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EXHIBIT 99.9: FORM OF SUBSCRIPTION AGENT AGREEMENT
SUBSCRIPTION AGENT AGREEMENT
DATE: DECEMBER , 2000
Computershare Trust Company of New York
00 Xxxx Xxxxxx -- 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Reorganization Department
Gentlemen:
United States Lime & Minerals, Inc., a Texas corporation (the "Company") is
making an offer to issue (the "Rights Offering") to the holders of record of its
outstanding shares of Common Stock, par value $0.10 per share (the "Common
Stock"), at the close of business on December 26, 2000 (the "Record Date"),
except in the case of shares held through the Company's 401(k) plan, in which
case the offering shall instead be made to the beneficial owners of Common Stock
held through the Company's 401(k) plan, the right to subscribe for and purchase
(each a "Right") shares of Common Stock (the "Additional Common Stock") at a
purchase price of $5.50 per share of Additional Common Stock (the "Subscription
Price"), payable by uncertified or certified check, bank draft (cashier's check)
or wire transfer of immediately available funds, 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 Rights
Offering, and the term "Subscription" shall mean any such submission. The Rights
Offering will expire at 5:00 p.m. New York City Time, on February 5, 2001 (the
"Expiration Time"), unless the Company shall have extended the period of time
for which the Rights Offering is open, in which event the term "Expiration Time"
shall mean the latest time and date at which the Rights Offering, as so extended
by the Company from time to time, shall expire.
The Company has filed a Registration Statement (No. 333-49118) relating to
the Rights and Additional Common Stock (as amended from time to time, the
"Registration Statement") with the Securities and Exchange Commission under the
Securities Act of 1933, as amended. Said Registration Statement was declared
effective on December [ ], 2000. The terms of the Additional Common Stock are
more fully described in the Prospectus forming part of the Registration
Statement as it was declared effective. Copies of the Prospectus, the
Instructions for Use of United States Lime & Minerals, Inc. Subscription
Certificates (the "Instructions"), the Notice of Guaranteed Delivery, the Letter
to Shareholders, the Letter to Brokers, the Letter to Clients of Nominee
Holders, the Beneficial Owner Election Form and the Nominee Holder Certification
are annexed hereto as Exhibits 1 through 8, respectively. All terms used and not
defined herein shall have the same meaning as in the Prospectus. Promptly after
the Record Date, the Company will provide you, if necessary, with a list of
holders of Common Stock as of the Record Date and the beneficial owners of
shares held through the Company's 401(k) plan (the "Record Stockholders List").
The Rights are evidenced by subscription certificates (individually a
"Subscription Certificate," and collectively, the "Subscription Certificates"),
a copy of the form of which is annexed hereto as Exhibit 9. The Subscription
Certificates entitle the holders to subscribe, upon payment of the Subscription
Price, for shares of Additional Common Stock at the rate of one (1) share for
each Right evidenced by a Subscription Certificate (the "Basic Subscription
Privilege"). Brokers, dealers or other nominees holding Common Stock on the
Record Date for more than one beneficial owner may (after making a proper
showing, such as delivery of a completed Nominee Holder Certification, to the
Subscription Agent) exercise the number of Rights to which all such beneficial
owners in the aggregate otherwise would have been entitled if they had been
direct record holders of such Common Stock on the Record Date. The Rights
Offering includes an over-subscription privilege entitling the holder of a
Subscription Certificate, if
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said holder fully exercises its Basic Subscription Privilege, to Subscribe for
and pay the Subscription Price for additional shares of Additional Common Stock
(the "Over-Subscription Privilege"). Reference is made to the Prospectus under
"About the Rights Offering -- Basic Subscription Privilege" and "-- Over-
Subscription Privilege" for a complete description of the Basic Subscription
Privilege and the Over-Subscription Privilege.
The Company hereby appoints you as Subscription Agent (the "Subscription
Agent") for the Rights Offering and agrees with you as follows:
1) As Subscription Agent, you are authorized and directed to:
(A) Issue the Subscription Certificates in accordance with this
Agreement in the names of the holders of the Common Stock of record on the
Record Date, except in the case of shares held through the Company's 401(k)
plan, in which case the Subscription Certificates shall be issued in the
names of the beneficial owners of the shares held through the Company's
401(k) plan, keep such records as are necessary for the purpose of
recording such issuance, and furnish a copy of such records to the Company.
