Exhibit 99.7
SUBSCRIPTION AGENT AGREEMENT
This Subscription Agent Agreement (the "Agreement") is made as of November
____, 2008 between Blue Valley Ban Corp., a Kansas corporation (the "Company"),
Computershare, Inc., a Delaware corporation and its fully owned subsidiary
Computershare Trust Company, N.A., a federally chartered trust company
(collectively, the "Agent" or individually "Computershare" and the "Trust
Company", respectively). All terms not defined herein shall have the meaning
given in the prospectus (the "Prospectus") included in the (Registration
Statement on Form S-1, File No. 333-154414 filed by the Company with the
Securities and Exchange Commission on October 17, 2008, as amended by any
amendment filed with respect thereto (the "Registration Statement").
WHEREAS, the Company proposes to make a subscription offer by issuing
certificates or other evidences of subscription rights, in the form designated
by the Company (the "Subscription Certificates") to shareholders of record (the
"Shareholders") of its Common Stock, par value $1.00 per share ("Common Stock"),
as of a record date specified by the Company (the "Record Date"), pursuant to
which each Shareholder will have certain rights (the "Rights") to subscribe for
shares of Common Stock, as described in and upon such terms as are set forth in
the Prospectus, a final copy of which has been or, upon availability will
promptly be, delivered to the Agent; and
WHEREAS, the Company wishes the Agent to perform certain acts on behalf of
the Company, and the Agent is willing to so act, in connection with the
distribution of the Subscription Certificates and the issuance and exercise of
the Rights to subscribe therein set forth, all upon the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
agreements set forth herein, the parties agree as follows:
1. Appointment.
The Company hereby appoints the Agent to act as subscription agent in
connection with the distribution of Subscription Certificates and the issuance
and exercise of the Rights in accordance with the terms set forth in this
Agreement and the Agent hereby accepts such appointment.
2. Form and Execution of Subscription Certificates.
A. Each Subscription Certificate shall be irrevocable and non-transferable.
The Agent shall, in its capacity as transfer agent of the Company, maintain a
register of Subscription Certificates and Record Date Shareholders. Each
Subscription Certificate shall, subject to the provisions thereof, entitle the
Record Date Shareholder to the following:
(1) The right to acquire during the subscription period, as described
in the Prospectus, (the "Subscription Period") at the exercise price, as
described in the Prospectus, a number of shares of Common Stock equal to
.1352 of a share of Common Stock for every one Right (the "Primary
Subscription Right"); and
(2) The right to subscribe for additional shares of Common Stock,
subject to the availability of such shares and to the allotment of such
shares as may be available among Record Date
Shareholders who exercise over-subscription rights on the basis specified
in the Prospectus; provided, however, that such Record Date Shareholder has
exercised all Primary Subscription Rights issued to him or her (the
"Over-Subscription Privilege").
3. Rights and Issuance of Subscription Certificates.
A. Each Subscription Certificate shall evidence the Rights of the
Shareholder therein named to purchase Common Stock upon the terms and conditions
therein and herein set forth.
B. Upon the written advice of the Company, signed by any of its duly
authorized officers, as to the Record Date, the Agent shall, from a list of the
Company Shareholders as of the Record Date to be prepared by the Agent and
agreed to by the Company, prepare and record Subscription Certificates in the
names of the Shareholders, setting forth the number of Rights to subscribe for
the Company's Common Stock calculated on the basis of one Right for .1352 shares
of Common Stock recorded on the books in the name of each such Shareholder as of
the Record Date. The number of Rights that are issued to Record Date
Shareholders will be rounded down by the Agent, to the nearest number of full
Rights as fractional Rights will not be issued. Each Subscription Certificate
shall be dated as of the Record Date and shall be executed manually or by
facsimile signature by a duly authorized officer of the Company. Upon the
written advice, signed as aforesaid, as to the effective date of the
Registration Statement, the Agent shall promptly countersign and deliver the
Subscription Certificates, together with a copy of the Prospectus, instruction
letter and any other document as the Company deems necessary or appropriate, to
all Shareholders with record addresses in the United States (including its
territories and possessions and the District of Columbia). Delivery shall be by
first class mail (without registration or insurance), [except for those
Shareholders having a registered address outside the United States (who will
only receive copies of the Prospectus, instruction letter and other documents as
the Company deems necessary or appropriate, if any), delivery shall be by air
mail (without registration or insurance) and by first class mail (without
registration or insurance) to those Shareholders having APO or FPO addresses.]
