SUBSCRIPTION AGENT AGREEMENT
Exhibit 4.2
(Subscription
Agent - FINAL)
This
Subscription Agent Agreement (the
“Agreement”) is made as of October 2, 2007 between Keystone
Consolidated Industries, Inc., a Delaware corporation (the “Company”),
Computershare Inc., a Delaware corporation and its fully owned subsidiary
Computershare Trust Company, N.A., a national banking (collectively, the “Agent”
or individually
“Computershare” and the “Trust Company”, respectively). All
terms not defined herein shall have the meaning given in the prospectus (the
“Prospectus”) included in the Registration Statement on Form S-3, File No.
333-146454, filed by the Company with the U.S. Securities and Exchange
Commission on October 2, 2007, as amended by any amendment filed with respect
thereto (the “Registration Statement”), or in the Instructions as to Use of
Subscription Rights Certificates appearing as an exhibit thereto (the
“Instructions”).
WHEREAS,
the Company proposes
to make a subscription rights offer by issuing certificates or other evidences
of subscription rights, in the form designated by the Company (the “Subscription
Rights Certificates”) to stockholders of record (the “Stockholders”) of its
common stock, par value $0.01 per share (“Common Stock”), as of a record date
specified by the Company (the “Record Date”), pursuant to which each Stockholder
will have certain rights (the “Subscription Rights”) to subscribe for shares of
Common Stock, as described in and upon such terms as are set forth in the
Prospectus, a final copy of which has been or, upon availability will promptly
be, delivered to the Agent; and
WHEREAS,
the Company wishes
the Agent to perform certain acts on behalf of the Company, and the Agent is
willing to so act, in connection with the distribution of the Subscription
Rights Certificates and the issuance and exercise of the Subscription Rights
to
subscribe therein set forth, all upon the terms and conditions set forth
herein.
NOW,
THEREFORE, in
consideration of the foregoing and of the mutual agreements set forth herein,
the parties agree as follows:
1.
Appointment.
The
Company hereby appoints the Agent
to act as subscription agent in connection with the distribution of Subscription
Rights Certificates and the issuance and exercise of the Subscription Rights
in
accordance with the terms set forth in this Agreement, and the Agent hereby
accepts such appointment.
2.
Form and Execution
of
Subscription Rights Certificates.
A. Each
Subscription Rights
Certificate shall be non-transferable. The Agent shall, in its
capacity as Transfer Agent of the Company, maintain a register of Subscription
Rights 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 Rights Certificates). Each Subscription
Rights Certificate shall, subject to the provisions thereof, entitle the
Stockholder in whose name it is recorded to the following:
(1) With
respect to Record Date Stockholders only, the right to acquire prior to the
Expiration Date (as hereinafter defined), at the Subscription Price, a number
of
shares of Common Stock equal to one share of Common Stock for every one
Subscription Right (the “Basic Subscription Right”); and
(2) With
respect to Record Date Stockholders only, the right to subscribe for additional
shares of Common Stock, subject to the availability of such shares and to the
allotment of such shares as may be available among Record Date Stockholders
who
exercise Oversubscription Rights on the basis specified in the Prospectus;
provided, however, that such Record Date Stockholder has exercised all Basic
Subscription Rights issued to him or her (the “Oversubscription
Right”).
3.
Subscription Rights
and Issuance of Subscription Rights Certificates.
A. Each
Subscription Rights
Certificate shall evidence the Subscription Rights of the Stockholder therein
named to purchase Common Stock upon the terms and conditions therein and herein
set forth.