You shall indicate the address of and the number of Rights issued to each
such holder on the face of the Subscription Certificate and affix such
other identifying information as you deem necessary to identify each
particular stockholder upon return of the executed Subscription
Certificates. The Subscription 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 receive the Record Stockholders List:
(a) Mail or cause to be mailed, by first class mail, to each holder
of the Common Stock of record on the Record Date, except in the case of
shares held through the Company's 401(k) plan, in which case the mailing
shall be to the beneficial owners of the shares held through the
Company's 401(k) plan, whose address of record is within the United
States, (i) a Subscription Certificate evidencing the Rights to which
such stockholder is entitled under the Rights Offering, (ii) a copy of
the Prospectus, (iii) the Instructions, (iv) a Notice of Guaranteed
Delivery and (v) a Letter to Shareholders;
(b) Mail or cause to be mailed, by first class mail, to the Company
on behalf of each holder of the Common Stock of record on the Record
Date, except in the case of shares held through the Company's 401(k)
plan, in which case the mailing shall be to the beneficial owners of the
shares held through the Company's 401(k) plan, whose address of record
is within Canada, (i) a Subscription Certificate evidencing the Rights
to which such stockholder is entitled under the Rights Offering, (ii) a
copy of the Prospectus, (iii) the Instructions, (iv) a Notice of
Guaranteed Delivery and (v) a Letter to Shareholders; and
(c) Mail or cause to be mailed, by air mail, to each holder of the
Common Stock of record on the Record Date, except in the case of shares
held through the Company's 401(k) plan, in which case the mailing shall
be to the beneficial owners of the shares held through the Company's
401(k) plan, 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,
(ii) a Notice of Guaranteed Delivery and (iii) a notice containing
contact information for the Subscription Agent. You shall refrain from
mailing Subscription Certificates issuable to any holder on the Record
Stockholders List whose address of record is outside the United States
and Canada, or is an A.P.O. or F.P.O. address, and hold such
Subscription Certificates for the account of such stockholder subject to
such stockholder making satisfactory arrangements with the Subscription
Agent for the exercise or other disposition of the Rights evidenced
thereby, and follow the instructions of such stockholder for the
exercise, sale or other disposition of such Rights if such instructions
are received at or before 5:00 p.m., New York City Time, on February 5,
2001.
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(C) Mail or deliver a copy of the Prospectus with certificates for
shares of Additional Common Stock when such certificates are issued to
persons other than the registered holder of the Subscription Certificate.
(D) Accept Subscriptions upon the due exercise (including payment of
the Subscription Price and delivery of any required certification of
nominee) on or prior to the Expiration Time of Rights in accordance with
the terms of the Subscription Certificates, the Instructions and the
Prospectus.
(E) Subject to the next sentence, accept Subscriptions from
stockholders whose Subscription Certificates are alleged to have been lost,
stolen or destroyed upon receipt by you of an affidavit of theft, loss or
destruction and a bond of indemnity in form and substance satisfactory to
you, accompanied by payment of the Subscription Price for the total number
of shares of Additional Common Stock Subscribed for. Upon receipt of such
affidavit and bond of indemnity and compliance with any other applicable
requirements, stop orders shall be placed on said Subscription Certificates
and you shall withhold delivery of the shares of Additional Common Stock
Subscribed for until after the Subscription Certificates have expired and
it has been determined that the Rights evidenced by the Subscription
Certificates have not otherwise been purported to have been exercised or
otherwise surrendered.
(F) 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 Subscription Certificate is registered in the name of a
fiduciary and is executed by and the Additional Common Stock is to be
issued in the name of such fiduciary;
(b) if the Subscription Certificate is registered 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 Subscription Certificate is registered in the name of a
corporation and is executed by a person in a manner which appears or
purports to be done in the capacity of an officer, or agent thereof,
provided the Additional Common Stock is to be issued in the name of such
corporation; or
(d) if the Subscription Certificate is registered in the name of an
individual and is executed by a person purporting to act as such
individual's executor, administrator or personal representative,
provided 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.
