EXHIBIT 4.1
MELLON
SUBSCRIPTION & INFORMATION AGENT AGREEMENT
THIS SUBSCRIPTION AGENT AGREEMENT (this "Agreement") between Xxxxx
Corporation, an Indiana corporation (the "Company") and Mellon Bank N.A., a
Pennsylvania company ("Mellon"), is dated as of _______________.
1. APPOINTMENT
(a) The Company is making an offer (the "Subscription Offer") to
issue 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 November
9, 2005 (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 of $7.25 per share of Additional Common Stock (the "Subscription Price"),
payable by cashier's or certified check, 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.
(b) The Subscription Offer will expire at _________, New York City
Time, on (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.
(c) The Company filed a Registration Statement relating to the
Additional Common Stock with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, on ___________. Said Registration Statement
was declared effective on ______________. The terms of the Additional Common
Stock are more fully described in the Prospectus forming part of the
Registration Statement as it was declared effective, 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 2, Exhibit 3 and
Exhibit 4, respectively. All terms used and not defined herein shall have the
same meaning as in the Prospectus. Promptly after the Record Date, the Company
will provide Mellon with a list of holders of Common Stock as of the Record Date
(the "Record Stockholders List").
(d) The Company hereby appoints Mellon to act as subscription agent
(the "Subscription Agent") and information agent (the "Information Agent") for
the Subscription Offer in accordance with and subject to the following terms and
conditions.
2. SUBSCRIPTION OF RIGHTS
(a) The Rights are evidenced by transferable subscription
certificates (the "Certificates"), a copy of the form of which is annexed hereto
as Exhibit 5. The Certificates 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 three Rights evidenced by a Certificate (the "Basic Subscription
Privilege"). No fractional shares will be issued, but the Subscription Offer
includes a step-up privilege entitling the holder of a Certificate or
combination of Certificates evidencing fewer than three Rights, or a total
number of Rights not evenly divisible by three, if said holder fully exercises
the Certificate or Certificates accompanying the Subscription Offer, to
subscribe and pay the Subscription Price for one full share of Additional Common
Stock in lieu of a fractional share without furnishing any additional Rights
(the "Step-up Privilege"). Reference is made to the Prospectus for a complete
description of the Basic Subscription Privilege and the Step-up Privilege.
(b) Further, the Subscription Offer provides that subscribing
shareholders, and only those subscribing shareholders who were shareholders on
the Record Date and who exercise their Rights in full, may exercise an
Over-subscription right as more fully described in the Registration Statement.
Mellon shall, after the initial allocation of Additional Common Stock to those
shareholders exercising their Basic Subscription Right, allocate any remaining
Basic Subscription, as more fully described in the Registration Statement.
3. DUTIES OF SUBSCRIPTION AGENT
As Subscription Agent, Mellon is authorized and directed to:
(a) Issue the Certificates 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 Certificates 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 Mellon receives the Record Stockholders List,
Mellon shall:
(i) 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
Certificate 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
(ii) 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). Mellon shall refrain
from mailing Certificates 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 Certificates 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 ________________.
(c) Mail or deliver a copy of the Prospectus (i) to each
assignee or transferee of Certificates upon receiving appropriate documents to
register the assignment or transfer thereof and (ii) with certificates for
shares of Additional Common Stock when such are issued to persons other than the
registered holder of the Certificate.
(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 Certificates and the Prospectus.
(e) Subject to the next sentence, accept Subscriptions from
stockholders whose Certificates are alleged to have been lost, stolen or
destroyed upon receipt by Mellon of an affidavit of theft, loss or destruction
and a bond of indemnity in form and substance satisfactory to Mellon,
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 Certificates and Mellon shall withhold delivery
of the shares of Additional Common Stock Subscribed for until after the
Certificates have expired and it has been determined that the Rights evidenced
by the Certificates 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:
(i) if the Certificate 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;
(ii) if the Certificate 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;
(iii) if the Certificate 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
(iv) if the Certificate 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 Certificates 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
Certificates, under the circumstances and in compliance with the terms and
conditions set forth in the Prospectus under the heading "Procedures for DTC
Participants".
(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 Certificates.