No Subscription Certificate shall be valid for any purpose unless so
executed.
[C. The Agent will mail a copy of the Prospectus, instruction letter, a
special notice and other documents as the Company deems necessary or
appropriate, if any, but not Subscription Certificates to Record Date
Shareholders whose record addresses are outside the United States (including its
territories and possessions and the District of Columbia ) ("Foreign Record Date
Shareholders"). The Rights to which such Subscription Certificates relate will
be held by the Agent for such Foreign Record Date Shareholders' accounts until
instructions are received to exercise, sell or transfer the Rights.]
4. Exercise.
A. Record Date Shareholders may acquire shares of Common Stock on Primary
Subscription Rights and pursuant to the Over-Subscription Privilege by delivery
to the Agent as specified in the Prospectus of (i) the Subscription Certificate
with respect thereto, duly executed by such Shareholder in accordance with and
as provided by the terms and conditions of the Subscription Certificate,
together with (ii) the estimated purchase price, as disclosed in the Prospectus,
for each share of Common Stock subscribed for by exercise of such Rights, in
U.S. dollars by wire transfer, money order or check drawn on a bank in the
United States, in each case payable to the order of Computershare Inc. In the
case of
2
Record Date Shareholders who hold shares of Common Stock as a depository or
nominee, such purchase price must be paid to Computershare Inc. by wire transfer
only.
B. Rights may be exercised at any time after the date of issuance of the
Subscription Certificates with respect thereto but no later than 5:00 P.M.
Eastern time on such date as the Company shall designate to the Agent in writing
(the "Expiration Date"). For the purpose of determining the time of the exercise
of any Rights, delivery of any material to the Agent shall be deemed to occur
when such materials are received at the Agent's designated address specified in
the Prospectus.
C. Notwithstanding the provisions of Section 4(A) and 4(B) regarding
delivery of an executed Subscription Certificate to the Agent prior to 5:00 P.M.
Eastern time on the Expiration Date, if prior to such time the Agent receives a
Notice of Guaranteed Delivery by facsimile (telecopy) or otherwise from a bank,
a trust company or registered broker/dealer guaranteeing delivery of (i) payment
of the full Subscription Price for the shares of Common Stock subscribed for on
Primary Subscription and any additional shares of Common Stock subscribed for
pursuant to the Over-Subscription Privilege, and (ii) a properly completed and
executed Subscription Certificate, then such exercise of Primary Subscription
Rights and Over-Subscription Rights shall be regarded as timely, subject,
however, to receipt of the duly executed Subscription Certificate and full
payment for the Common Stock (via wire transfer only) by the Agent within three
Business Days (as defined below) after the Expiration Date (the "Protect
Period"). For the purposes of the Prospectus and this Agreement, "Business Day"
shall mean any day on which trading is conducted on the New York Stock Exchange.
D. As soon as practicable after conclusion of the Protect Period, and in no
event more than four Business Days thereafter, Computershare shall send to each
exercising Shareholder (or, if shares of Common Stock on the Record Date are
held by Cede & Co. or any other depository or nominee, to Cede & Co. or such
other depository or nominee) a confirmation showing the number of shares of
Common Stock acquired pursuant to the Primary Subscription, and, if applicable,
the Over-Subscription Privilege, the per share and total purchase price for such
shares, and any excess to be refunded by the Company to such shareholder in the
form of a check and stub, along with a letter explaining the allocation of
shares of Common Stock pursuant to the Over-Subscription Privilege (the
"Confirmation").
E. Any excess payment to be refunded by the Company to a shareholder will
be mailed by Computershare with the Confirmation. Computershare will not issue
or deliver certificates or Statements of Holding for shares subscribed for until
payment in full therefore has been received, including collection of checks and
payment pursuant to notices of guaranteed delivery.
5. Validity of Subscriptions.
Irregular subscriptions not otherwise covered by specific instructions
herein shall be submitted to an appropriate officer of the Company and handled
in accordance with his or her instructions. Such instructions will be documented
by the Agent indicating the instructing officer and the date thereof.
