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Exhibit 99.4
FORM OF
RIGHTS AGENT AGREEMENT
THIS AGREEMENT (the "Agreement"), dated ________, 1999, is by and
between HEALTHY PLANET PRODUCTS, INC., a Delaware corporation (the "Company"),
and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New York corporation (the "Rights
Agent").
W I T N E S S E T H:
WHEREAS, the Company intends to issue, at no cost, to holders of
shares of its common stock, $.01 par value per share (the "Common Stock"), and
holders of shares of its Series D Convertible Preferred Stock (collectively, the
"Shareholders"), rights (the "Rights") to purchase shares of its Common Stock
(the "Shares"), at $[ ] per Share, and upon the terms and conditions contained
in the Registration Statement, as defined herein; and
WHEREAS, the Company has filed with the Securities and Exchange
Commission (the "Commission") a Registration Statement on Form S-3 (the
"Registration Statement") with respect to the offering of the Shares issuable
upon exercise of the Rights; and
WHEREAS, the Company desires the Rights Agent to act on behalf of
the Company, and the Rights Agent is willing to so act in connection with the
issuance of certificates representing the Rights and the issuance of the Shares
upon exercise of Rights, all in accordance with the terms and conditions hereof.
NOW, THEREFORE, in consideration of the premises and mutual promises
made herein, the parties hereto agree as follows:
1. Definitions. As used herein, the following terms shall have the
following meanings, unless the context shall otherwise require:
(a) "Basic Subscription Rights" shall mean the Rights
distributed to Registered Holders (as hereinafter defined) in respect of each
issued and outstanding Share.
(b) "Corporate Office" shall mean the principal place of
business of the Rights Agent (or its successor).
(c) "Exercise Date" shall mean the date a Rights Certificate
is duly surrendered for exercise.
(d) "Expiration Date" shall mean on February __, 1999, unless
extended to a later date as provided in Section 5 of this Agreement, in which
case the Expiration Date shall mean such later date.
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(e) "Offering" shall mean the offer of the Shares pursuant to
the Prospectus (as hereinafter defined).
(f) "President's Letter" shall mean the letter from the
President of the Company to Registered Holders to be sent with the Prospectus to
such holders.
(g) "Oversubscription Right" shall mean the Right, granted to
each Registered Holder of Basic Subscription Rights who exercises such Rights in
full, to purchase Shares which are not subscribed for in the Offering by other
Registered Holders, as permitted by Section 4(b) hereof.
(h) "Prospectus" shall mean the prospectus dated __________,
1999 and distributed to the Company's stockholders with respect to the Offering.
(i) "Registered Holder" shall mean the person in whose name
any Rights Certificate shall be registered on the books maintained by the Rights
Agent.
(j) "Rights Certificate" shall mean a certificate evidencing
the Rights.
(k) "Rights Record Date" shall mean such date as the Company
shall advise the Rights Agent in writing prior to the Registration Statement
being declared effective.
(l) "Subscription Period" shall mean the period from the
commencement of the Offering until 5:00 p.m., New York time, on the Expiration
Date.
2. Issuance of Rights Certificates.
(a) Upon a written order of the Company, the Rights Agent
shall mail or deliver Rights Certificates, prospectuses and the President's
Letter to holders of record of the Company's common stock and its Series D
Convertible Preferred Stock, on the Rights Record Date.
(b) The Rights Agent shall keep at its Corporate Office books
in which it shall register the Rights Certificates. All Rights Certificates
surrendered to the Rights Agent shall be promptly canceled by the Rights Agent
(with notice to the Company) and thereafter retained by the Rights Agent for one
year, delivered to the Company or destroyed by the Rights Agent, as directed by
the Company. The Company shall at all times supply the Rights Agent with a
sufficient number of Rights Certificates, Prospectuses and President's Letter
for purposes contemplated by this Agreement.
(c) Where requests are properly made by registered holders
(such as banks or brokers) that hold the Shares as nominees for beneficial
owners, the Rights Agent, upon presentation of satisfactory evidence, shall
deliver Rights Certificates issued in the names of such
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Registered Holders in denominations identical to those of that would have been
issued if such beneficial owners had been holders of record on the Record Date.