4. DUTIES AS INFORMATION AGENT
In its capacity as Information Agent, Mellon shall:
(a) assist in the coordination of all printing activities and
advertisement placement if required;
(b) establishing contacts with brokers, dealers, banks and other
nominees on the Company's behalf;
(c) determining the material requirements;
(d) assistance with document review;
(e) facilitate the distribution of materials to the registered
and beneficial owners and to other interested parties;
(f) providing a dedicated toll-free line for all shareholder
queries;
(g) provide status reporting to Company management; and
(h) facilitate payment of all broker-forwarding invoices,
subject to collection from the Company of monies for this purpose.
5. ACCEPTANCE OF SUBSCRIPTIONS
Upon acceptance of a Subscription, Mellon shall:
(a) Hold all monies received in a special account for the benefit of
the Company. Promptly following the Expiration Time Mellon shall distribute to
the Company the funds in such account and issue certificates for shares of
Additional Common Stock issuable with respect to Subscriptions that have been
accepted. Mellon 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 certified check, money order, or wire transfer
but not personal check, will be deposited with Mellon.
(b) Advise the Company daily by telecopy and confirm by letter to
the attention of Xxxxxx Xxxxx (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 Subscribed for, the number of Subscription guarantees received
and the number of shares of Additional Common Stock unsubscribed for.
6. COMPLETION OF SUBSCRIPTION OFFER
Upon completion of the Subscription Offer:
(a) Mellon shall requisition certificates from the Transfer Agent
for the Common Stock for shares of Additional Common Stock for which
Subscriptions have been received.
(b) The Certificates shall be issued in registered form only. The
Company shall appoint and have in office at all times a Transfer Agent and
Registrar for the Certificates, which shall keep books and records of the
registration and transfers and exchanges of Certificates (such books and records
are hereinafter called the "Certificate Register"). The Company shall promptly
notify the Transfer Agent and Registrar of the exercise of any Certificates. The
Company shall promptly notify Mellon of any change in the Transfer Agent and
Registrar of the Certificates.
(c) All Certificates issued upon any registration of transfer or
exchange of Certificates shall be the valid obligations of the Company,
evidencing the same obligations, and entitled to the same benefits under this
Agreement, as the Certificates surrendered for such registration of transfer or
exchange.
(d) Any Certificate when duly endorsed in blank shall be deemed
negotiable, and when a Certificate shall have been so endorsed the holder
thereof may be treated by the Company, Mellon 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 Certificate
Register, the Company and Mellon may treat the registered holder thereof as the
owner for all purposes.
(e) 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, Mellon will request the Transfer Agent
for the Common Stock to issue certificates evidencing the appropriate number of
shares of Additional Common Stock as required from time to time in order to
effectuate the Subscriptions.
(f) 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 Certificates 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.
(g) 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 Certificates or Additional Common Stock issued
upon exercise of Certificates.
7. PROCEDURE FOR DISCREPANCIES
Mellon shall follow its regular procedures to attempt to reconcile
any discrepancies between the number of shares of Additional Common Stock that
any Certificate 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 Mellon cannot reconcile such discrepancies by following
such procedures, Mellon will consult with the Company for instructions as to the
number of shares of Additional Common Stock, if any, it is authorized to issue.
In the absence of such instructions, Mellon is authorized not to issue any
shares of Additional Common Stock to such stockholder.
8. PROCEDURE FOR DEFICIENT ITEMS
Mellon shall examine the Certificates received by it as Subscription
Agent to ascertain whether they appear to have been completed and executed in
accordance with the applicable Letter of Instruction. In the event Mellon
determines that any Certificate does not appear to have been properly completed
or executed, or where the Certificates do not appear to be in proper form for
Subscription, or any other irregularity in connection with the Subscription
appears to exist, Mellon shall follow, where possible, its regular procedures to
attempt to cause such irregularity to be corrected. Mellon is not authorized to
waive any irregularity in connection with the Subscription, unless Mellon shall
have received from the Company the Certificate which was delivered, duly dated
and signed by an authorized officer of the Company, indicating that any
irregularity in such Certificate has been cured or waived and that such
Certificate has been accepted by the Company. If any such irregularity is
neither corrected nor waived, Mellon will return to the subscribing stockholder
(at its option by either first class mail under a blanket surety bond or
insurance protecting Mellon and the Company from losses or liabilities arising
out of the non-receipt or nondelivery of Certificates or by registered mail
insured separately for the value of such Certificates) to such stockholder's
address as set forth in the Subscription any Certificates surrendered in
connection therewith and any other documents received with such Certificates,
and a letter of notice to be furnished by the Company explaining the reasons for
the return of the Certificates and other documents.
