EXHIBIT 99(h)
SUBSCRIPTION AGENT AGREEMENT
_______________, 200_
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with your appointment as Subscription Agent in the transaction
described herein, The Alpine Group, Inc. (the "Company"), hereby confirms its
arrangements with you as follows:
1. RIGHTS OFFERING - The Company is offering (the "Rights Offering") to the
holders of shares of its Common Stock, par value $0.10 per share ("Common
Stock"), on ____________, 200_ (the "Record Date"), the right ("Rights") to
subscribe for Units ("Units"), each Unit consisting of one share of Series
A Cumulative Convertible Preferred Stock, par value $1.00 per share. Rights
shall cease to be exercisable at 5:00 p.m., New York City time, on
_______________, 200_ or such later date of which the Company notifies you
orally and confirms in writing (the "Expiration Date"). One Right is being
issued for each 500 shares of Common Stock held on the Record Date. One
Right and payment in full of the subscription price of $380.00 (the
"Subscription Price") are required to subscribe for one Unit. Rights are
evidenced by non-transferable subscription certificates ("Subscription
Certificates"). The Rights Offering will be conducted in the manner and
upon the terms set forth in the Company's Prospectus dated _______________,
200_ (the "Prospectus"), which is incorporated herein by reference and made
a part hereof as if set forth in full herein.
2. APPOINTMENT OF SUBSCRIPTION AGENT - You are hereby appointed as
Subscription Agent to effect the Rights Offering in accordance with the
Prospectus. Each reference to you in this letter is to you in your capacity
as Subscription Agent unless the context indicates otherwise.
3. DELIVERY OF DOCUMENTS - Enclosed herewith are the following, the receipt of
which you acknowledge by your execution hereof:
(a) a copy of the Prospectus;
(b) the form of Subscription Certificate (with instructions);
(c) resolutions adopted by the Board of Directors of the Company in
connection with the Rights Offering;
(d) Notice of Guaranteed Delivery; and
(e) Such other documents provided to you by the Company as may be necessary
or appropriate in connection with the Rights Offering.
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As soon as is reasonably practical, you shall mail or cause to be mailed to
each holder of Common Stock at the close of business on the Record Date a
Subscription Certificate evidencing the Rights to which such holder is
entitled, a Notice of Guaranteed Delivery, a Prospectus, such other
documents provided to you by the Company and an envelope addressed to you.
Prior to mailing, the Company will provide you with blank Subscription
Certificates which you will prepare and issue in the names of holders of
Common Stock of record at the close of business on the Record Date and for
the number of Rights to which they are entitled, provided that no
fractional Rights shall be issued. The Company will also provide you with
a sufficient number of copies of each of the documents to be mailed with
the Subscription Certificates.
4. SUBSCRIPTION PROCEDURE -
(a) Upon your receipt prior to 5:00 p.m., New York City time, on the
Expiration Date (by mail or delivery), as Subscription Agent, of (ii) any
Subscription Certificate completed and endorsed for exercise, as provided
on the reverse side of the Subscription Certificate, and (ii) payment in
full of the Subscription Price in U.S. funds by check, bank draft or money
ORDER payable at par (without deduction for bank service charges or
otherwise) to the order of American Stock Transfer & Trust Company, you
shall as soon as practicable after the Expiration Date mail to the
subscriber's registered address on the books of the Company certificates
representing the securities underlying each Unit duly subscribed for and
furnish a list of all such information to the Company.
(b) Funds received by you shall be held by you in a segregated account.
Upon mailing certificates representing the securities, you shall promptly
remit to the Company all funds received in payment of the Subscription
Price for Units sold in the Rights Offering.
5. NON-TRANSFERABILITY OF RIGHTS - Rights are non-transferable and there shall
be no subdivision or transfers of Subscription Certificates.
6. DEFECTIVE EXERCISE OF RIGHTS; LOST SUBSCRIPTION CERTIFICATES - 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,
you shall not be under any duty to give notification to holders of
Subscription Certificates of any defects or irregularities in
subscriptions. Subscriptions will not be deemed to have been made until any
such defects or irregularities have been cured or waived within such time
as the Company shall determine. You shall as soon as practicable return
Subscription Certificates with the defects or irregularities which have not
been cured or waived to the holder of the Rights. If any Subscription
Certificate is alleged to have been lost, stolen or destroyed, you should
follow the same procedures followed for lost stock certificates
representing Common Stock you use in your capacity as transfer agent for
the Company's Common Stock.
7. GUARANTEED DELIVERY - If prior to 5:00 p.m., New York City time, on the
Expiration Date you receive (i) payment in full of the Subscription Price
for the Units being subscribed for and (ii) a guarantee notice
substantially in the form of the Notice of Guaranteed Delivery delivered
with the Subscription Certificate, from a financial institution having an
office or correspondent in the United States, or a member firm of any
registered United States national securities exchange or of the National
Association of Securities Dealers, Inc. stating the certificate number of
the Subscription Certificate relating to the Rights, the name and address
of the exercising subscriber, the number of Rights represented by the
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Subscription Certificate held by such exercising subscriber, the number of
Units being subscribed for pursuant to the Rights and guaranteeing the
delivery to you of the Subscription Certificate evidencing such Rights
within three NASDAQ National Market ("NNM") trading days following the
Expiration Date, then the Rights may be exercised even though the
Subscription Certificate was not delivered to you prior to 5:00 p.m., New
York City time, on the Expiration Date, provided that within three NNM
trading days following the Expiration Date you receive the properly
completed Subscription Certificate evidencing the Rights being exercised,
with signatures guaranteed if required.
