Exhibit 99.8
SUBSCRIPTION AGENT AGREEMENT
DATE: __________, 2005
HSBC Bank USA, National Association
Xxx Xxxxxx Xxxxx, Xxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn.: Corporate Trust
Ladies and Gentlemen:
Pursuant to a proposed rights offering (the "Rights Offering"), Blue Ridge
Real Estate Company, a Pennsylvania corporation ("Blue Ridge"), and Big Boulder
Corporation, a Pennsylvania corporation ("Big Boulder" and, together with Blue
Ridge, the "Company"), are issuing to holders of record of the outstanding
shares of common stock, no par value, of the Company (the "Common Stock"), at
the close of business on March 23, 2005 (the "Record Date"), rights to subscribe
for and purchase (each a "Right") one (1) share of Common Stock for each 4.798
shares of Common Stock a shareholder owns at a purchase price of $38.00 per
share (the "Subscription Price"), upon the terms and conditions set forth
herein. A total of 407,894 shares of Common Stock are to be offered pursuant to
the Rights Offering. The term "Subscribed" shall mean submitted for purchase
from the Company by a shareholder in accordance with the terms of the Rights
Offering, and the term "Subscription" shall mean any such submission. The Rights
Offering will expire at 5:00 p.m., New York City time, on May 9, 2005 (the
"Expiration Time"), unless the Company shall have extended the period of time
for which the Rights Offering is open, in which event the term "Expiration Time"
shall mean the latest time and date at which the Rights Offering, as so extended
by the Company from time to time, shall expire.
The Company filed a Registration Statement on Form S-1 (File No.
333-121855), as amended (the "Registration Statement"), relating to the Rights
Offering with the Securities and Exchange Commission under the Securities Act of
1933, as amended. The Registration Statement was declared effective on _______,
2005. The terms and conditions of the Rights Offering are more fully described
in the prospectus forming part of the Registration Statement as it was declared
effective (the "Prospectus"), and the accompanying "Instructions for Use of the
Use of Blue Ridge and Big Boulder Rights Subscription Certificates" (the
"Instructions"). Copies of the following documents are attached hereto as the
following exhibits:
- Exhibit 1 - the Prospectus;
- Exhibit 2 - the Instructions;
- Exhibit 3 - form of Notice of Guaranteed Delivery;
- Exhibit 4 - form of Notice to Shareholders of Subscription Rights;
- Exhibit 5 - form of Letter to Security Dealers, Commercial Banks,
Trust Companies and Other Nominees;
- Exhibit 6 - form of Client Prospectus Letter;
- Exhibit 7 - form of Nominee Holder Certificate; and
- Exhibit 8 - Beneficial Owner Election Form.
Exhibits 1 through 8 herein, together with Exhibit 9, which is described
below, shall be referred to collectively in this Agreement as the "Subscription
Documents."
All terms used and not defined in this Subscription Agent Agreement (this
"Agreement") shall have the same meaning as in the Prospectus. Promptly after
the Record Date, you, as transfer agent for the Common Stock (in such capacity,
the "Transfer Agent"), will provide the Company with a list of holders of Common
Stock who each own at least 4.798 shares of Common Stock as of the Record Date
(the "Record Shareholders List").
The Rights are evidenced by non-transferable rights subscription
certificates (the "Certificates"), the form of which is annexed hereto as
Exhibit 9. The Certificates entitle the Rights holders to subscribe, upon
payment of the Subscription Price, for shares of Common Stock at the rate of one
(1) share for each Right evidenced by a Certificate (the "Basic Subscription
Privilege"). No fractional shares of Common Stock will be issued. In addition,
subject to pro-rata allocation, each Right also entitles the holder thereof, so
long as such holder has fully exercised the holder's Rights pursuant to the
Basic Subscription Privilege, to subscribe at the Subscription Price for
additional shares of Common Stock, not to exceed the number of shares of Common
Stock available for such holder to purchase under its Basic Subscription
Privilege (the "Over-Subscription Privilege"), subject to proration. Shares of
Common Stock will be available for purchase pursuant to the Over-Subscription
Privilege only to the extent that all the shares of Common Stock are not
Subscribed for through the exercise of the Basic Subscription Privilege by the
Expiration Time. Reference is made to the Prospectus for a complete description
of the Basic Subscription Privilege and the Over-Subscription Privilege.