9. DATE/TIME STAMP
Each document received by Mellon relating to its duties hereunder
shall be dated and time stamped when received.
10. TRANSFER PROCEDURES
If certificates representing shares of Additional Common Stock are
to be delivered by Mellon to a person other than the person in whose name a
surrendered Certificate is registered, Mellon shall issue no certificate for
Additional Common Stock until the Certificate so surrendered has been properly
endorsed (or otherwise put in proper form for transfer).
11. TAX REPORTING
Should any issue arise regarding federal income tax reporting or
withholding, Mellon shall take such action as the Company reasonably instructs
in writing.
12. TERMINATION
The Company may terminate this Agreement at any time by so notifying
Mellon in writing. Mellon may terminate this Agreement upon 30 days' prior
notice to the Company. Upon any such termination, Mellon shall be relieved and
discharged of any further responsibilities with respect to its duties hereunder.
Upon payment of all Mellon's outstanding fees and expenses, Mellon shall forward
to the Company or its designee promptly any Certificate or other document
relating to Mellon's duties hereunder that Mellon may receive after its
appointment has so terminated. Sections 13, 14, 15 and 20 of this Agreement
shall survive any termination of this Agreement.
13. AUTHORIZATIONS AND PROTECTIONS
As agent for the Company hereunder Mellon:
(a) shall have no duties or obligations other than those
specifically set forth herein or as may subsequently be agreed to in writing by
Mellon 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;
(c) shall be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value, or genuineness of any
Certificates surrendered to Mellon 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, Mellon determines to take any legal action hereunder, and where the
taking of such action might, in Mellon's judgment, subject or expose it to any
expense or liability Mellon 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 Mellon 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 of
officers of the Company with respect to any matter relating to Mellon acting as
Subscription Agent covered by this Agreement (or supplementing or qualifying any
such actions);
(i) may consult with counsel satisfactory to Mellon, 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 Mellon hereunder in good faith and in reliance upon the advice of
such counsel;
(j) may perform any of its duties hereunder either directly or by or
through agents or attorneys and Mellon shall not be liable or responsible for
any misconduct or negligence on the part of any agent or attorney appointed with
reasonable care by Mellon hereunder; and
(k) Are not authorized, and shall have no obligation, to pay any
brokers, dealers, or soliciting fees to any person.
14. INDEMNIFICATION
The Company agrees to indemnify Mellon for, and hold it harmless
from and against, any loss, liability, claim or expense ("Loss") arising out of
or in connection with Mellon's performance of its duties under this Agreement or
this appointment, including the costs and expenses of defending itself against
any Loss or enforcing this Agreement, except to the extent that such Loss shall
have been determined by a court of competent jurisdiction to be a result of
Mellon's gross negligence or intentional misconduct.
15. LIMITATION OF LIABILITY
(a) In the absence of gross negligence or intentional misconduct on
its part, Mellon 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 Mellon be liable for special, indirect,
incidental or consequential loss or damage of any kind whatsoever (including but
not limited to lost profits), even if Mellon has been advised of the likelihood
of such damages and regardless of the form of action. Any liability of Mellon
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 Mellon's duties hereunder or the
rights of the Company or of any holders surrendering certificates for Shares
pursuant to the Subscription Offer, Mellon 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 Mellon 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 Mellon and executed by
the Company and each such stockholder and party. In addition, Mellon 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.
16. REPRESENTATIONS, WARRANTIES AND COVENANTS
The Company represents, warrants and covenants 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 either
is a party or is bound, (c) this Agreement has been duly executed and delivered
by the Company and constitutes a legal, valid, binding obligation of the
Company, enforceable against the Company in accordance with its terms, (d) the
Subscription Offer will comply in all material respects with all applicable
requirements of law and (e) to the best of their knowledge, there is no
litigation pending or threatened as of the date hereof in connection with the
Subscription Offer.
17. 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:
Xxxxx Corporation Xxxx X. Xxxxx, Esq.
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx &
Xxxxxxxxx, Xxxxxxxxxxx 00000 Wolosky LLP
Attn: Xxxxxx Xxxxx Park Avenue Tower
Tel: (000) 000-0000 00 Xxxx 00xx Xxxxxx
Fax: (000) 000-0000 Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
If to Mellon: with an additional copy to:
Mellon Bank, X.X. Xxxxxx Bank, N.A.