8. DELIVERY - You shall deliver to the Company the exercised Subscription
Certificates in accordance with written directions received from the
Company and shall deliver to the subscribers who have duly exercised Rights
at their registered addresses certificates representing the securities
subscribed for as instructed on the reverse side of the Subscription
Certificates.
9. REPORTS - You shall notify the Company by telephone on or before the close
of business on each business day during the period commencing 5 business
days after the mailing of the Rights and ending at the Expiration Date (and
in the case of guaranteed deliveries ending three NNM trading days after
the Expiration Date) (a "daily notice"), which notice shall thereafter be
confirmed in writing, of (i) the number of Rights exercised on the day
covered by such daily notice, (ii) the number of Rights subject to
guaranteed exercises on the day covered by such daily notice, (iii) the
number of Rights for which defective exercises have been received on the
day covered by such daily notice, and (iv) the cumulative total of the
information set forth in clauses (i) through (iii) above. At or before 5:00
p.m., New York City time, on the first NNM trading day following the
Expiration Date you shall certify in writing to the Company the cumulative
total through the Expiration Date of all the information set forth in
clauses (i) through (iii) above. At or before 10:00 a.m., New York City
time, on the fifth NNM trading day following the Expiration Date you will
execute and deliver to the Company a certificate setting forth the number
of Rights exercised pursuant to a Notice of Guaranteed Delivery and as to
which Subscription Certificates have been timely received. You shall also
maintain and update a listing of holders who have fully or partially
exercised their Rights and holders who have not exercised their Rights. You
shall provide the Company or its designees with such information compiled
by you pursuant to this paragraph 9 as any of them shall request.
10. FUTURE INSTRUCTIONS - With respect to notices or instructions to be
provided by the Company hereunder, you may rely and act on any written
instruction signed by any one or more of the following authorized officers
or employees of the Company: X. Xxxxxxxx Posner or Xxxxxxx X. Xxxxxxxxx.
11. PAYMENT OF EXPENSES - The Company will pay you compensation for acting in
your capacity as Subscription Agent hereunder in the amount of $7,500 plus
your reasonable out-of-pocket expenses.
12. COUNSEL - You may consult with counsel satisfactory to you, which may be
counsel to the Company, and the advice or opinion of such counsel shall be
full and complete authorization and protection in respect of any action
taken, suffered OR omitted by you hereunder in good faith and in accordance
with such advice an opinion of such counsel.
13. INDEMNIFICATION - The Company covenants and agrees to indemnify and hold
you
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harmless against any costs, reasonable expenses (including reasonable fees
of legal counsel), losses or damages, which are paid, incurred or suffered
by you or to which you become subject arising from or out of, directly or
indirectly, any claim or liability resulting from your actions as
Subscription Agent pursuant hereto; provided that such covenant and
agreement does not extend to such costs, expenses, losses and damages paid,
incurred or suffered by you as a result of, or arising from or out of, your
own negligence, misconduct or bad faith or that of any employees, agents or
independent contractors used by you in connection with the performance of
your duties as Subscription Agent hereunder.
14. NOTICES - Unless otherwise provided herein, all reports, notices and other
communications required or permitted to be given hereunder shall be in
writing and delivered by hand or confirmed telecopy or by first class U.S.
mail, postage prepaid, shall be deemed given if by hand or telecopy, upon
receipt or if by U.S. mail, three business days after deposit in the U.S.
mail and shall be addressed as follows
(a) If to the Company, to:
The Alpine Group, Inc.
Xxx Xxxxxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(b) If to you, to:
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
15. RIGHTS OFFERING CONTROLLING - In the event that any claim of inconsistency
between this Agreement and the terms of the Rights Offering arises, as they
may from time to time be amended, the terms of the Rights Offering shall
control, except with respect to the compensation and indemnification of you
as Subscription Agent, which shall be controlled by the terms of this
Agreement.
16 SEVERABILITY - 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 between us to the full extent permitted by
applicable law.
17. GOVERNING LAW; BINDING EFFECT - This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without
giving effect to principles of conflicts of law, and shall inure to the
benefit of and be binding upon the successors and permitted assigns of the
parties hereto; provided that this Agreement may not be
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assigned by any party without the prior written consent of the other party.
18 AMENDMENT; COUNTERPARTS - No provision of this Agreement may be amended,
modified or waived, except in writing signed by all of the parties hereto.
This Agreement may be executed in counterparts, each of which shall be for
all purposes deemed an original, but all of which together shall constitute
one and the same instrument.
Please acknowledge receipt of this Agreement and the documents referred to
in paragraph 3 hereof and confirm the arrangements herein provided by signing
and returning the enclosed copy hereof, whereupon this Agreement and the terms
and conditions herein provided shall constitute a binding agreement between us.
Very truly yours,
The Alpine Group, Inc.
By:------------------------
Name:
Title:
Accepted and Agreed:
AMERICAN STOCK TRANSFER &
TRUST COMPANY
As Subscription Agent
By:-------------------------
Name:
Title:
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