Exhibit 99(K)(ii)
(Subscription Agent)
SUBSCRIPTION AGENT AGREEMENT
This Subscription Agent Agreement (the "Agreement") is made as of
__________________, 200_ between [INSERT NAME OF COMPANY] (the " Company")
and EquiServe Trust Company, N.A. as subscription agent (the "Agent"). All
terms not defined herein shall have the meaning given in the prospectus
(the "Prospectus") included in the Registration Statement on Form ____
(File No. _________) filed by the Company with the Securities and Exchange
Commission on ____________, 200_, as amended by any amendment filed with
respect thereto (the "Registration Statement").
WHEREAS, the Company proposes to make 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 $0.001 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 the
holders of record thereof (each of whom shall be deemed a "Shareholder"
hereunder for purposes of determining the rights of holders of Subscription
Certificates). Each Subscription Certificate shall, subject to the
provisions thereof, entitle the Shareholder in whose name it is recorded to
the following [only if non-transferable]:
(1) With respect to Record Date Shareholders only, the right to
acquire during the Subscription Period, as defined in the Prospectus, at
the Subscription Price, as defined in the Prospectus, a number of shares of
Common Stock equal to one share of Common Stock for every one Right (the
"Primary Subscription Right"); and
(2) With respect to Record Date Shareholders only, 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 in its capacity as Transfer Agent of 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 ____ 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 [or pursuant to other formula - Company should provide this
information], 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 of a duly authorized officer of the Subscription Agent.
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 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 money order
or check drawn on a bank in the United States, in each case payable to the
order of the Company or the Agent.
(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. New York 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
Shareholder Services Division of the Agent 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. New York 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 a New York Stock
Exchange member 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 by the Agent within three
Business Days (as defined below) after the Expiration Date (the "Protect
Period") and full payment for their Common Stock within ten Business Days
after the Confirmation Date (as defined in Section 4(d)). 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) The Company will determine the Subscription Price by taking
__% of the average of the last reported sale prices of shares of Common
Stock on the New York Stock Exchange on the ______ Business Day following
the Expiration Date (the "Pricing Date") and the _____ Business Day. As
soon as practicable after the Pricing Date (the "Confirm Date") the Agent
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 additional amount
payable to the Company by such shareholder or 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.
(e) Any additional payment required from a shareholder must be
received by the Agent within ten Business Days after the Confirmation Date
and any excess payment to be refunded by the Company to a shareholder will
be mailed by the Agent within ten Business Days after the Confirmation
Date. If a shareholder does not make timely payment of any additional
amounts due in accordance with Section 4(d), the Agent will consult with
the Company in accordance with Section 5 as to the appropriate action to be
taken. The Agent will not issue or deliver certificates 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 them and who wish to acquire more than the number of
shares for which the Rights issued to them are exercisable. Shares
subscribed for pursuant to the Over-Subscription Privilege will be
allocated in the amounts of such over-subscriptions. If the number of
shares for which the Over-Subscription Privilege has been exercised is
greater than the Remaining Shares, the Agent shall allocate the Remaining
Shares to Record Date Shareholders exercising Over-Subscription Privilege
based on the number of shares of Common Stock owned by them on the Record
Date. Any remaining shares to be issued shall be allocated to holders of
Rights acquired in the secondary market based on the number of Rights
exercised by such holders of Rights. The percentage of Remaining Shares
each over-subscribing Record Date Shareholder or other Rights holder may
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 Certificates. The Agent will deliver (i) certificates
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 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.
(a) All proceeds received by the Agent from Shareholders in
respect of the exercise of Rights shall be held by the Agent, on behalf of
the Company, in a segregated account (the "Account"). No interest shall
accrue to the Company or shareholders on funds held in the Account pending
disbursement in the manner described in Section 4(e) above.
(b) The Agent shall deliver all proceeds received in respect of
the exercise of Rights to the Company as promptly as practicable, but in no
event later than ten business days after the Confirmation Date.