X/X Xxxxxx Xxxxxxxx Xxxxxxxx X/X Xxxxxx Xxxxxxxx Services
000 Xxxxxxxxxx Xxxx. 000 Xxxxxxxxxx Xxxx.
Xxxxxx Xxxx, XX 00000 Xxxxxx Xxxx, XX 00000
Attn: Xxxx Xxxxx Attn: Legal Department
Tel: Tel:
Fax: Fax:
18. SPECIMEN SIGNATURES
Set forth in Exhibit 6 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
Mellon the names and signatures of any other persons authorized to act for the
Company, as the case may be, under this Agreement.
19. INSTRUCTIONS
Any instructions given to Mellon orally, as permitted by any
provision of this Agreement, shall be confirmed in writing by the Company as
soon as practicable. Mellon 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.
20. FEES
Whether or not any Certificates are surrendered to Mellon, for its
services as Subscription Agent and Information Agent hereunder, the Company
shall pay to Mellon compensation in accordance with the fee schedule attached as
Exhibit 1 hereto, together with reimbursement for out-of-pocket expenses,
including reasonable fees and disbursements of counsel. All amounts owed to
Mellon hereunder are due upon receipt of the invoice. Delinquent payments are
subject to a late payment charge of one and one half percent (1.5%) per month
commencing forty-five (45) days from the invoice date.
21. TERMINATION
Either party may terminate this Agreement upon thirty (30) days
prior written notice to the other party. Unless so terminated, this Agreement
shall continue in effect until all Additional Shares of Common Stock 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 Mellon 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 Mellon as
Subscription Agent hereunder. Upon any such termination, Mellon shall be
relieved and discharged of any further responsibilities with respect to its
duties hereunder. Upon payment of all outstanding fees and expenses hereunder,
Mellon shall promptly forward to the Company or its designee any certificates
for Shares, Certificates, Election Forms, or any other document that Mellon may
receive after its appointment has so terminated.
22. FORCE MAJEURE
Mellon 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.
23. 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) 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 this Agreement, or,
if to the Subscription Agent, to Mellon Bank, N.A. c/o Mellon Investor Services,
000 Xxxxxxxxxx Xxxx., Xxxxxx Xxxx, Xxx Xxxxxx 00000, Attention: Reorganization
Department, or to such other address as a party hereto shall notify the other
parties.
(d) 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 Mellon's duties, liabilities and rights, including without
limitation compensation and indemnification, which shall be controlled by the
terms of this Agreement.
(e) 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.
(f) This Agreement shall be binding upon, inure to the benefit of,
and be enforceable by, the respective successors and assigns of the parties
hereto.
(g) This Agreement may not be assigned by any party without the
prior written consent of all parties.
(h) Sections 13, 14, 15, and 20 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.
XXXXX CORPORATION
By:
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Name: Xxxx X. Xxxxxxx
Title: President and Chief Executive Officer
Accepted as of the date above first written:
MELLON BANK, N.A.
AS SUBSCRIPTION & INFORMATION AGENT
By:
----------------------------------------
Name:
Title:
Exhibit 1 Fee Schedule
Exhibit 2 Prospectus
Exhibit 3 Letter of Instruction
Exhibit 4 Notice of Guaranteed Delivery
Exhibit 5 Form of Certificate
Exhibit 6 List of Authorized Representatives
Exhibit 1
SCHEDULE OF FEES
AS SUBSCRIPTION AGENT
SET-UP & ADMINISTRATIVE FEE $10,000.00
PROCESS BASIC SUBSCRIPTIONS, EACH $15.00
ISSUING SUBSCRIPTION CERTIFICATES TO RECORD DATE HOLDERS, EACH $5.00
PROCESSING OVERSUBSCRIPTIONS, INCLUDING PRO-RATIONS & REFUNDS, EACH $10.00
ADDITIONAL HANDLING ITEMS, EACH $25.00
Including Notice of Guaranteed Deliveries, Withdrawals, Legal Items,
Correspondence, Partials, Defective Items, Lost Items, Window Items, Items not
providing a Taxpayer Identification Number, Over-Subscriptions, Backup
Withholding, Multiple Checks (per check), Foreign Holders, etc.
ISSUING AND COLLECTING DUE BILLS, EACH $25.00
AFFIXING RESTRICTIVE LEGENDS ON CERTIFICATES, EACH $50.00
MIDNIGHT EXPIRATIONS, EACH (ONLY IF APPLICABLE) $5,000.00, each
Includes System Time, Security, Window Facility,
Post Office Pick Up, etc.