The Company hereby appoints you as Subscription Agent (the "Subscription
Agent") for the Rights Offering and agrees with you as follows:
1. You will perform such duties and only such duties as are specifically
set forth herein or in the section of the Prospectus captioned the "The Rights
Offering" or in the Subscription Documents accompanying the Prospectus and such
duties which are necessarily incidental thereto; provided however, that in no
way will your general duty to act in good faith be discharged by the foregoing.
2. As Subscription Agent, you are authorized and directed to:
(A) Issue the Certificates and shares of Common Stock purchased
pursuant thereto in accordance with this Agreement in the names shown on the
Record Shareholders List, keep such records as are necessary for the purpose of
recording such issuance, and furnish a copy of such records to the Company. You
shall indicate the address of and the number of Rights issued to each such
holder on the face of the Certificates and affix such other identifying
information as you deem necessary to identify each particular shareholder upon
return of the executed Certificates. 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 you prepare the Record Shareholders List:
(i) mail or cause to be mailed, by first class mail, to each
Rights holder whose address of record is within the United States, (a) a
Certificate evidencing the Rights to which such holder is entitled under the
Rights Offering, (b) a copy of the Subscription Documents and (c) a return
envelope addressed to the Subscription Agent; and
(ii) mail or cause to be mailed, by first class mail, to each
Rights holder whose address of record is outside the United States, or is an
A.P.O. or F.P.O. address (a) a copy of the Prospectus, (b) a Notice of
Guaranteed Delivery and (c) the Instructions. You shall refrain from mailing
Certificates issuable to any Rights holder whose address of record is outside
the United States, or is an A.P.O. or F.P.O. address, and you shall hold such
Certificates for the account of such Rights holder subject to such Rights holder
making satisfactory arrangements with the Subscription Agent for the exercise of
the Rights evidenced thereby, and follow the instructions of such holder for the
exercise of such Rights if such instructions are received at or before 11:00
a.m., New York City time, on or before the third business day prior to the
Expiration Time.
(C) 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.
(D) 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 if such
Subscription is accompanied by proper payment for the total number of shares of
Common Stock Subscribed for and:
(i) if the Certificate is registered in the name of a
fiduciary and is executed by, and the shares of Common Stock are 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 shares of 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 shares of
Common Stock are 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 that the shares of
Common Stock are 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.
(E) 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 a member of the National Association of
Securities Dealers, Inc., 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 Common Stock
Subscribed for.
(F) Refer to the Company for specific instructions as to acceptance
or rejection of Subscriptions received after the Expiration Time, Subscriptions
not authorized to be accepted pursuant to
this Paragraph 2, and Subscriptions otherwise failing to comply with the
requirements of the Prospectus and the terms and conditions of the Certificates.
(G) Upon acceptance of a Subscription:
(i) hold all monies received in a special separate and
segregated account for the benefit of the Company;
(ii) promptly following the Expiration Time, you shall
distribute to the Company the funds in such account and cause delivery of the
share certificates evidencing the shares of Common Stock issuable with respect
to Subscriptions which have been accepted to the applicable Rights holders;
(iii) advise the Company daily by telecopy and confirm by
letter, or by electronic mail, to the attention of Xxxxxxxxx X. Xxxxxxx
(xxxxxx@xxxx.xxx) (the "Company Representative") as to the total number of
shares of Common Stock Subscribed for, the total number of shares of Common
Stock sold, and the amount of funds received, with cumulative totals for each;
and in addition, advise the Company Representative, by telephone at (570)
000-0000, ext. 1028, confirmed by telecopy or by electronic mail, of the amount
of funds received identified in accordance with (i) above, deposited, available
or transferred in accordance with (i) above, with cumulative totals; and
(iv) 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 (iii)
above of the number of shares of Common Stock Subscribed for pursuant to the
Basic Subscription Privilege, the number of shares of Common Stock Subscribed
for pursuant to the Over-Subscription Privilege, the number of Subscription
guarantees received and shares of Common Stock Subscribed for pursuant to such
guarantees, and the number of shares of Common Stock unsubscribed for.