3. Form and Execution of Rights Certificates. The Rights
Certificates shall be substantially in the form attached hereto as Exhibit A
(the provisions of which are hereby incorporated herein). The Rights
Certificates shall be dated as of the date of issuance thereof (whether upon
initial issuance or issuance in replacement of mutilated, lost, stolen or
destroyed Rights Certificates). The Rights Certificates shall be numbered
serially with the letter "R" on the Rights Certificates of all denominations.
4. Procedures for Exercise of Rights.
(a) A Basic Subscription Right may be exercised during the
subscription period by completing and signing the former on the back of the
Rights Certificate and delivering it, together with payment in full of the
purchase price for all the Shares subscribed for (the "Basic Subscription
Amount"), to the Rights Agent before the Expiration Date. Payment of the Basic
Subscription Amount must be made in United States dollars by check, subject to
collection, bank check or money order, payable to the order of "Healthy Planet
Products, Inc." Payment may be effected through wire transfer in accordance with
wire instructions given by the Rights Agent to the Company prior to the
effective date of the Registration Statement. If payment is submitted by a
Registered Holder in an amount less than that required to purchase the number of
Shares subscribed for, the Rights Agent shall issue only the number of whole
Shares for which payment is received and shall issue a new Rights Certificate
for the balance of the Rights issued to such holder to the extent there is time
to do so prior to the Expiration Date.
(b) Any Registered Holder who exercises his Basic Subscription
Rights in full may also exercise Oversubscription Rights during the Subscription
Period for a number of additional shares not to exceed one time the number of
Shares purchased under the Basic Subscription Rights. Exercise of the
Oversubscription Rights shall be effected by completing the appropriate portion
of the form of the reverse side of the Rights Certificate simultaneously with
completion of the form in respect of the exercise of the Basic Subscription
Rights. In the event the Registered Holder initially exercises less than the
maximum number of Oversubscription Rights which it may seek to exercise, and
subsequently desires to exercise additional Oversubscription Rights prior to the
end of the Subscription Period, it may do so by mailing a notice to the Rights
Agent to that effect, which notice must be received by the Rights Agent before
the end of the Subscription Period. Payment for the purchase of all Shares
subscribed for pursuant to Oversubscription Rights (the "Oversubscribed Amount")
shall be made in United States dollars, by separate check, subject to
collection, bank check or money order in the Oversubscription amount, made
payable to the order of "American Stock Transfer & Trust Co. - Rights Agent".
Payment may be effected through wire transfer in accordance with wire
instructions given by the Rights Agent to the Company prior to the effective
date of the Registration Statement.
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(c) The Rights Agent shall issue certificates representing the
Shares purchased pursuant to exercise of Basic Subscription Rights as soon as
practicable after receipt by the Rights Agent of a duly completed and signed
Rights Certificate and collection by the Company of the payment tendered
therewith. The Rights Agent shall issue certificates representing Shares
pursuant to the exercise of Oversubscription Rights (subject to the limitations
described in Section 7 hereof) as soon as practicable after the Expiration Date.
(d) All questions as to the validity, form, eligibility
(including times of receipt and matters pertaining to beneficial ownership) and
the acceptance of subscriptions and the payment of Subscription Payments will be
determined by the Company, whose determinations will be final and binding. No
alternative, conditional or contingent subscriptions will be accepted. The
Company reserves the absolute right to reject any or all subscriptions not
properly or timely submitted with the exception of acceptance of which would, in
the opinion of the Company's counsel, be unlawful. The Company also reserves the
right to waive any irregularities or conditions, and the Company's
interpretations of the terms and conditions of the Offering shall be final and
binding. Any irregularities in connection with subscriptions must be cured
within such time as the Company shall determine, unless waived. Subscriptions
will not be deemed to have been made until such irregularities had been cured or
waived. The Rights Agent shall promptly notify the Company of any irregularities
in any subscriptions received by the Rights Agent. Rights Certificates received
by the Rights Agent that are not properly submitted and as to which the
irregularities have not been cured or waived shall be returned by the Rights
Agent to the appropriate holder of the Rights, to the extent there is sufficient
time to do so prior to the Expiration Date; and funds submitted with such Rights
Certificates shall be returned without interest by the Rights Agent to such
holder.
