EXHIBIT 99.6
SUBSCRIPTION AGENT
AGREEMENT dated _______,
2001 between MEDIS
TECHNOLOGIES LTD., a
Delaware corporation,
with offices at 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (the
"Company") and AMERICAN
STOCK TRANSFER & TRUST
COMPANY, a New York
limited purpose trust
company, with offices at
00 Xxxxxx Xxxx, Xxx Xxxx,
Xxx Xxxx 00000, as
subscription agent (the
"Agent").
The Company is making an offer to issue (the "Offering") to the holders
of record (the "Stockholders") of its outstanding shares of common stock, par
value $0.01 per share (the "Common Stock"), the right to subscribe for and
purchase newly issued shares of Common Stock (the "Rights"), as described in and
upon such terms as are set forth in the prospectus (the "Prospectus") included
in the Registration Statement on Form S-1 filed by the Company with the
Securities and Exchange Commission, as amended by any amendment filed with
respect thereto (the "Registration Statement"), a final copy of which has been
or, upon availability will promptly be, delivered to the Agent; and
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 Offering,
all upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto agree as follows:
1. APPOINTMENT OF SUBSCRIPTION AGENT. The Company hereby appoints the Agent to
act as subscription agent in connection with the Offering in accordance with the
terms set forth in this Agreement and the Agent hereby accepts such appointment.
2. FORM AND EXECUTION OF SUBSCRIPTION CERTIFICATES. The certificates or other
evidences of subscription rights, in the form designated by the Company (the
"Subscription Certificates"), shall be irrevocable and non-transferable. The
Agent shall, in its capacity as Transfer Agent of the Company, maintain a
register of Subscription Certificates and the holders of record thereof
(each of whom shall be deemed a "Stockholder" hereunder for purposes of
determining the rights of holders of Subscription Certificates). Each
Subscription Certificate shall, subject to the provisions thereof, entitle the
Stockholder in whose name it is recorded to subscribe during the subscription
period set forth in the Prospectus, upon payment of the subscription price set
forth in the Prospectus, (i) for shares of Common Stock at the rate of one share
of Common Stock for each whole Right evidenced by the Subscription Certificate
(the "Basic Subscription Privilege") and (ii) for additional shares of Common
Stock, subject to the availability of such shares and to the allotment of such
shares as may be available on the basis specified in the Prospectus; provided,
however, that such Stockholder has exercised its Basic Subscription Privilege in
full (the "Oversubscription Privilege").
3. RIGHTS AND ISSUANCE OF SUBSCRIPTION CERTIFICATES.
3.1 Each Subscription Certificate shall evidence the Rights of the
Stockholder therein named to purchase Common Stock upon the terms and conditions
therein and herein set forth.
3.2 Upon the written advice of the Company, signed by any of its duly
authorized officers, as to the record date for determining Stockholders entitled
to participate in the Offering (the "Record Date"), the Agent shall, from a list
of the 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 Stockholders, setting forth the number of
Rights to subscribe for the Common Stock calculated on the basis of a ratio to
be set forth in the Prospectus and provided to the Agent by the Company for such
purpose. The number of Rights that are issued to Stockholders will be rounded
upwards or downwards, as appropriate, by the Agent, to the nearest number of
whole Rights, as fractional Rights will not be issued. Each Subscription
Certificate shall be dated as of the Record Date and shall be executed manually
by or by facsimile signature of a duly authorized officer of the Agent.
3.3 Upon the written advice, signed as aforesaid, as to the effective date
of the Registration Statement, the Agent shall promptly countersign and deliver,
or cause to be delivered, (i) by first class mail, the Subscription
Certificates, together with a copy of the Prospectus, instruction letter and any
other document as the Company deems necessary or appropriate (collectively, the
"Offering Documents"), to all Stockholders with record addresses in the United
States (including its territories and possessions and the District of Columbia)
and Canada; provided, however, that the Agent shall not deliver the Offering
Documents to any Stockholder upon notice to the Agent that such Stockholder has
a record address in a jurisdiction in the United States (including its
territories and possessions and the District of Columbia) or Canada where the
offering is or would be unlawful (the "Other Jurisdictions"), (ii) by first
class mail, a copy of the Prospectus, instruction letter and any other document
as the Company deems necessary or appropriate, but not Subscription Certificate
(collectively, the "Alternate Documents"), to all Stockholders with record
addresses in Other Jurisdictions ("Other Continental Stockholders") and (iii) by
air mail, a copy of the Alternate Documents to Stockholders whose record
addresses are outside the United States (including its territories and
possessions and the District of Columbia) and Canada (collectively with the
Other Continental Stockholders, "Other Stockholders"). The Agent will hold
Subscription Certificates for the account of any Other Stockholder, subject to
such Other Stockholder making satisfactory arrangements with the Agent for the
exercise of the Rights evidenced thereby, and follow the instructions of such
Other Stockholder for the exercise of such Rights if such instructions are
received by the Expiration Date (as hereinafter defined).
