EXHIBIT 99.9
FORM OF
SUBSCRIPTION AGENT AGREEMENT
Date:
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Mellon Bank, N.A.
00 Xxxxxxxxxx Xx.
Xxxxxxxxxx Xxxx, XX 00000
Attn: Reorganization Department
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Gentlemen:
Milacron Inc., a Delaware corporation (the "Company"), is offering (the
"Subscription Offer") to the holders of record of its outstanding shares of
Common Stock par value $0.01 per share (the "Common Stock") (other than any
Common Stock received upon conversion of the Company's 6.0% Series B Convertible
Preferred Stock (the "Series B Preferred Stock")), as of 5:00 p.m., New York
City time, on _______ (the "Record Date"), the right to subscribe for and
purchase (each a "Right") up to 16,300,000 shares of Common Stock (the
"Additional Common Stock") at a purchase price of $2.00 per share (the
"Subscription Price") upon the terms and conditions set forth herein. The term
"Subscribed" shall mean submitted for purchase from the Company by a stockholder
in accordance with the terms of the Subscription Offer, and the term
"Subscription" shall mean any such submission. The Subscription Offer will
expire as of 5:00 p.m., New York City time, on _________ (the "Expiration
Time"), unless the Company shall have extended the period of time for which the
Subscription Offer is open, in which event the term "Expiration Time" shall mean
the latest time and date at which the Subscription Offer, as so extended by the
Company from time to time, shall expire.
The Company filed a registration statement relating to the Additional
Common Stock (the "Registration Statement") with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, on _________. The
Registration Statement was declared effective on ________. The terms of the
Additional Common Stock are more fully described in the prospectus forming part
of the Registration Statement (the "Prospectus"). A copy of the Prospectus is
annexed hereto as Exhibit 1. All terms used and not defined herein 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 as of the Record
Date (the "Record Stockholders List").
The Rights are exercisable pursuant to nontransferable subscription
certificates (the "Certificates"), a copy of the form of which is annexed hereto
as Exhibit 2. The Certificates entitle the holders to subscribe, upon payment of
the Subscription Price, for shares of Additional Common Stock at the rate of one
share for each Right (the "Subscription Privilege"). Each holder of Common Stock
(other than any Common Stock received upon conversion of Series B Preferred
Stock) is being granted 0.452 Rights for each share of Common Stock held on the
Record Date, but fractional rights held by a shareholder after aggregating all
Rights to which the shareholder is entitled will be rounded up to the nearest
whole number. Reference is made to the Prospectus for a complete description of
the Subscription Privilege.
The Company hereby appoints you as Subscription Agent (the "Subscription
Agent") for the Subscription Offer and agrees with you as follows:
1) As Subscription Agent, you are authorized and directed to:
(A) Issue the Certificates in accordance with this Agreement in the
names of the holders of the Common Stock (other than any Common Stock
received upon conversion of Series B Preferred Stock) of record on the
Record Date, keep such records as are necessary for the purpose of
recording such issuance, and furnish a copy of such records to the
Company. The Certificates may be signed on behalf of the Subscription
Agent by the manual or facsimile signature of a Vice President or
Assistant Vice President of the Subscription Agent, or by the manual
signature of any of its other authorized officers.
(B) Promptly after you prepare the Record Stockholders List:
(a) mail or cause to be mailed, by first class mail, to each holder
of Common Stock (other than any Common Stock received upon conversion of
Series B Preferred Stock) of record on the Record Date whose address of
record is within the United States and Canada, (i) a Certificate pursuant
to which the Rights to which such stockholder is entitled under the
Subscription Offer may be exercised, (ii) a copy of the Prospectus, (iii)
a letter of instruction and (iv) a return envelope addressed to the
Subscription Agent; and
(b) mail or cause to be mailed, by air mail, to each holder of
Common Stock (other than any Common Stock received upon conversion of
Series B Preferred Stock) of record on the Record Date whose address of
record is outside the United States and Canada, or is an A.P.O. or F.P.O.