EXTENSION OF OFFER, EACH (ONLY IF APPLICABLE) $5,000.00, each
OFFICE OF FOREIGN ASSET CONTROL (OFAC) REPORTING, EACH HOLDER $1.00 per year
SPECIAL SERVICES, ONLY IF APPLICABLE:
* Additional Changes to the Shareholder File $50.00/account
(including transfer journal updates)
* Sale/Transfer of Rights Through Mellon $25.00/account
* Internal Attorney Review of the Agreement (if $1,000.00
there are any variations of the standard language)
* Conversion Delays/Mail Date Changes $500.00 each
* Programming Fees $250.00/hour
* Consultative Services $200.00/hour
* Archive Storage, per month $50.00
* Changes to Standard Documents By Appraisal
* Additional Special Services By Appraisal
OUT OF POCKET EXPENSES Additional
Including Postage, Printing, Stationery,
Overtime, Transportation, etc.
MINIMUM FEE, EXCLUSIVE OF SPECIAL SERVICES $30,000.00
If the aggregate amount of fees to be charged as described
above, exclusive of Special Services, Midnight Expirations,
Extensions of Offer, and Out of Pocket Expenses, is less than
$30,000.00, a total fee of $30,000.00 will apply.
SCHEDULE OF FEES
AS INFORMATION AGENT
INFORMATION AGENT FEE $7,500.00
FACILITY FEE $350.00 Per Week
EXTENSION FEE $1,000.00 per Extension
OUTGOING & INBOUND CALLS $39.50 per CSR hour
INBOUND CALLS TO IVR $1.95 per Call
PRINTING & LOGISTICS By Appraisal
(Any estimate is based on the current information)
MEDIA, DRAFTING & PROGRAMMING SERVICES $250.00 per hour
SPECIAL SERVICES, IF APPLICABLE
* Wall Street Journal National Edition By Appraisal
Advertisement
* New York Times Advertisement By Appraisal
* Additional Special Services By Appraisal
MELLON BANK, N.A.
SCHEDULE OF FEES
EXECUTIVE WHITE GLOVE SERVICE *(OPTIONAL)
Servicing Fee $1,000.00 per executive
Out of-pocket expenses Additional
MELLON'S EXECUTIVE WHITE GLOVE SERVICE ALLOWS CLIENTS TO PROVIDE SELECT
EXECUTIVES OR KEY SHAREHOLDERS WITH A PREMIUM LEVEL OF SERVICE. THIS SERVICE
INCLUDES DELIVERY OF CERTIFICATES AND ELECTION/TRANSMITTAL FORMS TO THE
ADMINISTRATOR OR PROJECT MANAGER; A PERSONAL CONTACT FOR SERVICE INQUIRIES;
RECEIPT OF FUNDS BY WIRE; AND CERTIFICATES RUSHED TO THE SHAREHOLDER BY
OVERNIGHT COURIER. IF THIS SERVICE IS NOT SELECTED, OUR PRICING CONTEMPLATES
THAT ALL SHAREHOLDERS WILL RETURN THEIR ITEMS IN ACCORDANCE WITH THE STANDARD
PROCEDURE OUTLINED IN THE SHAREHOLDER MATERIALS AND ALL INQUIRIES WILL BE MADE
TO THE PUBLISHED TOLL FREE TELEPHONE LINE. ADDITIONALLY, WITHOUT THIS SERVICE,
ALL SHAREHOLDERS WILL RECEIVE FUNDS BY CHECK AND CERTIFICATES WILL BE MAILED AND
ALL PROCESSING WILL BE IN ACCORDANCE WITH OUR NORMAL TIMEFRAMES AND PROCEDURES.
Exhibit 2
[PROSPECTUS]
Exhibit 3
[INSTRUCTIONS FOR USE OF SUBSCRIPTION CERTIFICATES]
Exhibit 4
[NOTICE OF GUARANTEED DELIVERY]
Exhibit 5
[SUBSCRIPTION CERTIFICATE]
Exhibit 6
NAME SPECIMEN SIGNATURE
Xxxx X. Xxxxxxx
/S/XXXX X. XXXXXXX
-------------------------------
Xxxxxx Xxxxx
/S/XXXXXX XXXXX
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