(G) Accept Subscriptions not accompanied by Subscription Certificates
if submitted on behalf a holder of Subscription Certificates 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 together with the Notice of Guaranteed Delivery
and accompanied by proper payment for the total number of shares of
Additional Common Stock Subscribed for by such holder; provided that such
firm complies with the guaranteed delivery procedures set forth in the
Prospectus under the heading "About the Rights Offering -- Guaranteed
Delivery Procedures."
(H) 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 Subscription Certificates.
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(I) 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 but after the
determination as to the identity of persons to receive and the number of
shares of Additional Common Stock to be issued pursuant to the Over-
Subscription Privilege, you shall distribute to the Company the funds in
such account and issue certificates for shares of Additional Common
Stock issuable with respect to Subscriptions which have been accepted.
(b) advise the Company daily by telecopy and confirm by letter to
the attention of Xxxxx X. Ohms (the "Company Representative"), as to the
total number of shares of Additional Common Stock Subscribed for
pursuant to the Basic Subscription Privilege, the total number of shares
of Additional Common Stock Subscribed for pursuant to the
Over-Subscription Privilege and the amount of funds received, with
cumulative totals for each; and, in addition, advise the Company
Representative, by telephone at (000) 000-0000, confirmed by 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 of Additional Common Stock Subscribed
for pursuant to the Basic Subscription Privilege, the number of shares
of Additional Common Stock Subscribed for pursuant to the
Over-Subscription Privilege, the number of Subscription guarantees
received and the number of shares of Additional Common Stock
unsubscribed for.
(J) Upon completion of the Rights Offering, you shall requisition
certificates from the Transfer Agent for the Common Stock for shares of
Additional Common Stock Subscribed for.
(K) If a stockholder exercised his Over-Subscription Privilege and is
allocated less than all of the additional shares of Additional Common Stock
for which he Subscribed, you shall take such action as reasonably requested
by the Company to return the excess funds such stockholder paid for
additional shares of Additional Common Stock not allocated to him, without
interest or deduction.
2) You will follow your regular procedures to attempt to reconcile any
discrepancies between the number of shares of Additional Common Stock that any
Subscription 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 Subscription Certificates received by you as
Subscription Agent to ascertain whether they appear to you to have been
completed and executed in accordance with the Prospectus and the applicable
Instructions. In the event you determine that any Subscription Certificate does
not appear to you to have been properly completed or executed, or where the
Subscription Certificates do not appear to you to be in proper form for
Subscription, or you identify 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 Subscription
Certificate which was delivered, duly dated and signed by an authorized officer
of the Company, indicating that any irregularity in such Subscription
Certificate has been cured or waived and that such Subscription 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 non-receipt or nondelivery
of Subscription Certificates or by registered mail insured separately for the
value of such Subscription Certificates) to such stockholder's address as set
forth in the Subscription any Subscription Certificates
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surrendered in connection therewith and any other documents received with such
Subscription Certificates, and a letter of notice to be furnished by the Company
explaining the reasons for the return of the Subscription 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 issued pursuant to the Rights Offering. Subject to the terms and
conditions of this Agreement, you will request the Transfer Agent for the Common
Stock to issue certificates evidencing 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 endeavor, and be solely responsible, to 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 the
Subscription Certificates 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) Except as set forth in the Prospectus, the Company shall from time
to time endeavor, and be solely responsible, to 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 Subscription Certificates or
Additional Common Stock issued upon exercise of Subscription Certificates.
6) If certificates representing shares of Additional Common Stock are to be
delivered by you to a person other than the person in whose name a surrendered
Subscription Certificate is registered, you will issue no certificate for
Additional Common Stock until the Subscription Certificate so surrendered has
been properly endorsed and the person requesting such exchange has paid any
transfer or other taxes or governmental charges required by reason of the
issuance of a certificate for Additional Common Stock in a name other than that
of the registered holder of the Subscription Certificate surrendered, or has
established to your satisfaction that any such tax or charge either has been
paid or is not payable.
7) Should any issue arise regarding federal income tax reporting or
withholding, you will take such action as the Company instructs you in writing.
8) 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 Subscription Certificate or other document relating to
your duties hereunder that you may receive after your appointment has so
terminated. Sections 9, 11, and 12 of this Agreement shall survive any
termination of this Agreement.
