxxx
MLPF&S Cust FPO Xxxxxxxxxxx X. Xxxxx XXXX
Xxxxxxxxxxx X. Xxxxx C/F Xxxxx X. Xxxxx UTMA/MD
Xxxxxxxxxxx X. Xxxxx C/F Xxxxxx X. Xxxxx UTMA/MD
Reliance Trust Co Trustee, Xxxxxx + Ciocia, Inc. 401K Plan & Trust, FBO Xxxxxxxx
Xxxxxx
Xxxxx X. Xxxxxx and Xxxxx Xxxxxx, JTWROS
Mutual, Inc.
Xxxxxxx X. X'Xxxxxxx
Xxxxx X. Page
Prime Partners II, LLC
Reliance Trust Co Trustee, Xxxxxx + Ciocia, Inc. 401K Plan & Trust, FBO Rose
Xxxxxx
Xxxx Subes
Xxxxxxx Xxxxxx
Xxxxx X. Xxxxx
Reliance Trust Co Trustee, Xxxxxx + Ciocia, Inc. 401K Plan & Trust, FBO Xxxx X.
Xxxxxxxxxx
Wynnefield Small Cap Value Offshore Fund, Ltd
Wynnefield Partners Small Cap Value, L.P.
Wynnefield Partners Small Cap Value, L.P. I
WebFinancial Corporation
