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EXHIBIT 99.1
FORM OF SUBSCRIPTION AGENT AGREEMENT
This Subscription Agent Agreement (the "Agreement") is made as of the ___
day of __________, 2001, by and between Xxxxxxx International, Ltd., a Delaware
corporation (the "Company"), and American Stock Transfer & Trust Company, as
subscription agent (the "Agent").
RECITALS
WHEREAS, the Company has caused a prospectus (the "Prospectus") included
in the Registration Statement on Form S-3, File No. 333-_______, to be filed
with the Securities and Exchange Commission (the "Commission") on July ___,
2001, as amended by any amendment filed with respect thereto (collectively the
"Registration Statement"), which relates to a proposed distribution by the
Company of non-transferable subscription rights (the "Subscription Rights") to
purchase shares of the Company's common stock, par value $0.001 per share
("Common Stock"), upon the exercise of such Subscription Rights (the
distribution of the Subscription Rights and the sale of shares of Common Stock
upon the exercise thereof as contemplated by the Registration Statement is
referred to herein as the "Rights Offering");
WHEREAS, the Subscription Rights will be distributed on or about August
___, 2001 to holders of record of shares of Common Stock (the "Holders") as of
the close of business on August ___, 2001 (the "Record Date") at a rate of 3.728
Subscription Rights for each share of Common Stock held on the Record Date;
WHEREAS, the Company has authorized the issuance of an aggregate number of
authorized and unissued shares of Common Stock (the "Underlying Shares") equal
to the aggregate number of Subscription Rights to be distributed pursuant to the
Rights Offering;
WHEREAS, Holders will be entitled to subscribe to purchase at a per share
price of $0.50 (the "Subscription Price") one Underlying Share for each
Subscription Right held (the "Basic Subscription Privilege"), which right to
subscribe for such Underlying Shares pursuant to the Basic Subscription
Privilege is not transferable;
WHEREAS, Holders will also be entitled to subscribe to purchase any
Underlying Shares that are not subscribed for through the Basic Subscription
Privilege, subject to proration by the Company, if necessary (the
"Over-Subscription Privilege"), which right to subscribe for such Underlying
Shares pursuant to the Over-Subscription Privilege is not transferable; and
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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 Rights
Offering as set forth herein, 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:
ARTICLE 1
APPOINTMENT OF AGENT
Section 1.1. Appointment of Agent. The Company hereby appoints the Agent
to act as agent for the Company in accordance with the instructions set forth in
this Agreement, and the Agent hereby accepts such appointment.
ARTICLE 2
ISSUANCE OF SECURITIES
Section 2.1. Authorization; Issuance. The Company has authorized the
issuance of the Subscription Rights and, following the Record Date and the
effectiveness of the Registration Statement, will issue such Subscription Rights
to the Holders as contemplated by the Registration Statement. The Company will
notify the Agent upon the effectiveness of the Registration Statement. As
transfer agent and registrar for the shares of Common Stock, the Agent shall
provide such assistance as the Company may require in order to effect the
distribution of the Subscription Rights to Holders, including assistance in
determining the number of Subscription Rights to be distributed to each such
Holder and assistance in distributing the Subscription Documents (as defined in
Section 5.2 hereof) evidencing the Subscription Rights and all other ancillary
documents and issuance of the Underlying Shares.
Section 2.2. Reservation. The Company has authorized the issuance of and
will hold in reserve the Underlying Shares, and upon the valid exercise of
Subscription Rights, the Company will issue Underlying Shares to validly
exercising Holders as set forth in the Registration Statement.
ARTICLE 3
SUBSCRIPTION RIGHTS AND ISSUANCE OF
SUBSCRIPTION DOCUMENTS
Section 3.1. Subscription Rights and Issuance of Subscription Documents.
Each set of Subscription Documents shall contain a Subscription Certificate
which shall be non-transferable. The Agent shall, in its capacity as transfer
agent and registrar of the Company, maintain a register of Subscription
Certificates and the Holders thereof. Each Subscription Certificate shall,
subject to the provisions thereof, entitle the Holder in whose name it is
recorded to the following: (a) With respect to Holders only, the right to
subscribe for prior to 5:00 P.M., New York City time, on September ___, 2001, as
such date may be extended with respect to certain shareholders (the "Expiration
Date"), at the Subscription Price a number of shares equal to 3.728 Underlying
Shares for every share of Common Stock held by each Holder on the Record Date
(the "Basic Subscription Privilege"); and (b) With respect to
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Holders only, the right to subscribe for additional shares of Common Stock,
subject to the availability of such shares and to the allocation of such shares
as may be available among Holders who exercise their Over-subscription Privilege
on the basis specified in the Prospectus.
ARTICLE 4
FRACTIONAL SUBSCRIPTION RIGHTS AND SHARES
Section 4.1. Fractional Subscription Rights and Shares. The Company shall
not issue fractions of Subscription Rights nor shall the Agent distribute
Subscription Certificates which evidence fractional Subscription Rights. The
number of Subscription Rights issued to each Holder will be rounded up to the
nearest whole number. All questions as to the validity and eligibility of any
rounding of fractional Subscription Rights shall be determined by the Company in
its sole discretion, and its determination shall be final and binding. The
Company shall not issue fractional shares of Common Stock to exercising Holders
upon exercise of Subscription Rights.
ARTICLE 5
FORM AND EXECUTION OF SUBSCRIPTION DOCUMENTS
Section 5.1. Subscription Certificates. Each Subscription Certificate
shall evidence the Subscription Rights of the Holder therein named to purchase
Common Stock upon the terms and conditions set forth in the Subscription
Documents.
Section 5.2. Form; Execution. 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's stockholders 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 Holders, setting forth
the number of Subscription Rights to subscribe for the Company's Common Stock
calculated on the basis of 3.728 Subscription Rights for each share of Common
Stock recorded on the books in the name of each such Holder. 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 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 Certificate, together with a copy of the Prospectus, instruction
letter and any other document as the Company deems necessary or appropriate
(collectively the "Subscription Documents"), to all Holders with record
addresses in the United States (including its territories and possessions and
the District of Columbia). No Subscription Documents shall be valid for any
purpose unless so executed. Delivery shall be by first class mail (without
registration or insurance).
Section 5.3. Foreign Addresses. Subscription Documents will not be mailed
to Holders having a registered address outside the United States, or to those
Holders having APO or FPO addresses. The Subscription Rights to which such
Subscription Certificates relate will be held by the Agent for such Holders,
accounts until instructions are received to exercise the Subscription Rights.
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ARTICLE 6
EXERCISE OF SUBSCRIPTION RIGHTS; EXERCISE PRICE;
EXPIRATION DATE
Section 6.1. Exercise of Subscription Rights. Each Holder may exercise
some or all of the Subscription Rights evidenced by the Subscription Certificate
(but not in amounts of less than one Subscription Right or an integral multiple
thereof) by delivering to the Agent, on or prior to the Expiration Date,
properly completed and executed Subscription Documents evidencing such
Subscription Rights (with signatures guaranteed, if required by Section 6.9
hereof, by a financial institution (including commercial banks, savings and loan
associations and brokerage houses) that is a member of a recognized signature
guarantee or medallion program within the meaning of Rule 17Ad-15 under the
Securities Exchange Act of 1934, as amended (each, an "Eligible Institution")),
together with payment of the Subscription Price for each Underlying Share
subscribed for pursuant to the Basic Subscription Privilege and the
Over-Subscription Privilege, as the case may be. In the case or persons
acquiring shares at an aggregate Subscription Price of $1,000,000 or more, an
alternative payment method may be arranged with the Agent and approved by the
Company.
Section 6.2. Depositary Trust Company. In the case of Holders of
Subscription Rights that are held of record through The Depository Trust Company
("DTC"), exercises of the Basic Subscription Privilege may be effected by
instructing DTC to transfer Subscription Rights from the DTC account of such
Holder to the DTC account of the Agent, together with payment of the
Subscription Price for each Underlying Share subscribed for pursuant to the
Basic Subscription Privilege and the Over-Subscription Privilege. Alternatively,
a Holder may exercise the Subscription Rights evidenced by the Subscription
Certificate by effecting compliance with the procedures for guaranteed delivery
set forth in Section 6.3 below.
Section 6.3. Guaranteed Delivery Procedures. If a Holder wishes to
exercise Subscription Rights, but time will not permit such Holder to cause the
Subscription Certificate evidencing such Subscription Rights to reach the Agent
on or prior to the Expiration Date, such Subscription Rights may nevertheless be
exercised if all of the following conditions (the "Guaranteed Delivery
Procedures") are met: (a) such Holder has caused payment in full of the
Subscription Price for each Underlying Share being subscribed for pursuant to
the Basic Subscription Privilege and the Over-Subscription Privilege to be
received (in the manner set forth in Section 6.5 hereof) by the Agent on or
prior to the Expiration Date; (b) the Agent receives, on or prior to the
Expiration Date, a guarantee notice (a "Notice of Guaranteed Delivery"),
substantially in the form provided with the Subscription Documents, from an
Eligible Institution, stating the name of the exercising Holder, the number of
Subscription Rights represented by the Subscription Certificate or Subscription
Certificates held by such exercising Holder, the number of Underlying Shares
being subscribed for pursuant to the Basic Subscription Privilege and the number
of Underlying Shares, if any, being subscribed for pursuant to the
Over-Subscription Privilege, and guaranteeing the delivery to the Agent of the
Subscription Certificate evidencing such Subscription Rights at or prior to 5:00
p.m., New York City time, on the date three over-the-counter ("OTC") trading
days following the date of the Notice of Guaranteed Delivery; and (c) the
properly completed Subscription Certificate(s) evidencing the Subscription
Rights being exercised, with any required signatures guaranteed,
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are received by the Agent, or such Subscription Rights are transferred into the
DTC account of the Agent, at or prior to 5:00 p.m., New York City time, on the
date three OTC trading days following the date of the Notice of Guaranteed
Delivery relating thereto. The Notice of Guaranteed Delivery may be delivered to
the Agent in the same manner as Subscription Certificates at the addresses set
forth above, or may be transmitted to the Agent by telegram or facsimile
transmission (facsimile: (000) 000-0000).
Section 6.4. Expiration of Rights. The Subscription Rights shall expire at
5:00 p.m., New York City time, on the Expiration Date.
Section 6.5. Deemed Exercises; Subscription Excess. If an exercising
Holder has not indicated the number of Subscription Rights being exercised, or
if the Subscription Price payment forwarded by such Holder to the Agent is not
sufficient to purchase the number of shares subscribed for, the Holder will be
deemed to have exercised the Basic Subscription Privilege with respect to the
maximum number of whole Subscription Rights which may be exercised for the
Subscription Price delivered to the Agent and, to the extent that the
Subscription Price payment delivered by such Holder exceeds the Subscription
Price multiplied by the maximum number of whole Subscription Rights which may be
exercised (such excess being the "Subscription Excess"), the Holder will have
been deemed to exercise its Over-Subscription Privilege to purchase, to the
extent available, that number of whole shares of Common Stock equal to the
quotient obtained by dividing the Subscription Excess by the Subscription Price,
up to the maximum number of shares purchasable by such Holder. The Agent, as
soon as practicable after the exercise of the Subscription Rights, shall mail to
such Holders any portion of the Subscription Excess not applied to the purchase
of Common Stock pursuant to the Over-Subscription Privilege, without interest or
deduction.
Section 6.6 Bank Account. The Agent shall hold all proceeds of the Rights
Offering in a segregated bank account (the "Bank Account"). Upon receipt by the
Agent of a written notice from the Company and following issuance of the
Underlying Shares, the Agent shall and is hereby directed to withdraw from the
Bank Account in which the proceeds of the Rights Offering have been held and pay
to, credit to the account of or otherwise transfer to the Company all such
Funds. At the request of the Company, any portion of the Underlying Shares shall
be issued and the corresponding proceeds shall be remitted to the Company.
Section 6.7 Acceptance of Certificates. The Agent is authorized to accept
only Subscription Certificates (other than Subscription Certificates delivered
in accordance with the procedure for guaranteed delivery set forth in Section
6.3, or transfers of Subscription Rights to its account at DTC), received prior
to 5:00 p.m., New York City time, on the Expiration Date.
Section 6.8. No Revocation. Once a Holder has exercised a Subscription
Right, such exercise may not be revoked.
Section 6.9. Guaranteed Signatures. If a Holder requests that the
certificate representing the Common Stock to be issued in a name other than the
name of the Holder or such certificate is to be sent to an address other than
the address shown on such Holder's
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Subscription Certificate, the signatures on such Subscription Certificate must
be guaranteed by an Eligible Institution.
ARTICLE 7
VALIDITY OF SUBSCRIPTIONS
Section 7.1. Validity of Subscriptions. Irregular subscriptions and
improperly executed Subscription Documents 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.
ARTICLE 8
OVERSUBSCRIPTION
Section 8.1. Over-Subscription Privilege. To the extent Holders do not
exercise all of the Subscription Rights issued to them pursuant to the Basic
Subscription Privilege, any Underlying Shares represented by such Subscription
Rights will be offered by means of the Over-Subscription Privilege to the
Holders who wish to acquire more than the number of Underlying Shares to which
they are entitled. Holders may indicate, on the Subscription Certificate that
they submit with respect to the exercise of the Subscription Rights issued to
them, how many Underlying Shares they desire to purchase pursuant to the
Over-Subscription Privilege. If sufficient Underlying Shares remain after
completion of the Basic Subscription Privilege, all Over-Subscription requests
will be honored in full. If sufficient Underlying Shares are not available to
honor all Over-Subscription requests, the available shares will be allocated pro
rata (subject to elimination of fractional shares) among Holders who exercise
the Over-Subscription Privilege based on the ratio that the number of available
shares bears to the total number of shares which all Holders who exercise the
Over-Subscription Privilege seek to purchase on the basis specified in the
Prospectus.
Section 8.2 Refunds. As soon as practicable after the expiration date and
the allocation of shares subscribed for pursuant to the Over-Subscription
Privilege, the Agent shall refund to each Holder any amount paid by such Holder
and not applied toward the purchase of Underlying Shares pursuant to such
Holder's exercise of its Over-Subscription Privilege.
ARTICLE 9
DELIVERY OF STOCK CERTIFICATES
Section 9.1. Delivery of Stock Certificates. As soon as practicable after
the Expiration Date, the Agent shall deliver to such exercising Subscription
Rights holder certificates representing the shares of Common Stock purchased
pursuant to the Basic Subscription Privilege and the Over-Subscription
Privilege, if any.
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ARTICLE 10
REPORTS
Section 10.1. Reports. The Agent shall notify both the Company and its
designated representatives by telephone as requested during the period
commencing with the mailing of Subscription Documents and ending on the
Expiration Date (and in the case of guaranteed deliveries pursuant to Section
6.3 the period ending three OTC trading days after the Expiration Date), which
notice shall thereafter be confirmed in writing, of (i) the number of
Subscription Rights exercised on the day of such request, (ii) the number of
Underlying Shares subscribed for pursuant to the Basic Subscription Privilege
and the Over-Subscription Privilege, if any, and the number of such Subscription
Rights for which payment has been received, (iii) the number of Subscription
Rights subject to guaranteed delivery pursuant to Section 6.3 on such day, (iv)
the number of Subscription Rights for which defective exercises have been
received on such day and (v) cumulative totals derived from the information set
forth in clauses (i) through (iv) above. At or before 5:00 p.m., New York City
time, on the first OTC trading day following the Expiration Date, the Agent
shall certify in writing to the Company the cumulative totals through the
Expiration Date derived from the information set forth in clauses (i) through
(iv) above. The Agent shall also maintain and update a listing of Holders who
have fully or partially exercised their Subscription Rights and Holders who have
not exercised their Subscription Rights. The Agent shall provide the Company or
its designated representatives with the information compiled pursuant to this
Article 10 as any of them shall request. The Agent hereby represents, warrants
and agrees that the information contained in each notification referred to in
this Article 10 shall be accurate in all material respects.
ARTICLE 11
LOSS OR MUTILATION
Section 11.1. Loss or Mutilation. Upon receipt by the Company and the
Agent of evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Subscription Certificate, and, in case of loss,
theft or destruction, of indemnity and/or security satisfactory to them, which
may be in the form of an open penalty bond, and reimbursement to the Company and
the Agent of all reasonable expenses incidental thereto, and upon surrender and
cancellation of the Subscription Certificate if mutilated, the Company will make
and deliver a new Subscription Certificate of like tenor to the Agent for
delivery to the registered owner in lieu of the Subscription Certificate so
lost, stolen, destroyed or mutilated. If required by the Company or the Agent an
indemnity bond must be sufficient in the judgment of both to protect the
Company, the Agent or any agent thereof from any loss which any of them may
suffer if a Subscription Certificate is replaced.
ARTICLE 12
COMPENSATION FOR SERVICES
Section 12.1. Compensation. The Company agrees to pay to the Agent a fee
in the amount of $________ as compensation for its services in acting as Agent,
plus postage fees incurred in the performance of Agent's duties hereunder.
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ARTICLE 13
INSTRUCTIONS AND INDEMNIFICATION
Section 13.1. Instructions; 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 written
instructions or directions furnished to it by Xxxx X. Xxxxxxx, the Company's
President and Chief Executive Officer, Xxxxxxx X. Xxxxxxx, the Company's Chief
Financial Officer, or their designees (each, an "Authorizing Person"), 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 Authorizing Person 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 also agrees to indemnify and hold the Agent harmless
against any losses, claims, actions, damages, liabilities, costs or expenses
(including reasonable fees and disbursements of legal counsel) (collectively,
"Claims") that the Agent may incur or become subject to, arising from or out of
any claim or liability resulting from actions taken as Agent pursuant to this
Agreement; provided, however, that such covenant and agreement does not extend
to, and the Agent shall not be indemnified or held harmless with respect to,
such Claims incurred or suffered by the Agent as a result, or arising out, of
the Agent's negligence, misconduct, bad faith or breach of this Agreement. In
connection therewith: (i) in no case shall the Company be liable with respect to
any Claim against the Agent unless the Agent shall have notified the Company in
writing of the assertion of a Claim against it promptly after the Agent shall
have notice of a Claim or shall have been served with the summons or other legal
process giving information as to the nature and basis of the Claim; provided,
however, that the failure of the Agent to notify the Company in the above manner
will absolve the Company of liability only when such failure will result or has
resulted in prejudice to the Company with respect to such claim; (ii) the
Company shall be entitled to control the defense of any suit brought to enforce
any such Claim; and (iii) the Agent agrees not to settle or compromise any Claim
with respect to which it may seek indemnification from the Company without the
prior written consent of the Company. In no event shall the Company be liable
for the fees and expenses of any additional counsel that the Agent may retain.
(c) The Agent shall be protected and shall incur no liability for or
in respect of any action taken, suffered or omitted by it without negligence and
in good faith in connection with its administration of this Agreement in
reliance upon any Subscription Certificate, or written power of attorney,
endorsement, affidavit, letter, notice, direction, consent, certificate,
statement or other paper or document reasonably believed by it to be genuine and
to be signed, executed and, where necessary, verified or acknowledged by the
proper person or persons.
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ARTICLE 14
INTERPRETATION AND FUTURE INSTRUCTIONS
Section 14.1. Interpretation. All questions as to the timeliness,
validity, form and eligibility of any exercise of Subscription Rights will be
determined by the Company whose determinations shall be final and binding. The
Company in its sole discretion may waive any defect or irregularity, permit a
defect or irregularity to be corrected within such time as it may determine or
reject the purported exercise of any Subscription Right. Subscriptions will not
be deemed to have been received or accepted until all irregularities have been
waived or cured within such time as the Company determines in its sole
discretion. Neither the Company nor the Agent shall be under any duty to give
notification of any defect or irregularity in connection with the submission of
Subscription Documents or incur any liability for failure to give such
notification.
Section 14.2. Future Instructions. The Agent is hereby authorized and
directed to accept written instructions with respect to the performance of its
duties hereunder from an authorized officer of the Company, and to apply to such
officers for written advice or instructions in connection with its duties, and
it shall not be liable for any action taken or suffered to be taken by it in
good faith in accordance with written instructions of any such officer.