(H) Upon completion of the Rights Offering, you, as Transfer Agent,
shall issue shares of Common Stock Subscribed for in the same form, certificated
or book-entry, as the shares of Common Stock held by the subscriber exercising
Rights for such shares of Common Stock.
(I) If a shareholder exercised its Over-Subscription Privilege and
is allocated less than all of the shares of Common Stock for which it
Subscribed, you shall take such action as reasonably requested by the Company to
return the excess funds such shareholder paid for the shares of Common Stock not
allocated to such shareholder, without interest or deduction.
3. You will follow your regular procedures to attempt to reconcile any
discrepancies between the number of shares of Common Stock that any Certificate
may indicate are to be issued to a shareholder and the number that the Record
Shareholders List indicates may be issued to such shareholder. In any instance
where you cannot reconcile such discrepancies by following such procedures, you
will consult with the Company for instructions as to the number of shares of
Common Stock, if any, you are authorized to issue. In the absence of such
instructions, you are authorized not to issue any shares of Common Stock to such
shareholder.
4. You will examine the Certificates received by you as Subscription Agent
to ascertain whether they appear to you to have been completed and executed in
accordance with the Instructions. In the event you determine that any
Certificate does not appear to you to have been properly completed or executed,
or where the Certificates do not appear to you to be in proper form for
Subscription, or any other irregularity in connection with the Subscription
appears to you to exist, you will follow, where
possible, your regular procedures to attempt to cause such irregularity to be
corrected. You are not authorized to waive any irregularity in connection with
the Subscription, unless you 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, you will return to the
subscribing shareholder (at your option by either first class mail under a
blanket surety bond or insurance protecting you 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
shareholder's address as set forth in the Subscription, any Certificates
surrendered in connection therewith, any other documents received with such
Certificates and a letter of notice explaining the reasons for the return of the
Certificates and other documents.
5. Each document received by you relating to your duties hereunder shall
be dated and time stamped when received.
6. (A) 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 Common Stock to permit the exercise in full of
all Rights issued pursuant to the Rights Offering. Subject to the terms and
conditions of this Agreement, you, as the Transfer Agent, will issue the
appropriate number of shares of Common Stock, as required from time to time in
order to effectuate the Subscriptions.
(B) 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 Common Stock issuable upon the exercise of
the Certificates at the time of delivery of the share certificates therefor
(subject to payment of the Subscription Price) will be duly and validly issued
and fully paid and nonassessable shares of Common Stock.
(C) Except as set forth in the Prospectus, 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 United States federal and state laws which may be necessary
or appropriate in connection with the issuance, sale and delivery of the shares
of Common Stock issued upon exercise of the Rights.
7. If shares of Common Stock are to be delivered by you to a person other
than the person in whose name a surrendered Certificate is registered, you will
issue no such shares until the Certificate so surrendered has been properly
endorsed and the person requesting such exchange has paid any transfer or other
taxes or governmental charges required by reason of the issuance of the shares
of Common Stock in a name other than that of the registered holder of the
Certificate surrendered, or has established to your satisfaction that any such
tax or charge either has been paid or is not payable.
8. Should any issue arise regarding tax reporting or withholding, you will
take such action as the Company instructs you in writing.