address, (i) a copy of the Prospectus and (ii) a letter of instruction
(different from the letter of instruction sent to stockholders whose
address of record is within the United States and Canada). You shall
refrain from mailing a Certificate to any holder of Common Stock of record
on the Record Date whose address of record is outside the United States
and Canada, or is an A.P.O. or F.P.O. address, and you shall hold such
Certificate for the account of any such stockholder subject to such
stockholder sending a letter of instruction indicating the number of
Rights that such stockholder elects to exercise, together with payment of
the Subscription Price for each share subscribed for, to the Subscription
Agent for the exercise of the Rights evidenced thereby, and you shall
follow the instructions of such stockholder for the exercise of such
Rights if such instructions, together with payment of the Subscription
Price, including final clearance of any checks, are received at or 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:
(a) if the Certificate is issued to a fiduciary and is
executed by and the Additional Common Stock is to be issued in the
name of such fiduciary;
(b) if the Certificate is issued in the name of joint tenants
and is executed by one of the joint tenants, provided the
Certificate representing the Additional Common Stock is issued in
the names of, and is to be delivered to, such joint tenants;
(c) if the Certificate is issued in the name of a corporation
and is executed by a person in a manner which appears or purports to
be done in the capacity of an officer, or agent thereof, provided
the Additional Common Stock is to be issued in the name of such
corporation; or
(d) if the Certificate is issued in the name of an individual
and is executed by a person purporting to act as such individual's
executor, administrator or personal representative, provided, the
Additional Common Stock is to be registered in the name of the
subscriber as executor or administrator of the estate of the
deceased registered holder and there is no evidence indicating the
subscriber is not the duly authorized representative that he
purports to be.
(E) Accept Subscriptions not accompanied by a Certificate if
submitted by a firm having membership in the New York Stock Exchange or
another national securities exchange or by a commercial bank or trust
company having an office in the United States and accompanied by proper
payment for the total number of shares of Additional Common Stock
Subscribed for.
(F) Accept Subscriptions even though unaccompanied by a Certificate,
under the circumstances and in compliance with the terms and conditions
set forth in the Prospectus under the heading "The Rights Offering".
(G) 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 1,
and Subscriptions otherwise failing to comply with the requirements of the
Prospectus and the terms and conditions of the Certificates.
(H) Upon acceptance of a Subscription:
(a) hold all monies received in a special account for the
benefit of the Company. Promptly following the Expiration Time you
shall distribute to the Company the funds in such account and issue
shares of Additional Common Stock issuable with respect to
Subscriptions which have been accepted.
(b) advise the Company daily by email or telecopy and confirm
by letter to the attention of Xxxx X. X'Xxxxxxx (the "Company
Representative"), as to the total number of shares of Additional
Common Stock Subscribed for and the
amount of funds received, with cumulative totals for each; and in
addition advise the Company Representative, by telephone at (513)
487-5982, confirmed by email or telecopy, of the amount of funds
received identified in accordance with (a) above, deposited,
available or transferred in accordance with (a) above, with
cumulative totals; and
(c) as promptly as possible but in any event on or before 3:30
p.m., New York City time, on the first full business day following
the Expiration Time, advise the Company Representative in accordance
with (b) above of the number of shares Subscribed for, the number of
Subscription guarantees received and the number of shares of
Additional Common Stock unsubscribed for.
(I) Upon completion of the Subscription Offer, you, as Transfer
Agent, shall issue shares of Additional 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 Additional Common
Stock.
2) You will follow your regular procedures to attempt to reconcile any
discrepancies between the number of shares of Additional Common Stock that any
Certificate may indicate are to be issued to a stockholder and the number that
the Record Stockholders List indicates may be issued to such stockholder. In any
instance where you cannot reconcile such discrepancies by following such
procedures, you will consult with the Company for instructions as to the number
of shares of Additional Common Stock, if any, you are authorized to issue. In
the absence of such instructions, you are authorized not to issue any shares of
Additional Common Stock to such stockholder.
3) 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 applicable letter of instruction. 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 stockholder (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
nonreceipt or nondelivery of Certificates or by registered mail insured
separately for the value of such Certificates) to such stockholder's address as
set forth in the Subscription any Certificates surrendered in connection
therewith and any other documents received with such Certificates, and a letter
of notice to be furnished by the Company explaining the reasons for the return
of the Certificates and other documents.