4. EXERCISE.
4.1 Stockholders may acquire shares of Common Stock under their Basic
Subscription and Oversubscription Privileges by delivering to the Agent as
specified in the Prospectus (i) the Subscription Certificate with respect
thereto, duly executed by such Stockholder in accordance with and as provided by
the terms and conditions of the Subscription Certificate, together with (ii) the
purchase price as disclosed in the Prospectus for each share of Common Stock
subscribed for by exercise of such Basic Subscription and Oversubscription
Privileges, in U.S. dollars by wire transfer of immediately available funds or
by money order or check drawn on a bank in the United States, in each case
payable to the order of the Agent, as Subscription Agent.
4.2 Rights may be exercised at any time after the date of issuance of the
Subscription Certificates with respect thereto but no later than 5:00 P.M. New
York time on such date as the Company shall designate to the Agent in writing
(the "Expiration Date"). For the purpose of determining the time of the exercise
of any Rights, delivery of any material to the Agent shall be
deemed to occur when such materials are received by the Agent as specified in
the Prospectus.
4.3 Notwithstanding the provisions of Section 4.1 and 4.2 regarding
delivery of an executed Subscription Certificate to the Agent prior to 5:00 P.M.
New York time on the Expiration Date, if prior to such time the Agent receives
(i) a Notice of Guaranteed Delivery by facsimile or otherwise from a bank, a
trust company or a New York Stock Exchange member guaranteeing delivery of a
properly completed and executed Subscription Certificate and (ii) full payment
for the Common Stock, then such exercise of Basic Subscription and
Oversubscription Privileges shall be regarded as timely, subject, however, to
receipt by the Agent of the duly executed Subscription Certificate within three
Business Days (as defined below) after the Expiration Date. For the purposes of
the Prospectus and this Agreement, "Business Day" shall mean any day on which
trading is conducted on the New York Stock Exchange.
4.4 Any excess payment to be refunded by the Company to a Stockholder will
be mailed by the Agent as soon as practicable after the Expiration Date. The
Agent will not issue or deliver certificates for shares of Common Stock
subscribed for until payment in full therefore has been received, including
collection of checks and payment pursuant to notices of guaranteed delivery.
5. VALIDITY OF SUBSCRIPTIONS. Irregular subscriptions not otherwise covered
by specific instructions herein shall be submitted to an appropriate officer of
the Company and handled in accordance with his instructions. Such instructions
will be documented by the Agent indicating the instructing officer and the date
thereof.
6. OVERSUBSCRIPTION. If, after allocation of shares of Common Stock to
Stockholders, there remain unexercised Rights, then the Agent shall allot the
shares issuable upon exercise of such unexercised Rights (the "Remaining
Shares") to stockholders who have exercised all of their Basic Subscription
Privilege and who have exercised an Oversubscription Privilege. Shares
subscribed for pursuant to the Oversubscription Privilege will be allocated in
the amounts of such oversubscriptions if remaining sufficient shares are
available. If the number of shares for which the Oversubscription Privilege has
been exercised is greater than the Remaining Shares, the Agent shall allocate
the Remaining Shares to Stockholders exercising Oversubscription Privileges
based on the number of shares of Common Stock purchased by each of them pursuant
to the Basic Subscription Privilege. The percentage of Remaining Shares each
over-subscribing Stockholder may acquire will be rounded upwards or downwards,
as appropriate, to result in delivery of whole shares of Common Stock. The Agent
shall advise the Company immediately upon the completion of the allocation set
forth above as to the total number of shares subscribed and distributable.
7. DELIVERY OF CERTIFICATES. The Agent will deliver (i) certificates
representing those shares of Common Stock validly purchased pursuant to exercise
of Basic Subscription Privileges as soon as practicable after the Expiration
Date and (ii) certificates representing those shares of Common Stock validly
purchased pursuant to the exercise of the Oversubscription Privilege as soon as
practicable after the Expiration Date and after all allocations under the Basic
Subscription Privileges have been effected.
8. HOLDING PROCEEDS OF RIGHTS OFFERING IN ESCROW.
8.1 All proceeds received by the Agent from Stockholders in respect of the
exercise of Rights shall be held by the Agent, on behalf of the Company, in a
segregated account (the "Account"). No interest shall accrue to the Company or
Stockholders on funds held in the Account pending disbursement in the manner
described in Sections 4.4 and 8.2 hereof.
8.2 The Agent shall distribute to the Company the funds held in the Account
as promptly as practicable, but in no event later than ten business days after
the Expiration Date.
9. REPORTS. The Agent shall advise by facsimile transmission Xxxxxx
Xxxxxxxx, the President of the Company (at the facsimile number 212-935-9216),
the Company's legal counsel and such other person or persons as the Company may
request, daily up to and including the Expiration Date, regarding Rights
exercised, the total number of shares of Common Stock subscribed for, and
payments received therefor, bringing forward the figures from the previous day's
report in each case so as to show the cumulative totals and any such other
information as may be mutually determined by the Company and the Agent.