(e) The Company and the Rights Agent may deem and treat the
Registered Holder of any Rights Certificate as the absolute owner thereof and
each Right represented thereby for all purposes (notwithstanding any notations
of ownership or writing thereon made by anyone other than the Company or the
Rights Agent) and shall not be affected by any notice to the contrary.
(f) No fractional Rights or Shares may be issued in connection
with the Offering.
(g) The Rights Agent will deliver to a holder of Rights who
subscribes pursuant to Basic Subscription Rights for fewer than all Shares
represented by his Rights Certificate a new Rights Certificate representing the
balance of the unsubscribed Basic Subscription Rights, to the extent there is
time to do so prior to the Expiration Date. If such a holder of Rights later
exercises his Rights prior to the Expiration Date for the balance of the
unsubscribed Basic Subscription Rights, he may at such times seek to exercise
the associated Oversubscription Rights.
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5. Extension of Expiration Date. The Company in its sole discretion
may extend the Expiration Date of the Subscription Period for up to an
additional 30 days by giving notice of such extension to the Rights Agent at any
time prior to 5:30 p.m., New York time, on the existing Expiration Date and
issuing a press release to that effect by no later than 10:00 a.m.
on the following business day.
6. Transmission of Funds to Company.
(a) The Rights Agent shall deliver all amounts received in
respect of exercise of Basic Subscription Rights to the Company within two
business days of receipt their Right.
(b) The Rights Agent shall deposit on a daily basis all funds
received and collected in respect of the exercise of Oversubscription Rights
into an escrow account pending the Expiration Date, at which time the number of
Shares available to fill oversubscriptions will be determined in accordance with
Section 7 hereof. The funds will be returned to subscribers or paid to the
Company as described in the Prospectus.
7. Determination of Shares Available for Oversubscriptions. The
Rights Agent shall compute, upon the termination of the Offering, the number of
Shares subscribed for pursuant to all Basic Subscription Rights, compute at the
same time the number of Shares available pursuant to Oversubscription Rights and
compute the number of Shares to be subscribed for by each subscriber exercising
his Oversubscription Rights, as follows:
(a) If the number of Shares subscribed for pursuant to
Oversubscription Rights exceeds the number of Shares available for purchase by
subscribers exercising their Oversubscription Rights, the Rights Agent shall
allot the Shares available to be purchased by subscribers exercising their
Oversubscription Rights pro rata in proportion to the number of Shares
subscribed for pursuant to all Oversubscription Rights.
(b) If the number of Shares available to be purchased by
subscribers exercising their Oversubscription Rights is equal to or exceeds the
number of Shares subscribed for pursuant to Oversubscription Rights, the Rights
Agent shall allot to each subscriber the number of shares for which he or she
subscribed to pursuant to his or her Oversubscription Rights.
8. Loss or Mutilation. Upon receipt by the Company and the Rights
Agent of evidence satisfactory to them of due ownership of any lost, stolen,
destroyed or mutilated Rights Certificate and (in the case of loss, theft or
destruction) of indemnity satisfactory to them, and (in the case of mutilation)
upon surrender and cancellation of the mutilated Rights Certificate, the Rights
Agent shall deliver in lieu thereof a new Rights Certificate representing an
equal aggregate number of Rights, to the extent there is time to do so prior to
the Expiration Date. Applicants for
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a substitute Rights Certificate shall also comply with such other reasonable
regulations and pay such reasonable charges as the Rights Agent may prescribe.
9. Liabilities of the Rights Agent. The Rights Agent shall not, by
issuing and delivering Rights Certificates or by any other Act hereunder, be
deemed to make any representations as to the validity or value or authorization
of the Rights Certificates or the Rights represented thereby or of the Shares
delivered upon exercise of any Rights or whether the Shares are fully paid or
nonassessable. The Rights Agent shall not (a) be liable for any recital or
statement of facts contained herein or for any action taken, suffered or omitted
by it in reliance on any Rights Certificate or other document or instrument
believed by it in good faith to be genuine and to have been signed or presented
by the proper party or parties, (b) be responsible for any failure on the part
of the Company to comply with any of its covenants and obligations contained in
this Agreement or in the Rights Certificates, or (c) be liable for any act or
omission in connection with this Agreement except for its own negligence or
willful misconduct.