4) Each document received by you relating to your duties hereunder shall
be dated and time stamped when received.
5) (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 Additional Common Stock to permit the exercise in full of
all Rights granted pursuant to the Subscription Offer. Subject to the terms and
conditions of this Agreement, you, as Transfer Agent, will issue the appropriate
number of shares of Additional 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 Additional
Common Stock issuable upon the exercise of Rights at the time of delivery
of the certificates therefor (subject to payment of the Subscription
Price) will be duly and validly issued and fully paid and nonassessable
shares of Common Stock, free from all preemptive rights and taxes, liens,
charges and security interests created by or imposed upon the Company with
respect thereto.
(C) The Company shall from time to time take all action necessary or
appropriate to obtain and keep effective all registrations, permits,
consents and approvals of the Securities and Exchange Commission and any
other governmental agency or authority and make such filings under Federal
and state laws which may be necessary or appropriate in connection with
the issuance, sale, transfer and delivery of Additional Common Stock
issued upon exercise of Rights.
6) Should any issue arise regarding federal income tax reporting or
withholding, you will take such action as the Company instructs you in writing.
7) The Company may terminate this Agreement at any time by so notifying
you in writing. You may terminate this Agreement upon 30 days' prior notice to
the Company. Upon any such termination, you shall be relieved and discharged of
any further responsibilities with respect to your duties hereunder. Upon payment
of all your outstanding fees and expenses, you will forward to the Company or
its designee promptly any Certificate or other document relating to your duties
hereunder that you may receive after your appointment has so terminated.
Sections 8, 9, and 11 of this Agreement shall survive any termination of this
Agreement.
8) 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 have no obligation to issue any shares of Additional
Common Stock unless the Company shall have provided a sufficient number of
certificates for such Additional Common Stock;
(C) shall be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value, or genuineness of
any Certificates delivered to you hereunder or shares of Additional Common
Stock issued pursuant thereto, and will not be
required to or be responsible for and will make no representations as to,
the validity, sufficiency, value or genuineness of the Subscription Offer;
(D) shall not be obligated to take any legal action hereunder; if,
however, you determine to take any legal action hereunder, and where the
taking of such action might, in your judgment, subject or expose you to
any expense or liability you shall not be required to act unless you shall
have been furnished with an indemnity satisfactory to you;
(E) may rely on and shall be fully authorized and protected in
acting or failing to act upon any certificate, instrument, opinion,
notice, letter, telegram, telex, facsimile transmission or other document
or security delivered to you and believed by you to be genuine and to have
been signed by the proper party or parties;
(F) shall not be liable or responsible for any recital or statement
contained in the Prospectus or any other documents relating thereto;
(G) shall not be liable or responsible for any failure on the part
of the Company to comply with any of its covenants and obligations
relating to the Subscription Offer, including without limitation
obligations under applicable securities laws;
(H) may rely on and shall be fully authorized and protected in
acting or failing to act upon the written, telephonic or oral instructions
with respect to any matter relating to you acting as Subscription Agent
covered by this Agreement (or supplementing or qualifying any such
actions) of officers of the Company;
(I) may consult with counsel satisfactory to you and the advice 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 the advice of such counsel;
(J) may perform any of your duties hereunder either directly or by
or through agents or attorneys and you shall not be liable or responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with reasonable care by you hereunder; and
(K) are not authorized, and shall have no obligation, to pay any
brokers, dealers, or soliciting fees to any person.
9) In the event any question or dispute arises with respect to the proper
interpretation of the Subscription Offer, this Agreement or your duties
hereunder or the rights of the Company or of any stockholders exercising Rights
pursuant to the Subscription Offer, 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 file a suit in
interpleader or for a declaratory judgment for such purpose) by final judgment
rendered by a court of competent jurisdiction, binding on all stockholders and
parties interested in the matter which is no longer subject to review or appeal,
or settled by a written document in form and substance satisfactory to you and
executed by the Company and each such stockholder and party. In addition, you
may require for such
purpose, but shall not be obligated to require, the execution of such written
settlement by all the stockholders and all other parties that may have an
interest in the settlement.