6. Over-Subscription.
If, after allocation of shares of Common Stock to Record Date Shareholders,
there remain unexercised Rights, then the Agent shall allot the shares issuable
upon exercise of such unexercised Rights (the "Remaining Shares") to
shareholders who have exercised all the Rights initially issued to
3
them and who wish to acquire more than the number of shares for which the Rights
issued to them are exercisable. If the number of shares for which the
Over-Subscription Privilege has been exercised is greater than the Remaining
Shares, then the Company may elect to honor the Over-Subscription Privilege in
an amount up to an additional 66,800 shares (the "Additional Shares"). The Agent
shall allocate the Remaining Shares, and any Additional Shares, to Record Date
Shareholders exercising their Over-Subscription Privilege based on the number of
shares of Common Stock owned by them on the Record Date. The percentage of
Remaining Shares each over-subscribing Record Date Shareholder will acquire will
be rounded up or down to result in delivery of whole shares of Common Stock. The
Agent shall advise the Company immediately upon the completion of the allocation
set forth above as to the total number of shares subscribed and distributable.
7. Delivery of Shares.
The Agent will deliver (i) certificates or Statements of Holding reflecting
new shares of Company Common Stock in the Direct Registration System,
representing those shares of Common Stock purchased pursuant to exercise of
Primary Subscription Rights as soon as practicable after the corresponding
Rights have been validly exercised and full payment for such shares has been
received and cleared and (ii) certificates or Statements of Holding representing
those shares purchased pursuant to the exercise of the Over-Subscription
Privilege as soon as practicable after the Expiration Date and after all
allocations have been effected.
8. Holding Proceeds of Rights Offering.
The proceeds are handled in accordance with the terms and conditions set
forth in Exhibit C.
9. Reports.
Daily, during the period commencing on the date Subscription Certificates
are mailed to the Record Date Shareholders, until termination of the
Subscription Period, the Agent will report by telephone or telecopy, confirmed
by letter, to an officer of the Company, data regarding Rights exercised, the
total number of shares of Common Stock subscribed for, and payments received
therefore, bringing forward the figures from the previous day's report in each
case so as to show the cumulative totals and any such other information as may
be mutually determined by the Company and the Agent. Agent shall also maintain
an online database that the Company can access with up to date information on
the total number of shares of Common Stock subscribed for and payments received
therefor.
4
10. Loss or Mutilation.
If any Subscription Certificate is lost, stolen, mutilated or destroyed,
the Agent may, on such terms which will indemnify and protect the Company and
the Agent as the Agent may in its discretion impose (which shall, in the case of
a mutilated Subscription Certificate include the surrender and cancellation
thereof), issue a new Subscription Certificate of like denomination in
substitution for the Subscription Certificate so lost, stolen, mutilated or
destroyed.
11. Compensation for Services.
The Company agrees to pay to the Agent compensation for its services
hereunder in accordance with its Fee Schedule to act as Agent attached hereto as
Exhibit A. The Company further agrees that it will reimburse the Agent for its
reasonable out-of-pocket expenses incurred in the performance of its duties as
such.
12. Instructions, Indemnification and Limitation of Liability.
The Agent undertakes the duties and obligations imposed by this Agreement
on the terms and conditions set forth in Exhibit B.
5
will cooperate in the defense thereof, and (iii) the Company shall not be liable
for any settlement effected without its prior written consent.
D. The Agent shall be responsible for and shall indemnify and hold the
Company harmless from and against any and all losses, damages, costs, charges,
counsel fees, payments, expenses and liability arising out of or attributable to
Agent's refusal or failure to comply with the terms of this Agreement, or which
arise out of Agent's negligence or willful misconduct or which arise out of the
breach of any representation or warranty of Agent hereunder, for which Agent is
not entitled to indemnification under this Agreement.
13. Changes in Subscription Certificate.
The Agent may, without the consent or concurrence of the Shareholders in
whose names Subscription Certificates are registered, by supplemental agreement
or otherwise, concur with the Company in making any changes or corrections in a
Subscription Certificate that it shall have been advised by counsel (who may be
counsel for the Company) is appropriate to cure any ambiguity or to correct any
defective or inconsistent provision or clerical omission or mistake or manifest
error therein or herein contained, and which shall not be inconsistent with the
provision of the Subscription Certificate except insofar as any such change may
confer additional rights upon the Shareholders.