B. Upon
the written advice
of the Company, signed by any of its duly authorized officers, as to the Record
Date, the Agent shall, from a list of the Company 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 Rights Certificates in the names of
the
Stockholders, setting forth the number of Subscription Rights to subscribe
for
the Common Stock calculated on the basis of 0.25 of a Subscription Right for
each one share of Common Stock recorded on the books in the name of each such
Stockholder as of the Record Date. The number of Subscription Rights
that are issued to Record Date Stockholders will be rounded by the Agent, to
the
nearest whole number (as fractional Subscription Rights will not be issued),
and
with such adjustments as the
Company may determine in its sole discretion as are necessary to ensure that
the
Company offers 2,500,000 shares of Common Stock pursuant to the Subscription
Rights. In the unlikely event that, because of the rounding of
fractional Subscription Rights, the Subscription Rights offering would have
been
subscribed in an amount in excess of 2,500,000 shares of Common Stock, all
holders’ Subscription Rights will be reduced in an equitable manner as the
Company may determine in its sole discretion. Each
Subscription Rights Certificate shall be dated as of the Record Date and shall
be executed manually or by facsimile signature of a duly authorized officer
of
the Company. Upon the written advice, signed as aforesaid, as to the
effective date of the Registration Statement, the Agent shall promptly deliver
the Subscription Rights Certificates, together with a copy of the Prospectus,
the Instructions and any other document as the Company deems necessary or
appropriate, to all Stockholders with record addresses in the United States
(including its territories and possessions and the District of
Columbia). Delivery shall be by first class mail (without
registration or insurance), except for those Stockholders having a registered
address outside the United States (who will only receive copies of the
Prospectus, the Instructions and other documents as the Company deems necessary
or appropriate, if any). Delivery shall be by air mail (without
registration or insurance) and by first class mail (without registration or
insurance) to those Stockholders having APO or FPO addresses. No
Subscription Rights Certificate shall be valid for any purpose unless so
executed.
C. The
Agent will mail a
copy of the Prospectus, the Instructions, a special notice and other documents
as the Company deems necessary or appropriate, if any, but not Subscription
Rights Certificates to Record Date Stockholders whose record addresses are
outside the United States (including its territories and possessions and the
District of Columbia) (“Foreign Record Date Stockholders”). The
Subscription Rights to which such Subscription Rights Certificates relate will
be held by the Agent for such Foreign Record Date Stockholders’ accounts until
instructions are received to exercise the Subscription Rights.
4.
Exercise.
A. Record
Date Stockholders
may acquire shares of Common Stock pursuant to the Basic Subscription Right
and
pursuant to the Oversubscription Right by delivery to the Agent as specified
in
the Prospectus of (i) the Subscription Rights Certificate with respect thereto,
duly executed by such Stockholder in accordance with and as provided by the
terms and conditions of the Subscription Rights Certificate and the
Instructions, together with (ii) the Subscription Price for each share of Common
Stock subscribed for by exercise of such Subscription Rights, in U.S. dollars
by
money order or check drawn on a bank in the United States, in each case payable
to the order of Computershare, or by wire transfer of funds as specified in
the
Prospectus and the Instructions.
B. Subscription
Rights may
be exercised at any time after the date of issuance of the Subscription Rights
Certificates with respect thereto but no later than 5:00 P.M., Eastern 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 Subscription Rights, delivery of any material to the Agent
shall
be deemed to occur when such materials are received at the Stockholder Services
Division of the Agent specified in the Prospectus and the
Instructions.
C. Notwithstanding
the
provisions of Section 4 (A) and 4 (B) regarding delivery of an executed
Subscription Rights Certificate to the Agent prior to 5:00 P.M., Eastern Time,
on the Expiration Date, if prior to such time the Agent receives (i) payment
of
the full Subscription Price for the shares of Common Stock subscribed for
pursuant to the Basic Subscription Right and any additional shares of Common
Stock subscribed for pursuant to the Oversubscription Right in the manner
described in the Prospectus and the Instructions; and (ii) a Notice of
Guaranteed Delivery by facsimile (telecopy) or as otherwise described in the
Prospectus and the Instructions from a bank, a trust company or a New York
Stock
Exchange member guaranteeing delivery of a properly completed and executed
Subscription Rights Certificate, then such exercise of Basic Subscription Rights
and Oversubscription Rights shall be regarded as timely, subject, however,
to
receipt of the duly executed Subscription Rights Certificate by the Agent within
three Business Days 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.
D. As
soon as practicable
after the Expiration Date and after all allocations have been effected,
Computershare shall send to each exercising stockholder (or, if shares of Common
Stock on the Record Date are held by Cede & Co. or any other depository or
nominee, to Cede & Co. or such other depository or nominee) a confirmation
showing the number of shares of Common Stock acquired pursuant to the Basic
Subscription Right, and, if applicable, the Oversubscription Right, the per
share and total Subscription Price for such shares, and any excess to be
refunded by the Company to such stockholder in the form of a check and stub,
along with a letter explaining the allocation of shares of Common Stock pursuant
to the Oversubscription Right.