10. Indemnification. The Company agrees to indemnify the Rights
Agent and save it harmless from and against any and all liabilities for anything
done or omitted by the Rights Agent in the execution of its duties hereunder
except liabilities arising as a result of the Rights Agent's negligence or
willful misconduct.
11. Legal Counsel. The Rights Agent may consult with the legal
counsel (who may be legal counsel for the Company), and the opinion of such
counsel shall be full and complete authorization and protection to the Rights
Agent as to any action taken or omitted by it in accordance with its opinion.
12. Compensation for Services. The Company agrees to pay the Rights
Agent for its services hereunder and reimburse it for its reasonable expenses
hereunder, all in accordance with the fee schedule attached as Exhibit B hereto
and made a part hereof by this reference.
13. Modification of Agreement. This Agreement may not be modified,
in whole or in part, except by a writing executed by the parties hereto. Should
any provision or portion of this Agreement be held unenforceable or unlawful,
the remaining provisions of this Agreement shall remain in full force and
effect.
14. Entire Agreement. This Agreement sets forth the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior and contemporaneous agreements and understandings relative to such subject
matter.
15. Notices. All notices and other communications required or
permitted under this Agreement shall be deemed to have been duly given and made
if in writing and (i) if served by personal delivery to the party for whom
intended, (ii) if sent to such party by certified or registered mail, return
receipt requested, bearing the address shown in this Agreement for such
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party, (iii) sent to such party at such a address by nationally recognized
overnight delivery service, with delivery confirmed or (iv) sent by telex or
telecopy to such party:
If to the Company:
Healthy Planet Products, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
With a copy to:
Camhy Xxxxxxxxx & Xxxxx LLP
0000 Xxxxxxxx, 00xx Xx.
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
If to the Rights Agent:
American Stock Transfer & Trust Co.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Compliance Department
16. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
17. Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the Company and the Rights Agent, for their respective
successors and permitted assigns, and the holders of the Rights Certificates so
or any of them. This Agreement may not be assigned (by operation of law or
otherwise) by the Rights Agent without the prior written consent of the Company.
Any assignment hereof in violation of the terms hereof of shall be void and of
no force and effect. 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.
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IN WITNESS WHEREOF, the parties hereof have caused this Agreement to
be duly executed as of the date and year first above written.
HEALTHY PLANET PRODUCTS, INC.
By:_________________________________
Authorized Officer
AMERICAN STOCK TRANSFER &
TRUST COMPANY, as Rights Agent
By:_________________________________
Authorized Officer
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Exhibit A
FORM OF RIGHTS CERTIFICATE
(Front Side of Certificate)
HEALTHY PLANET PRODUCTS, INC.
NONTRANSFERABLE RIGHTS TO PURCHASE SHARES
OF COMMON STOCK
R-_________ Number of Rights:________
This Rights Certificate certifies that the registered holder named
above is the owner of the number of Rights indicated above and is entitled,
subject to acceptance by Healthy Planet Products, Inc., a Delaware corporation
(the "Company"), and proration in the event of oversubscription as described in
the Prospectus delivered herewith (the "Prospectus"), to subscribe for one share
of Common Stock, $.01 par value per share, of the Company (the "Share") for each
Right evidenced by this Rights Certificate at $[ .00] per Share (the "Basic
Subscription Right") and to subscribe for one time the number of Shares
evidenced by this Rights Certificate at $[ . ] per Share (the "Oversubscription
Right"), if the registered holder hereof has subscribed for all of the Shares to
which he is entitled to subscribe under the Basic Subscription Rights.
THE RIGHTS EVIDENCED BY THIS CERTIFICATE EXPIRE AT 5:00 P.M., NEW
YORK TIME, ON FEBRUARY __, 1999 unless extended (the "Expiration Date"). The
holder hereof may subscribe in accordance herewith for any and all of the Shares
to which this Rights Certificate entitles him to subscribe.