14. Assignment/Delegation.
A. Except as provided in Section 14(B) below, neither this Agreement nor
any rights or obligations hereunder may be assigned or delegated by either party
without the written consent of the other party.
B. The Agent may, without further consent on the part of the Company,
subcontract with other subcontractors for systems, processing, telephone and
mailing services, and post-exchange activities, as may be required from time to
time; provided, however, that the Agent shall be as fully responsible to the
Company for the acts and omissions of any subcontractor as it is for its own
acts and omissions.
C. Except as explicitly stated elsewhere in this Agreement, nothing under
this Agreement shall be construed to give any rights or benefits in this
Agreement to anyone other than the Agent and the Company and the duties and
responsibilities undertaken pursuant to this Agreement shall be for the sole and
exclusive benefit of the Agent and the Company.
15. Governing Law.
The validity, interpretation and performance of this Agreement shall be
governed by the law of the Commonwealth of Massachusetts and shall inure to the
benefit of and the obligations created hereby shall be binding upon the
successors and permitted assigns of the parties hereto.
16. Third Party Beneficiaries.
This Agreement does not constitute an agreement for a partnership or joint
venture between the Agent and the Company. Neither party shall make any
commitments with third parties that are binding on the other party without the
other party's prior written consent.
6
17. Force Majeure.
In the event either party is unable to perform its obligations under the
terms of this Agreement because of acts of God, strikes, terrorist acts,
equipment or transmission failure or damage reasonably beyond its control, or
other cause reasonably beyond its control, such party shall not be liable for
damages to the other for any damages resulting from such failure to perform or
otherwise from such causes. Performance under this Agreement shall resume when
the affected party or parties are able to perform substantially that party's
duties.
18. Consequential Damages.
Neither party to this Agreement shall be liable to the other party for any
consequential, indirect, special or incidental damages under any provisions of
this Agreement or for any consequential, indirect, penal, special or incidental
damages arising out of any act or failure to act hereunder even if that party
has been advised of or has foreseen the possibility of such damages.
19. Severability.
If any provision of this Agreement shall be held invalid, unlawful, or
unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired.
20. Counterparts.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original and all of which together shall be considered one
and the same agreement.
21. Captions.
The captions and descriptive headings herein are for the convenience of the
parties only. They do not in any way modify, amplify, alter or give full notice
of the provisions hereof.
22. Confidentiality.
The Agent and the Company agree that all books, records, information and
data pertaining to the business of the other party which are exchanged or
received pursuant to the negotiation or the carrying out of this Agreement
including the fees for services set forth in the attached schedule shall remain
confidential, and shall not be voluntarily disclosed to any other person, except
as may be required by law.
23. Term and Termination.
This Agreement shall remain in effect until the earlier of (a) thirty (30)
days after the Expiration Date; (b) it is terminated by either party upon a
material breach of this Agreement which remains uncured for 10 days after
written notice of such breach has been provided; or (c) 30 days' written notice
has been provided by either party to the other. Upon termination of the
Agreement, the Agent shall retain all canceled Certificates and related
documentation as required by applicable law.
24. Notices.
Until further notice in writing by either party hereto to the other party,
all written reports, notices and other communications between the Exchange Agent
and the Company required or permitted hereunder shall be delivered or mailed by
first class mail,
7
postage prepaid, telecopy or overnight courier guaranteeing next day delivery,
addressed as follows:
If to the Company, to:
Blue Valley Ban Corp.
00000 Xxxxx
Xxxxxxxx Xxxx, XX 00000-0000
Attn: Xxxx Xxxxxxx, Chief Financial Officer
If to the Agent, to:
Computershare Trust Company, N.A.
C/o Computershare, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Reorganization Department
25. Survival.
The provisions of Paragraphs 12, 15, 17-19, 22, and 24-26 shall survive any
termination, for any reason, of this Agreement.
26. Merger of Agreement.
This Agreement constitutes the entire agreement between the parties hereto
and supersedes any prior agreement with respect to the subject matter hereof
whether oral or written.
[Signature page follows]
8
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers, hereunto duly authorized, as of the day
and year first above written.
Computershare, Inc., and
Computershare Trust Company, N.A.
On Behalf of Both Entities
By: ______________________________________
Name:
Title:
Date:
Blue Valley Ban Corp.
By: ______________________________________
Name:
Title:
Date:
9