E. Any
excess payment to be
refunded by the Company to a stockholder will be mailed by Computershare within
ten Business Days after the Expiration Date. Computershare will not
issue or deliver certificates or Statements of Holding for shares subscribed
for
until payment in full therefor 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 or her
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 Record Date Stockholders, there remain unexercised Subscription
Rights, then the Agent shall allot the shares issuable upon exercise of such
unexercised Subscription Rights (the “Remaining Shares”) to stockholders who
have exercised all the Basic Subscription Rights initially issued to them and
who wish to acquire more than the number of shares for which the Basic
Subscription Rights issued to them are exercisable. Shares subscribed
for pursuant to the Oversubscription Right will be allocated in the amounts
of
such over-subscriptions. If the number of shares for which the
Oversubscription Right has been exercised is greater than the Remaining Shares,
the Agent shall allocate the Remaining Shares to Record Date Stockholders
exercising their Oversubscription Right pro rata
based on the number of
shares each Subscription Rights holder subscribed for under the Basic
Subscription Right. “Pro
rata” means in proportion to
the number of
shares of Common Stock that a Subscription Rights holder and the other
Subscription Rights holders purchased by fully exercising their Basic
Subscription Rights with respect to their Common Stock holdings. The
percentage of Remaining Shares each over-subscribing Record Date Stockholder
or
other Subscription Rights holder may acquire will be rounded up or down to
result in delivery of whole shares of Common Stock and if necessary, equitably
adjusted so that in no event are more than 2,500,000 shares of Common Stock
issued upon the exercise of Subscription Rights. 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
Shares.
The
Agent will deliver certificates or
a Statement of
Holding reflecting new shares of Common Stock in the Direct Registration System
representing those shares of Common Stock purchased pursuant to the
exercise of Basic Subscription Rights and any exercise of an Oversubscription
Right, as applicable, as soon as practicable after the Expiration Date and
after
all allocations have been effected.
8.
Holding Proceeds
of
Subscription Rights Offering.
A. All
proceeds received by
Computershare from Stockholders in respect of the exercise of Subscription
Rights shall be held by Computershare, 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 Section 4(E) above.
B. Computershare
shall
deliver all proceeds received in respect of the exercise of Subscription Rights
to the Company as promptly as practicable, but in no event later than ten
business days after the Expiration Date.
C. The
Company acknowledges that the bank accounts maintained by Computershare in
connection with the services provided under this Agreement will be in its name
and that Computershare may receive investment earnings in connection with the
investment at Computershare’s risk and for its benefit of funds held in those
accounts from time to time.
9.
Reports.
Daily,
during the period commencing on
__________, until termination of the Subscription Period, the Agent will report
by telephone or telecopier, confirmed by letter, to an Officer of the Company,
data regarding Subscription 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 Rights 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 Rights
Certificate include the surrender and cancellation thereof), issue a new
Subscription Rights Certificate of like denomination in substitution for the
Subscription Rights Certificate so lost, stolen, mutilated or
destroyed.
11.
Compensation for
Services.
The
Company agrees to pay to the Agent
compensation for its services hereunder in accordance with its Fee Schedule
to
act as Agent attached 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,
Indemnification and Limitation of Liability.
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
Company will
indemnify the Agent and its nominees against, and hold it harmless from, all
liability and expense which may arise out of or in connection with the services
described in this Agreement or the instructions or directions furnished to
the
Agent relating to this Agreement by an appropriate officer of the Company,
except for any liability or expense which shall arise out of the gross
negligence, bad faith or willful misconduct of the Agent or such
nominees.
Promptly
after the receipt by the Agent of notice of any demand or claim or the
commencement of any action, suit, proceeding or investigation, the Agent shall,
if a claim in respect thereof is to be made against the Company, notify the
Company thereof in writing. The Company shall be entitled to
participate as its own expense in the defense of any such claim or proceeding,
and, if it so elects at any time after receipt of such notice, it may assume
the
defense of any suit brought to enforce any such claim or of any other legal
action or proceeding. For the purposes of this Section 12, the term “expense or
loss” means any amount paid or payable to satisfy any claim, demand, action,
suit or proceeding settled with the express written consent of the Agent, and
all reasonable costs and expenses, including, but not limited to, reasonable
counsel fees and disbursements, paid or incurred in investigating or defending
against any such claim, demand, action, suit, proceeding or
investigation.
C. The
Agent shall be
responsible for and shall indemnify and hold the Company harmless from and
against any and all losses, damages, costs, charges, counsel fees, payments,
expenses and liability arising out of or attributable to Agent’s refusal or
failure to comply with the terms of this Agreement, or which arise out of
Agent’s negligence or willful misconduct or which arise out of the breach of any
representation or warranty of Agent hereunder, for which Agent is not
entitled to indemnification under this Agreement; provided, however, that
Agent’s aggregate liability during any term of this Agreement with respect to,
arising from, or arising in
connection with this Agreement, or from all
services provided or omitted to be provided under this Agreement, whether in
contract, or in tort, or otherwise, is limited to, and shall not exceed, the
amounts paid hereunder by the Company to Agent as fees and charges, but not
including reimbursable expenses, during the twelve (12) calendar months
immediately preceding the event for which recovery from the Agent is being
sought.