Subscriptions pursuant hereto are subject to the terms and
conditions set forth in the Prospectus. Subscription payments pursuant to the
exercise of Basic Subscription Rights shall be made either by check, subject to
collection, bank check or money order to the order of "Healthy Planet Products,
Inc." Subscription payments pursuant to the exercise of Oversubscription Rights
shall be made either by check, bank draft or money order to the account of
"American Stock Transfer & Trust Co. - Rights Agent." Payment may be effected
through wire transfer in accordance with wire instructions given by the Rights
Agent to the Company prior to the effective date of the Registration Statement.
The subscription form on the reverse side hereof must be properly completed and
executed and this Rights Certificate must be surrendered, along with the
applicable subscription payment, to American Stock Transfer & Trust Company (the
"Rights Agent") prior to the Expiration Date.
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The Rights Certificates and the right to subscribe to Shares may not
be transferred or assigned. The Rights Certificate, when surrendered at the
office of the Rights Agent by the registered holder hereof in person or by
attorney duly authorized in writing, may be exchanged for Rights Certificates of
different denominations of like tenor and representing in the aggregate the
number of Rights indicated above.
Instructions for completing this Rights Certificate and subscribing
for Shares are included with the Prospectus and other materials delivered
herewith.
HEALTHY PLANET PRODUCTS, INC.
By:________________________________
Authorized Officer
AMERICAN STOCK TRANSFER
& TRUST COMPANY, as Rights Agent
By:_________________________________
Authorized Officer
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(Reverse Side of Certificate)
TO: Healthy Planet Products
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
The undersigned acknowledges receipt of the Prospectus, dated
_______, 1999 relating to the shares of Common Stock issuable upon
exercise of Rights (the "Shares"). Any Certificates for the Shares
issued in connection with this subscription should be issued in the
name set forth on the face hereof and delivered to the address
stated below.
TO SUBSCRIBE FOR SHARES: Upon the terms and conditions set forth
herein and in the Prospectus, I hereby irrevocably subscribe for
Shares as set forth below and herewith tender Subscription Payments
as calculated below. I understand that my subscription is subject to
acceptance by the Company.
I. A. Number of Shares _____________
subscribed for pursuant to
Basic Subscription Rights
(NOTE: You may subscribe
for any number of Shares
equal to or less than the
number of Rights evidenced
by this Certificate. You may
not subscribe under this Item
I(A) for a number of Shares
greater than the number of
such Rights.)
B. Subscription Price $[ ] per share
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C. Payment for Shares (A x B)
pursuant to Basic (A check, subject to
Subscription Rights collection, bank check
or money order for this amount
should be made payable to the
order of "Healthy Planet
Products, Inc." Payment may be
effected through wire transfer in
accordance with wire instructions
given by the Rights Agent to the
Company prior to the effective
date of the Registration
Statement.)
II.D. Number of Shares subscribed _____________
for pursuant to Oversubscription
Rights. (NOTE: You may
subscribe under this Item II(D)
for any number of Shares equal
to or less than one time the
number of Rights represented by
this Certificate provided you
have subscribed under Item I(A)
for the maximum number of
Shares you are entitled to
subscribe to thereunder.
E. Subscription Price $[ ] per share
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F. Payment for Shares pursuant (D x E) ______________
to Oversubscription Rights (A check, subject to
collection, bank check or money
order for this amount should be
made payable to "America Stock
Transfer & Trust Company - Rights
Agent". Payment may be effected
through wire transfer in
accordance with wire instructions
given by the Rights Agent to the
Company prior to the effective
date of the Registration
Statement.)
Signature(s)_________________________________
_________________________________
(if jointly owned, both must sign)
(NOTE: The above signature(s) must
correspond with the name(s) written upon the
face of this Rights Certificate in every
particular without alteration.)
Social Security or Other
Tax Identification Number___________________
Address_____________________________________
_____________________________________
Area Code____________ Tel No.______________
Dated________________________ , 1999
THIS SUBSCRIPTION IS IRREVOCABLE AND SUBJECT TO
ACCEPTANCE BY THE COMPANY. PAYMENT IN FULL MUST
ACCOMPANY SUBSCRIPTION.
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Exhibit B
SCHEDULE OF FEES
Issuance of Rights and Processing of Rights received .... $10,000.
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