9. As agent for the Company hereunder, you:
(A) shall have no duties or obligations other than those
specifically set forth herein or as may subsequently be agreed to in writing by
you and the Company;
(B) shall be regarded as making no representations and having no
responsibilities as to the validity, value, or genuineness of any Certificates
surrendered to you hereunder or shares of 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
Rights Offering;
(C) shall not be obligated to take any legal action hereunder which
might in your reasonable judgment involve any expense or liability, unless you
shall have been furnished with reasonable indemnity;
(D) shall not be liable to the Company for any action taken or
omitted by you, or any action suffered by you to be taken or omitted, without
gross negligence, willful misconduct or bad faith on your part, by reason of or
as a result of the administration of your duties hereunder in accordance with
the terms and conditions of this Agreement or by reason of your compliance with
the instructions set forth herein or with any written or oral instructions
delivered to you pursuant hereto, and may reasonably rely on and shall be
protected in acting in good faith in reliance upon any certificate, instrument,
opinion, notice, letter, facsimile or other document or security delivered to
you and reasonably believed by you to be genuine and to have been signed by the
proper party or parties;
(E) may reasonably rely upon any statement, request, comment,
agreement or other instrument whatsoever, not only as to its due execution and
validity and effectiveness of its provisions, but also as to the truth and
accuracy of any information contained therein, which you shall in good faith
reasonably believe to be genuine or to have been signed or represented by a
proper person or persons;
(F) may rely on and shall be protected in acting upon written notice
or oral instructions from any authorized officer of the Company;
(G) shall not advise any person exercising Rights pursuant to the
Rights Offering as to whether to exercise or refrain from exercising all or any
portion of such person's Rights or as to the market value, decline or
appreciation in market value of the Common Stock that may or may not occur as a
result of the Rights Offering or as to the market value of the Common Stock;
(H) may consult with counsel with respect to any questions relating
to your duties and responsibilities, and the written 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
reliance thereon; and
(I) are not authorized, and shall have no obligation, to pay any
brokers or dealers, or soliciting fees to any person.
10. In the event any question or dispute arises with respect to the proper
interpretation of the Rights Offering or your duties hereunder or the rights of
the Company or of any shareholders surrendering Certificates pursuant to the
Rights Offering, you shall not be required to act and shall not be held liable
or responsible for your refusal to act until the question or dispute has been
judicially settled (and, if appropriate, you may, at the expense of the Company,
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
parties interested in the matter which is no longer subject to review or appeal,
or settled by a written document satisfactory to you and executed by the Company
and each such shareholder and party.
11. For your services as Subscription Agent hereunder, the Company shall
pay to you compensation in accordance with Exhibit A attached hereto, together
with reimbursement for out-of-
pocket expenses, including reasonable fees and disbursements of counsel not to
exceed $5,000, subject to the receipt of reasonably satisfactory documentation
thereof and in accordance with Exhibit A.
12. Each of Blue Ridge and Big Boulder represents and warrants that (a) it
is duly incorporated and presently subsisting under the laws of the Commonwealth
of Pennsylvania, (b) the making and consummation of the Rights Offering 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 articles of incorporation or bylaws of either Blue Ridge or
Big Boulder and (c) this Agreement has been duly executed and delivered by each
of Blue Ridge and Big Boulder and constitutes a valid and binding obligation of
it.
13. You hereby acknowledge receipt of the Prospectus, the Subscription
Documents and the other documents associated with the Rights Offering attached
hereto and further acknowledge that you have examined each of them. Any
inconsistency between this Agreement, on the one hand, and the Prospectus, the
Subscription Documents and such other forms (as they may be amended from time to
time), on the other hand, shall be resolved in favor of the Prospectus, the
Subscription Documents and such other forms, except with respect to the duties,
liabilities and indemnification of you as Subscription Agent, which shall be
controlled by this Agreement.
14. The Company agrees to indemnify and hold you harmless in your capacity
as Subscription Agent hereunder against any liability, cost or expense,
including reasonable attorneys' fees and expenses, arising out of or in
connection with your appointment as Subscription Agent and the performance of
your duties hereunder, including, without limitation, any act, omission, delay
or refusal made by you in reasonable reliance upon any signature, endorsement,
assignment, certificate, order, request, notice, instruction or other instrument
or document reasonably believed by you to be valid, genuine and sufficient and
in accepting any exercise of Rights or effecting the issuance of any shares of
Common Stock upon the exercise of Rights reasonably believed by you in good
faith to be authorized, and in delaying or refusing in good faith to accept any
exercise of Rights or effect any issuance of shares of Common Stock upon the
exercise of Rights; provided, however, that the Company shall not be liable for
indemnification or otherwise for any loss, liability, cost or expense to the
extent arising out of your gross negligence, willful misconduct or bad faith. In
each case, you shall notify the Company, by letter or facsimile transmission of
the written assertion of a claim against you or of any other action commenced
against you, promptly after you shall have received any such written assertion
or shall have been served with a summons in connection therewith. The Company
shall be entitled to participate at its own expense in the defense of any such
claim or other action and, if the Company so elects, the Company shall assume
the defense of any suit brought to enforce any such claim. In the event that the
Company shall assume the defense of any such suit and the Company does not
retain counsel satisfactory to you to defend such suit, you may retain counsel
to defend you in such suit and the Company shall pay the reasonable fees and
expenses of such counsel.