10. LOSS OR MUTILATION. If any Subscription Certificate is lost, stolen,
mutilated or destroyed, the Agent may, on such terms which will indemnify and
protect the Company and the Agent as the
Agent may in its discretion impose (which shall, in the case of a mutilated
Subscription Certificate, include the surrender and cancellation thereof), issue
a new Subscription Certificate of like denomination in substitution for the
Subscription Certificate so lost, stolen, mutilated or destroyed.
11. COMPENSATION FOR SERVICES. The Company agrees to pay to the Agent
compensation for its services as such in accordance with its Fee Schedule to act
as Agent, set forth hereto as Exhibit A. The Company further agrees that it will
reimburse the Agent for its reasonable out-of-pocket expenses incurred in the
performance of its duties as such.
12. INSTRUCTIONS AND INDEMNIFICATION. The Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and conditions:
(a) The Agent shall be entitled to rely upon any instructions or
directions furnished to it by an appropriate officer of the Company,
whether in conformity with the provisions of this Agreement or
constituting a modification hereof or a supplement hereto. Without
limiting the generality of the foregoing or any other provision of
this Agreement, the Agent, in connection with its duties hereunder,
shall not be under any duty or obligation to inquire into the
validity or invalidity or authority or lack thereof of any
instruction or direction from an officer of the Company which
conforms to the applicable requirements of this Agreement and which
the Agent reasonably believes to be genuine and shall not be liable
for any delays, errors or loss of data occurring by reason of
circumstances beyond the Agent's control.
(b) The Agent shall be liable hereunder only for its own negligence or
willful misconduct or any actions taken in bad faith. The Company
agrees to indemnify the Agent and save it harmless against any and
all liabilities, including judgments, costs and reasonable counsel
fees, for anything done or omitted by the Agent in the execution of
this Agreement except as a result of the Agent's negligence, willful
misconduct or bad faith.
13. CHANGES IN SUBSCRIPTION CERTIFICATE. The Agent may, without the consent or
concurrence of the
Stockholders 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
Stockholders.
14. MISCELLANEOUS PROVISIONS.
14.1 ASSIGNMENT, DELEGATION. Neither this Agreement nor any rights or
obligations hereunder may be assigned or delegated by either party without the
written consent of the other party.
14.2 SUCCESSORS. 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. The Agent may, without further consent on the
part of the Company, subcontract with subcontractors for systems, processing,
and telephone and mailing services as may be required from time to time;
provided, however, that the Agent shall be as fully responsible to the Company
for the acts and omissions of any subcontractor as it is for its own acts and
omissions.
14.3 NOTICES. Any notice, statement or demand authorized by this Agreement
to be given or made by the Agent or by the Company shall be sufficiently given
or made if sent by certified mail, or private courier service, postage prepaid,
addressed (until another address is filed in writing by either the Company or
the Agent), as follows:
If to the Company:
Medis Technologies Ltd.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxx, President
With a copy to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx X. Xxxxxxx, Esq.
If to the Agent:
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Compliance Department
14.4 APPLICABLE LAW. The validity, interpretation and performance of this
Agreement shall be governed in all respects by the laws of the State of New
York, without giving effect to conflict of laws.
14.5 THIRD PARTY BENEFICIARIES. This Agreement does not constitute an
agreement for a partnership or joint venture between the Agent and the Company.
Neither Party shall make any commitments with third parties that are binding on
the other party without the other party's prior written consent.
14.6 CONSEQUENTIAL DAMAGES. Neither party to this Agreement shall be liable
to the other party for any consequential, indirect, special or incidental
damages under any provisions of this Agreement or for any consequential,
indirect, special or incidental damages arising out of any act or failure to act
hereunder even if that party has been advised of or has foreseen the possibility
of such damages.
14.7 SEVERABILITY. If any provision of this Agreement shall be held
invalid, unlawful, or unenforceable, the validity, legality, and enforceability
of the remaining provisions shall not in any way be affected or impaired.
14.8 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.
14.9 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.
14.10 TERM. This agreement shall remain in effect until either party gives
to the other 30 days' written notice to such effect. Upon termination of the
Agreement, the Agent shall retain all canceled Certificates and related
documentation as required by applicable law.
14.11 MERGER OF AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto and supersedes any prior agreement with respect to
the subject matter hereof whether oral or written.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective officers, hereunto dully authorized, as of the day and year
first above written.
MEDIS TECHNOLOGIES LTD.
By: _______________________________
Name:
Title:
AMERICAN STOCK TRANSFER
AND TRUST COMPANY
By: _________________________________
Name:
Title:
EXHIBIT A
FEE SCHEDULE
A-1