13.
Changes in
Subscription Rights Certificate.
The
Agent may, without the consent or
concurrence of the Stockholders in whose names Subscription Rights Certificates
are registered, by supplemental agreement or otherwise, concur with
the Company in making any changes or corrections in a Subscription
Rights 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 Rights Certificate except insofar as any such
change may confer additional rights upon the Stockholders.
14.
Assignment/Delegation.
A. Except
as provided in
Section 14(B) below, 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.
B. The
Agent may, without further consent on the part of the Company, subcontract
with
other subcontractors for systems, processing, telephone and mailing services,
and post-exchange activities, 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.
C. Except
as explicitly stated elsewhere in this Agreement, nothing under this Agreement
shall be construed to give any rights or benefits in this Agreement to anyone
other than the Agent and the Company and the duties and responsibilities
undertaken pursuant to this Agreement shall be for the sole and exclusive
benefit of the Agent and the Company.
15.
Governing
Law.
The
validity, interpretation and
performance of this Agreement shall be governed by the law of the Commonwealth
of Massachusetts and shall inure to the benefit of and the obligations created
hereby shall be binding upon the successors and permitted assigns of the parties
hereto.
16.
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.
17.
Force
Majeure.
In
the event either party is unable to
perform its obligations under the terms of this Agreement because of acts of
God, strikes, terrorist acts, equipment or transmission failure or damage
reasonably beyond its control, or other cause reasonably beyond its control,
such party shall not be liable for damages to the other for any damages
resulting from such failure to perform or otherwise from such
causes. Performance under this Agreement shall resume when the
affected party or parties are able to perform substantially that party’s
duties.
18.
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, penal, 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.
19.
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.
20.
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.
21.
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.
22.
Confidentiality.
The
Agent
and the Company agree that all books, records, information and data pertaining
to the business of the other party which are exchanged or received pursuant
to
the negotiation or the carrying out of this Agreement, including the fees for
services set forth in the attached schedule shall remain confidential, and
shall
not be voluntarily disclosed to any other person, except as may be required
by
law.
23.
Term and
Termination.
This
Agreement shall remain in effect until the earlier of (a) thirty (30)
days after
the Expiration Date; (b) it is terminated by either party upon a material breach
of this Agreement which remains uncured for 30 days after written notice of
such
breach has been provided; or (c) 30 days’ written notice has been
provided by either party to the other. Upon termination of the
Agreement, the Agent shall retain all canceled Certificates and related
documentation as required by applicable law.
24.
Notices.
Until
further notice in writing by
either party hereto to the other party, all written reports, notices and other
communications between the Exchange Agent and the Company required or
permitted hereunder shall be delivered or mailed by first class mail,
postage prepaid, telecopier or
overnight
courier guaranteeing next day delivery, addressed as
follows:
If
to the Company, to:
Keystone
Consolidated Industries, Inc.
Three
Lincoln Centre
0000
XXX Xxxxxxx, Xxxxx
0000
Xxxxxx,
Xxxxx 00000-0000
Attn: General
Counsel
If
to the Agent, to:
Computershare
Trust Company, N.A.
c/o
Computershare Shareholder Services,
Inc.
000
Xxxxxx Xxxxxx
Xxxxxx,
XX 00000
Attn: Reorganization
Department
25.
Survival.
The
provisions of Paragraphs 12, 15,
17-19, 22, and 24-26 shall survive any termination, for any reason, of this
Agreement.
26.
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 hereto have caused this Agreement to be executed
by
their respective officers, hereunto duly authorized, as of the day and year
first above written.
COMPUTERSHARE
TRUST COMPANY,
NA.
KEYSTONE CONSOLIDATED
INDUSTRIES, INC.
By: /s/Xxxxxx
Xxxxxxx
By: /s/J. Xxxx
Xxxxxxxxxxxxx
Date: 10-2-07
Date:
10-2-07
Title: Director
Corporate
Actions
Title: Acting
General
Counsel
COMPUTERSHARE
INC.
By: /s/Xxxxxx
Xxxxxxx
Date: 10-2-07
Title: Director,
Corporate
Actions