9. Reports.
(a) Daily, during the period commencing on __________, until
termination of the Subscription Period, the Agent will report by telephone
or telecopier, 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 therefor, 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.
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 as such in accordance with its Fee Schedule
to act as Agent, dated ___________________ and 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 and Indemnification. The Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and
conditions:
(a) The Agent shall be entitled to rely upon any instructions or
directions furnished to it by an appropriate officer of the Company,
whether in conformity with the provisions of this Agreement or constituting
a modification hereof or a supplement hereto. Without limiting the
generality of the foregoing or any other provision of this Agreement, the
Agent, in connection with its duties hereunder, shall not be under any duty
or obligation to inquire into the validity or invalidity or authority or
lack thereof of any instruction or direction from an officer of the Company
which conforms to the applicable requirements of this Agreement and which
the Agent reasonably believes to be genuine and shall not be liable for any
delays, errors or loss of data occurring by reason of circumstances beyond
the Agent's control.
(b) The Company will indemnify the Agent and its nominees against,
and hold it harmless from, all liability and expense which may arise out of
or in connection with the services described in this Agreement or the
instructions or directions furnished to the Agent relating to this
Agreement by an appropriate officer of the Company, except for any
liability or expense which shall arise out of the gross negligence, bad
faith or willful misconduct of the Agent or such nominees.
13. Limitation of Liability. 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; provided, however, that
Agent's aggregate liability during any term of this Agreement with respect
to, arising from, or arising in connection with this Agreement, or from all
services provided or omitted to be provided under this Agreement, whether
in contract, or in tort, or otherwise, is limited to, and shall not exceed,
the amounts paid hereunder by the Company to Agent as fees and charges, but
not including reimbursable expenses, during the six (6) calendar months
immediately preceding the event for which recovery from the Agent is being
sought.
14. Post-Merger Cleanup.
A. The Company agrees that any post-merger active solicitation
program will be coordinated exclusively through the Exchange Agent, using a
vendor that the Exchange Agent has previously approved.
B. Post-merger active solicitation programs are typically
performed at no additional cost to the Company. If the Exchange Agent
determines that fees and/or expenses are appropriate based on the
particular program for the Company, such fees and/or expenses must be
mutually agreed upon in writing between the parties before implementation
of such program.
15. 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.
16. Assignment, Delegation.
(a) Except as provided in Section 14(c) 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) This Agreement shall inure to the benefit of and be binding
upon the parties and their respective permitted successors and assigns.
Nothing in this Agreement is intended or shall be construed to confer upon
any other person any right, remedy or claim or to impose upon any other
person any duty, liability or obligation.
(c) The Agent may, without further consent on the part of the
Company, (i) subcontract for the performance hereof with EquiServe Limited
Partnership or (ii) subcontract with other subcontractors for systems,
processing, telephone and mailing services, and post-merger clean up
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.
17. Governing Law. The validity, interpretation and performance of this
Agreement shall be governed by the law of the Commonwealth of
Massachusetts.
18. 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.
19. 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, 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. Term. This Agreement shall remain in effect until 30 days' written
notice has been provided by either party to the other. [If not transfer
agent for the Company add: Upon termination of this Agreement, all canceled
Certificates and related documentation will be returned to the Company or
agent designated by the Company.] [If transfer agent add: Upon termination
of the Agreement, the Exchange Agent shall retain all canceled Certificates
and related documentation as required by applicable law.]
26. 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, postage prepaid, addressed as
follows:
If to the Company, to:
If to the Exchange Agent, to:
EquiServe Trust Company, N.A.
c/o EquiServe Limited Partnership
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Reorganization Department
27. Survival. The provisions of Paragraphs 12, 17, 19 - 21, 24, 26 -28
shall survive any termination, for any reason, of this agreement.
28. Merger of Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supercedes any prior agreement with respect
to the subject matter hereof whether oral or written.
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.
EQUISERVE TRUST COMPANY, NA. COMPANY
_______________________________ _____________________________
Signature Signature
_______________________________ ______________________________
Title Title
_______________________________ ______________________________
Date Date