10) Any instructions given to you orally, as permitted by any provision of
this Agreement, shall be confirmed in writing by the Company as soon as
practicable. You shall not be liable or responsible and shall be fully
authorized and protected for acting, or failing to act, in accordance with any
oral instructions which do not conform with the written confirmation received in
accordance with this Section.
11) Whether or not any Rights are exercised, for your services as
Subscription Agent hereunder, the Company shall pay to you compensation in
accordance with the fee schedule attached as Exhibit 3 hereto, together with
reimbursement for out-of-pocket expenses, including reasonable fees and
disbursements of counsel.
12) The Company covenants to indemnify and hold you harmless from and
against any loss, liability, claim or expense ("Loss") arising out of or in
connection with your duties under this Agreement, including the reasonable costs
and expenses of defending yourself against any Loss, unless such Loss shall have
been determined by a court of competent jurisdiction to be a result of your
gross negligence or intentional misconduct. Anything in this agreement to the
contrary notwithstanding, in no event shall either party be liable for special,
indirect, incidental or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if such party has been advised
of the likelihood of such damages and regardless of the form of action. Any
liability of yours will be limited to the amount of fees paid by the Company
hereunder.
The obligations of the Company under this section shall survive the
termination of this Agreement.
13) If any provision of this Agreement shall be held illegal, invalid, or
unenforceable by any court, this Agreement shall be construed and enforced as if
such provision had not been contained herein and shall be deemed an Agreement
among us to the full extent permitted by applicable law.
14) The Company represents and warrants that (a) it is duly incorporated,
validly existing and in good standing under the laws of its jurisdiction of
incorporation, (b) the making and consummation of the Subscription Offer and the
execution, delivery and performance of all transactions contemplated thereby
(including without limitation this Agreement) have been duly authorized by all
necessary corporate action and will not result in a breach of or constitute a
default under the certificate of incorporation or bylaws of the Company or any
indenture, agreement or instrument to which it is a party or is bound, (c) this
Agreement has been duly executed and delivered by the Company and constitutes
the legal, valid, binding and enforceable obligation of it, (d) the Subscription
Offer will comply in all material respects with all applicable requirements of
law and (e) to the best of its knowledge, there is no litigation pending or
threatened as of the date hereof in connection with the Subscription Offer.
15) In the event that any claim of inconsistency between this Agreement
and the terms of the Subscription Offer arise, as they may from time to time be
amended, the terms of the Subscription Offer shall control, except with respect
to the duties, liabilities and rights, including compensation and
indemnification of you as Subscription Agent, which shall be controlled by the
terms of this Agreement.
16) Set forth in Exhibit 4 hereto is a list of the names and specimen
signatures of the persons authorized to act for the Company under this
Agreement. The Secretary of the Company shall, from time to time, certify to you
the names and signatures of any other persons authorized to act for the Company
under this Agreement.
17) Except as expressly set forth elsewhere in this Agreement, all
notices, instructions and communications under this Agreement shall be in
writing, shall be effective upon receipt and shall be addressed, if to the
Company, to its address set forth beneath its signature to this Agreement, or,
if to the Subscription Agent, to Mellon Bank, N.A., 00 Xxxxxxxxxx Xx.,
Xxxxxxxxxx Xxxx, X.X. 00000, Attention: Reorganization Department, or to such
other address as a party hereto shall notify the other parties.
18) This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to conflict of laws
rules or principles, and shall inure to the benefit of and be binding upon the
successors and assigns of the parties hereto; provided that this Agreement may
not be assigned by any party without the prior written consent of all other
parties.
19) No provision of this Agreement may be amended, modified or waived,
except in a written document signed by both parties.
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,
MILACRON INC.
By:
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Name:
Title:
Accepted as of the date Address for notices:
above first written:
Milacron Inc.
MELLON BANK, N.A. 0000 Xxxxxxxx Xxxxxx
AS SUBSCRIPTION AGENT Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
By: Facsimile: (000) 000-0000
---------------------- Attention: Xxxx X. X'Xxxxxxx
Name:
Title: With a copy to:
Cravath, Swaine & Xxxxx LLP
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Esq.
Exhibit 1 Prospectus
Exhibit 2 Form of Subscription Certificate
Exhibit 3 Fee Schedule
Exhibit 4 Authorized Officers