15. This Agreement and your appointment as Subscription Agent hereunder
shall be construed and enforced in accordance with the laws of the State of New
York applicable to agreements made and to be performed entirely within such
state, and without regard to conflicts of law principles, and shall inure to the
benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement. Without limitation of the foregoing, the parties hereto
expressly agree that no shareholder of the Company shall have any right, benefit
or remedy of any nature whatsoever under or by reason of this Agreement.
16. If any part of this Agreement, for any reason, is declared invalid,
illegal or unenforceable, it shall be deemed restated to reflect as nearly as
possible in accordance with applicable law the original intentions of the
parties. The remainder of this Agreement shall continue in effect as if the
Agreement had been entered into without the invalid, illegal or unenforceable
portion.
17. This Agreement may be executed in any number of counterparts, each of
which when so executed and delivered will be an original hereof, and it will not
be necessary in making proof of this Agreement to produce or account for more
than one counterpart hereof.
18. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the party to be
charged.
19. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile),
shall be effective upon receipt and shall be given to such party, addressed to
it, as its address or facsimile number set forth below:
If to the Company:
Blue Ridge Real Estate Company
Big Boulder Corporation
Xxxxx 000 xxx Xxxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
Facsimile No. (000) 000-0000
Attention: Xxxxx Xxxxxxxxxx
with a copy to:
Xxxxxx, Xxxxx & Bockius LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Facsimile No. (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
If to the Exchange Agent:
HSBC Bank USA, National Association
Xxx Xxxxxx Xxxxx, Xxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Corporate Trust
20. The Company may terminate this Agreement at any time by so notifying
you in writing. You may terminate this Agreement upon 30 days' prior written
notice to the Company. Unless terminated earlier by the parties hereto in
accordance with prior sentences, this Agreement shall terminate 90 days
following the Expiration Date. Notwithstanding the foregoing, this Paragraph 20
and Paragraphs 9, 11, 14 and 15 shall survive the termination of this Agreement.
Upon any termination of this Agreement, you shall promptly deliver to the
Company or its designee(s) any certificates, funds or other
property (including, without limitation, Subscription Documents and any other
documents relating to the Rights Offering) then held by you as Subscription
Agent under this Agreement.
21. Neither party may assign this Agreement without the prior written
consent of the other party.
22. This Agreement shall be binding and effective as of the date hereof.
Please acknowledge receipt of this letter and confirm your agreement
concerning your appointment as Subscription Agent, and the arrangements herein
provided, by signing and returning the enclosed copy hereof, whereupon this
Agreement and your acceptance of the terms and conditions herein provided shall
constitute a binding Agreement between us.
Very truly yours,
BLUE RIDGE REAL ESTATE
BIG BOULDER CORPORATION
By: ________________________________
Name:
Title:
Accepted as of the date above first written:
HSBC BANK USA, NATIONAL
ASSOCIATION, as Subscription Agent
By: ________________________________
Name:
Title:
Exhibit 1 Prospectus
Exhibit 2 Instructions for Use of Blue Ridge and Big Boulder Rights
Subscription Certificates
Exhibit 3 Notice of Guaranteed Delivery
Exhibit 4 Form of Notice to Shareholders of Subscription Rights
Exhibit 5 Form of Letter to Security Dealers, Commercial Banks, Trust
Companies and Other Nominees
Exhibit 6 Form of Client Prospectus Letter
Exhibit 7 Form of Nominee Holder Certificate
Exhibit 8 Form of Beneficial Owner Election Form
Exhibit 9 Form of Rights Subscription Certificate
EXHIBIT A
SCHEDULE OF FEES AS SUBSCRIPTION AGENT