ARTICLE 15
PAYMENT OF TAXES
Section 15.1. Payment of Taxes. The Company covenants and agrees that it
will pay when due and payable all documentary, stamp and other taxes, if any,
which may be payable in respect of the issuance or delivery of any Subscription
Certificate or of the Underlying Shares; provided, however, that the Company
shall not be liable for any tax liability arising out of any transaction which
results in, or is deemed to be, an exchange of Subscription Rights or shares or
a constructive dividend with respect to the Subscription Rights or shares, and
provided further, that the Company shall not be required to pay any tax or other
governmental charge which may be payable in respect of the issuance or delivery
of certificates for shares of Common Stock in name other than that of the
registered Holder of such Subscription Certificate evidencing the Subscription
Rights exercised, and the Agent shall not issue any such certificate until such
tax or governmental charge, if required, shall have been paid.
ARTICLE 16
CANCELLATION AND DESTRUCTION OF SUBSCRIPTION CERTIFICATES
Section 16.1. Cancellation and Destruction. All Subscription Certificates
surrendered for the purpose of exercise, exchange, or substitution shall be
canceled by the Agent, and no Subscription Certificates shall be issued in lieu
thereof except as expressly permitted by provisions of this Agreement. The
Company shall deliver to the Agent for cancellation and retirement, and the
Agent shall so cancel and return, any other Subscription Certificate purchased
or acquired by the Company otherwise than upon the exercise thereof. The Agent
shall deliver all canceled Subscription Certificates to the Company, or shall,
at the written
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request of the Company, destroy such canceled Subscription Certificates, and in
such case shall deliver a certificate of destruction thereof to the Company.
ARTICLE 17
CHANGES IN SUBSCRIPTION CERTIFICATE
Section 17.1. Changes in Subscription Certificate. The Agent may, without
the consent or concurrence of the Holders 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 Holders.
ARTICLE 18
ASSIGNMENT AND DELEGATION
Section 18.1. No Assignment; Delegation. Neither this Agreement nor any
rights or obligations hereunder may be assigned or delegated by either party
without the prior written consent of the other party.
Section 18.2. Binding Nature. 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.
ARTICLE 19
NOTICES TO THE COMPANY, HOLDERS AND AGENT.
Section 19.1 Notices. All notices and other communications provided for or
permitted hereunder shall be made by hand delivery, prepaid certified
first-class mail (return receipt requested), or telecopier (with written
confirmation of receipt):
(a) if to the Company, to:
Xxxxxxx International, Ltd.
Xxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) if to the Agent, to:
American Stock Transfer & Trust Company
00 Xxxx Xxxxxx, 00xx Xxxxx
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Xxx Xxxx, XX 00000
Attention: Exchange Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(c) if to a Holder, at the address shown on the registry books of
the Company.
All such notices and communications shall be deemed to have been duly given:
when delivered by hand, if personally delivered; when by certified mail, two
business days after being deposited in the mail, postage prepaid, if mailed as
aforesaid; and when receipt is acknowledged, if telecopied.
ARTICLE 20
MISCELLANEOUS PROVISIONS
Section 20.1. Governing Law. The validity, interpretation and performance
of this Agreement shall be governed by the law of the state of Connecticut,
without regard to its principles of conflicts of law. The parties agree that
with respect to all unresolved disputes arising out of this Agreement they shall
submit to the jurisdiction of any state or federal court sitting in Hartford,
Connecticut.
Section 20.2. Severability. The parties hereto agree that if any of the
provisions contained in this Agreement shall be determined invalid, unlawful or
unenforceable to any extent, such provisions shall be deemed modified to the
extent necessary to render such provisions enforceable. The parties hereto
further agree that this Agreement shall be deemed severable, and the invalidity,
unlawfulness or unenforceability of any term or provision thereof shall not
affect the validity, legality or enforceability of this Agreement or of any term
or provision hereof.
Section 20.3. 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.
Section 20.4. 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.
Section 20.5. Facsimile Signatures. Any facsimile signature of any party
hereto shall constitute a legal, valid and binding execution hereof by such
party.
Section 20.6. Further Actions. Each party agrees to perform such further
acts and execute such further documents as are necessary to effect the purposes
of this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have hereunto set their hands and seals,
as of the day and year first above written.
XXXXXXX INTERNATIONAL, LTD.
By: ________________________________
Name:
Title:
AMERICAN STOCK TRANSFER &
TRUST COMPANY
By: ________________________________
Name:
Title:
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