9) As agent for the Company hereunder you:
(A) shall have no duties or obligations other than those specifically
set forth herein or as may subsequently be agreed to in writing by you and
the Company;
(B) shall 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;
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(C) shall be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value, or genuineness of
any Subscription Certificates surrendered to you hereunder or shares of
Additional Common Stock issued in exchange therefor, and will not be
required to or be responsible for and will make no representations as to,
the validity, sufficiency, value or genuineness of the Rights Offering;
(D) shall not take any legal action hereunder without the prior
written approval of the Company; 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
in good faith or failing in good faith 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 Rights Offering, 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) subject to advance approval by the Company, 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 and you shall not be liable or responsible for any
misconduct or negligence on the part of any agent 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.
10) In the event any question or dispute arises with respect to the proper
interpretation of the Rights Offering or your duties hereunder or the rights of
the Company or of any stockholders surrendering Subscription Certificates
pursuant to the Rights Offering, you shall not be required to act and shall not
be held liable or responsible for your refusal to act until the question or
dispute has been judicially settled (and, if appropriate, you may file a suit in
interpleader or for a declaratory judgment for such purpose) by final judgment
rendered by a court of competent jurisdiction, binding on all parties interested
in the matter which is no longer subject to review or appeal, or settled by a
written document 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.
11) 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 unless received prior to such act or failure to
act.
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12) Whether or not any Subscription Certificates are surrendered to you,
for your services as Subscription Agent hereunder, the Company shall pay to you
compensation in accordance with Exhibit A attached hereto, together with
reimbursement for out-of-pocket expenses, including reasonable fees and
disbursements of counsel (subject to advance approval by the Company) subject to
the receipt of reasonably satisfactory documentation thereof and in accordance
with Exhibit A.
13) The Company covenants to indemnify and hold you and your officers,
directors, employees, agents, contractors, subsidiaries and affiliates harmless
from and against any loss, liability, damage or expense (including without
limitation any loss, liability, damage or expense incurred for accepting
Subscription Certificates tendered without a signature guarantee, if required,
and the fees and expenses of counsel, subject to advance approval by the
Company) incurred (a) without gross negligence or bad faith or (b) as a result
of your acting or failing to act upon the Company's instructions, arising out of
or in connection with the Rights Offering, this Agreement or the administration
of your duties hereunder, including without limitation the costs and expenses of
defending and appealing against any action, proceeding, suit or claim in the
premises. In no case shall the Company be liable under this indemnity with
respect to any action, proceeding, suit or claim against you unless the Company
shall be notified by you, by letter or by telex or facsimile transmission
confirmed by letter, of the written assertion of any action, proceeding, suit or
claim made or commenced against you promptly after you shall have been served
with the summons or other first legal process or have received the first written
assertion giving information as to the nature and basis of the action,
proceeding, suit or claim, but failure so to notify the Company shall not
release the Company of any liability which it may otherwise have on account of
this Agreement. The Company shall be entitled to participate at its own expense
in the defense of any such action, proceeding, suit or claim. You agree not to
settle any claim or litigation in connection with any such claim or liability
with respect to which you may seek indemnification from the Company without the
prior written consent of the Company.
14) 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.
15) 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 Rights Offering and the
execution, delivery and performance of all transactions contemplated thereby
(including without limitation this Agreement) have been duly authorized by all
necessary corporate action and will not result in a breach of or constitute a
default under the 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 Rights
Offering 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 Rights Offering.
16) In the event that any claim of inconsistency between this Agreement and
the terms of the Rights Offering arise, as they may from time to time be
amended, the terms of the Rights Offering 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.
17) Set forth in Exhibit B 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.
18) 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 Computershare Trust Company of New York, 00 Xxxx Xxxxxx,
19(th) Floor,
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New York, New York 10005, Attention: Reorganization Department, or to such other
address as a party hereto shall notify the other parties.
19) 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.
20) 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,
UNITED STATES LIME & MINERALS, INC.
By:
----------------------------------
Name: Xxxxx X. Ohms
Title: Vice President of Finance,
Secretary and Corporate
Controller
Address for notices:
United States Lime & Minerals,
Inc.
00000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Accepted as of the date
above first written:
COMPUTERSHARE TRUST COMPANY OF NEW YORK,
AS SUBSCRIPTION AGENT
By:
-----------------------------------------------------
Name:
Title:
