EXHIBIT 99.1
SUBSCRIPTION AND INFORMATION AGENCY AGREEMENT
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First Chicago Trust Company of New York
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Dear Sir/Madam:
This letter sets forth the terms and conditions pursuant to which First
Chicago Trust Company of New York, a New York corporation, agrees to act as
subscription and information agent (the "Subscription and Information Agent") in
connection with an offering (the "Rights Offering") by Air & Water Technologies
Corporation, a Delaware corporation (the "Company"), to its stockholders of
rights (the "Rights") to acquire shares of its Class A Common Stock, par value
$.001 per share (the "Class A Common Stock"), subject to the Company's
obligation to issue shares of its Class B Common Stock, par value $.001 per
share (the "Class B Common Stock" and together with the Class A Common Stock,
the "Common Stock") in certain circumstances.
Section 1. The Rights Offering. The Rights Offering will be conducted in the
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manner and upon the terms set forth in the final prospectus (the "Prospectus")
constituting a part of the Company's Registration Statement on Form S-1 (No.
333-39115) (as amended from time to time, the "Registration Statement") relating
to the Rights Offering (as hereinafter defined) filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the "Act").
The Subscription and Information Agent acknowledges receipt of copies of the
Registration Statement and all pre-effective amendments thereto. The
Registration Statement became effective on the date of this Agreement. A copy
of the Prospectus meeting the applicable requirements of Section 10 under the
Act will be delivered to the Subscription and Information Agent as promptly as
practicable following the effective date of the Registration Statement (the
"Effective Date").
Section 2. Appointment of Subscription and Information Agent. The
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Subscription and Information Agent is hereby appointed as subscription and
information agent to effect the Rights Offering in accordance with the
Prospectus and the Subscription and Information Agent hereby accepts such
appointment. The Subscription and Information Agent presently service as
transfer agent (the "Transfer Agent") and registrar (the "Registrar") of the
Class A Common Stock and will serve as Transfer Agent and Registrar for the
Rights. Each reference to the Subscription and Information Agent in this
Agreement is to the Subscription and Information Agent in its capacity as
subscription and information agent unless the context indicates otherwise.
Section 3. Mailing of Rights Offering Materials.
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(a) The Subscription and Information Agent shall mail or cause to be mailed,
as soon as possible after the Effective Date, via first-class mail to each
holder of record (a "Recordholder") of Class A Common Stock as of January 29,
1998 (the "Record Date") whose address of record is within the continental
United States and is not an APO or FPO address, (i) a certificate representing
Rights (a "Rights Certificate") dated as of the date of issuance thereof by the
Subscription and Information Agent evidencing the Rights to which such
Recordholder is entitled, (ii) a copy of the Prospectus, (iii) a letter of
transmittal, (iv) instructions for use and exercise of the Rights Certificates
in the form attached as an exhibit to the Registration Statement and (v) a
return envelope addressed to the Subscription and Information Agent.
(b) The Subscription and Information Agent shall mail or cause to be mailed
via air-mail or courier to Recordholders whose addresses are outside the United
States or who have an APO or FPO address a transmittal letter from the Company
addressed to such Recordholders and a Prospectus. The Subscription and
Information Agent shall not mail Rights Certificates to such Recordholders but
shall hold the Rights Certificates for the accounts of such holders.
(c) The Subscription and Information Agent shall make reasonable efforts to
identify which of the Recordholders are likely to be nominee holders and include
a separate transmittal letter for Recordholders who are nominees with such
Recordholders' mailings. The Subscription and Information Agent shall make
copies of a separate transmittal letter addressed to beneficial holders
available upon request.
(d) Prior to mailing, the Subscription and Information Agent, as Transfer
Agent and Registrar for the Rights, will cause to be issued Rights Certificates
in the names of the Recordholders and for the number of Rights to which they are
each entitled, as determined in accordance with Section 3(e). The Subscription
and Information Agent shall either manually sign or affix a duly authorized
facsimile signature on all Rights Certificates. Subsequent to their original
issuance, no Rights Certificates shall be issued except Rights Certificates
issued upon any division or combination pursuant to Section 4(a) below, issued
upon partial exercise of a Rights Certificate pursuant to Section 4(d) below or
issued in replacement of a mutilated, destroyed, lost or stolen Rights
Certificate pursuant to Section 4(h) below.
(e) On or about the Record Date, the Subscription Agent shall create and
maintain from the stock ledger and register it maintains in its capacities as
Transfer Agent and Registrar of the Class A Common Stock a record of the names,
addresses and, where available, taxpayer identification numbers of the
Recordholders and the number of Rights each such Recordholder is entitled to
receive in the Rights Offering (the "Rights Record"). The Rights Record shall
also include the number of the Rights Certificate, the number of Rights
evidenced on the face of the Rights Certificate and the date of the Rights
Certificate issued to each Recordholder. The Recordholders shall be established
as of the close of business on the Record Date.
Section 4. Duties of the Subscription and Information Agent.
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(a) The Subscription and Information Agent is authorized and directed to
effect divisions and combinations of Rights Certificates at the request of the
holders thereof, in the manner and subject to the terms and conditions set forth
in the Rights Certificate and the Prospectus; provided that a Rights Certificate
may not be divided in such a manner as would permit the Rights holder to
subscribe for a greater number of Underlying Shares than the number for which
such Rights holder would be entitled to subscribe under the original Rights
Certificate.
(b) The Subscription and Information Agent is authorized and directed to
accept subscriptions upon the exercise of Rights in accordance with the terms of
the Rights Certificates and the Prospectus, up to 5:00 p.m., New York City time,
on the Expiration Date (except as such earlier time may be set forth in the
Prospectus), provided that the Subscription Agent receives, in the manner and
subject to the terms and conditions set forth in the Prospectus:
(i) payment in an amount equal to the Subscription Price multiplied by
the total number of shares of Class A Common Stock ("Underlying
Shares") subscribed for pursuant to the Basic Subscription
Privilege and the Oversubscription Privilege; provided that if the
aggregate Subscription Price paid by an exercising Rights holder
is insufficient to purchase the number of Underlying Shares that
the Rights holder indicates are being subscribed for, or if an
exercising Rights holder does not specify the number of Underlying
Shares to be purchased, then the Rights holder will be deemed to
have exercised the Basic Subscription Privilege (as defined in the
Prospectus) to the full extent of the payment tendered; provided
further, that if the aggregate Subscription Price paid by an
exercising Rights holder exceeds the amount necessary to purchase
the number of Underlying Shares for which the Rights holder has
indicated an intention to subscribe, then the Rights holder will
be deemed to have exercised the Oversubscription Privilege (as
defined in the Prospectus) to the full extent of the excess
payment tendered, for such number of shares determined in
accordance with the terms of the Prospectus, and any remaining
amount will be returned to such Rights holder as provided in
Section 4(f)(iv) below and in the manner and subject to the terms
and conditions set forth in the Prospectus;
(ii) either (x) the properly completed and executed Rights Certificate
or Rights Certificates evidencing the Rights being exercised with
any signatures required to be guaranteed so guaranteed, or (y) if
the Guaranteed Delivery Procedures (as defined in the Prospectus)
are being followed, a duly completed guarantee notice ("Notice of
Guaranteed Delivery") in substantially the form provided with the
instructions as to use of the Rights Certificates attached as an
exhibit to the Registration Statement; and
(iii) to the extent applicable, (x) proper evidence of authority of the
person executing the Rights Certificate, unless, for good cause,
the Subscription and Information Agent dispenses with proof of
authority, if a person signs the Rights Certificate
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in a representative or other fiduciary capacity or the Rights
Certificate is executed by a person other than the holder named on
the face of the Rights Certificate, and (y) a signature guarantee
by an Eligible Institution (as defined in the Prospectus) unless a
Rights Certificate provides that the Underlying Shares are to be
delivered to the Recordholder of such Rights, or is submitted for
the account of an Eligible Institution; provided that in the
instances set forth in clauses (A), (B), (C) and (D) below, the
Subscription and Information Agent may accept subscriptions
satisfying the requirements of paragraphs (i) and (ii) of this
Section 4(b) without further authorization from the Company,
without procuring supporting legal papers or other proof of
authority to sign (including proof of appointment of a fiduciary
or other person acting in a representative capacity), and without
signatures of fiduciaries, if:
(A) the Rights Certificate is registered in the name of a
fiduciary, the Rights Certificate is executed by such
fiduciary, and the Underlying Shares are to be issued in the
name of the registered owner of the Rights Certificate;
(B) the Rights Certificate is in the name of a corporation or a
partnership and the Rights Certificate is executed by an
officer or general partner thereof, and the Underlying Shares
are to be issued in the name of such corporation or
partnership;
(C) the Rights Certificate is registered in the name of a decedent
and the Rights Certificate is executed by a subscriber
purporting to act as the decedent's executor or administrator,
the Underlying Shares are to be registered in the name of the
subscriber as executor or administrator of the estate of the
deceased registered owner, and there is no evidence indicating
that the subscriber is not the duly authorized representative
that such subscriber purports to be; or
(D) the Rights Certificate is executed, as agent for the
subscriber, by an Eligible Institution, where the Rights
Certificate is registered in the name of the subscriber and
the Underlying Shares are to be issued in the name of the
registered owner of the Rights Certificate.
(c) In the case of Rights that are held of record through the
Depository Trust Company or the Philadelphia Depository Trust Company (each, a
"Book-Entry Transfer Facility"), exercises of the Basic Subscription Privilege
and Oversubscription Privilege may be effected by instructing the Book-Entry
Transfer Facility to transfer Rights from the Book-Entry Transfer Facility
account of such holder to the Book-Entry Transfer Facility account of the
Subscription and Information Agent, in the manner and subject to the terms and
conditions set forth in the Prospectus.
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(d) The Subscription and Information Agent is authorized and directed
to issue a new Rights Certificate to a Rights holder who subscribes for fewer
than all of the shares represented by its Rights Certificate(s), upon the terms
and conditions set forth in the Prospectus.
(e) The Subscription and Information Agent will refer to the Company
for specific instructions as to acceptance or rejection of subscriptions
received after the Expiration Date, subscriptions not authorized to be accepted
pursuant to this Section 4 and subscriptions otherwise failing to comply with
the requirements set forth in the Prospectus and the terms of the Rights
Certificate. All questions concerning the timeliness, validity, form and
eligibility of any exercise of Rights will be determined by the Company, whose
determination will be final and binding. The Company, in its sole discretion,
may waive any defect or irregularity, or permit a defect or irregularity to be
corrected within such time as it may determine. Rights Certificates will not be
deemed to have been received or accepted until all irregularities have been
waived or cured within such time as the Company determines, in its sole
discretion. Neither the Subscription and Information Agent nor the Company will
be under any duty to give notification of any defect or irregularity in
connection with the submission of Rights Certificates or incur any liability for
failure to give such notification. To the extent that any Rights Certificates
remain unexercised, outstanding or not transferred to the Subscription and
Information Agent's account at a Book-Entry Facility at 5:01 p.m., New York
time, on the Expiration Date (other than those subject to the Guaranteed
Delivery Procedures), such outstanding Rights Certificates shall be null and
void. The Company will not be obligated to honor any purported exercise of
Rights received by the Subscription and Information Agent or transfer of Rights
to the Subscription and Information Agent's account at a Book-Entry Facility
after the Expiration Date, regardless of when the documents relating to that
exercise were sent, except pursuant to the Guaranteed Delivery Procedures.
(f) As soon as possible following the Expiration Date, upon acceptance
of subscriptions, the Subscription and Information Agent shall:
(i) hold all funds received in payment for the Underlying Shares
subscribed for pursuant to the Basic Subscription Privilege and
Oversubscription Privilege in the account maintained by the
Subscription and Information Agent for purposes of accepting
subscriptions in the Rights Offering at First National Bank of
Chicago ABA No. 0000-0000-0, Account No. 93-00007 (the
"Subscription Account"), and three (3) days following the
Expiration Date, pay to the Company or to such other person as the
Company may direct, by wire transfer, certified or bank check or
other method acceptable to the Company, the amount of all funds in
the Subscription Account;
(ii) make available to the Company, upon the Company's request, the
following information: (A) the number of Underlying Shares validly
subscribed for; (B) the number of Underlying Shares subject to
guaranteed exercises; (C) the number of Underlying Shares for
which defective subscriptions have been
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received; and (D) the amounts of collected and uncollected funds
in the Subscription Account established under this Agreement;
(iii) as promptly as possible, but in any event on or before 5:00 p.m.,
New York City time, on the first full business day following the
Expiration Date, or upon the request from the Company from time to
time thereafter, certify in writing to the Company the cumulative
totals through the Expiration Date of all the information set
forth in (ii)(A) through (D) above; and
(iv) allocate Underlying Shares not required to satisfy Rights
exercised pursuant to the Basic Subscription Privilege to those
Recordholders who have subscribed for Excess Shares (as defined in
the Prospectus) pursuant to the Oversubscription Privilege in
accordance with the terms of and the procedures set forth in the
Prospectus, and as promptly as practicable after the Expiration
Date, and after all prorations and adjustments contemplated by the
terms of the Rights Offering have been effected, but in any event
no later than three (3) business days following the Expiration
Date, return by mail any excess payments received pursuant to the
exercise of the Oversubscription Privilege to subscribers.
(g) The Subscription and Information Agent shall, as promptly as
practicable after the Expiration Date, and after all prorations and adjustments
contemplated by the terms of the Rights Offering have been effected, but in any
event no later than three (3) business days following the Expiration Date, issue
certificates as Transfer Agent and Registrar representing Underlying Shares
subscribed for pursuant to the Basic Subscription Privilege and Oversubscription
Privilege, countersigned with the signature of an employee of the Subscription
and Information Agent, having authority to sign on its behalf as Registrar, and
registered in the names specified by the subscribers, and thereafter, the
Subscription and Information Agent shall mail or deliver such certificates as
instructed by the subscriber as soon as practicable in accordance with the terms
of the Prospectus and the rules of the National Association of Securities
Dealers, Inc. after collection of remittances for subscriptions.
(h) Upon the receipt by the Subscription and Information Agent and
the Company of evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Rights Certificate, and upon receipt of indemnity
or security reasonably satisfactory to them and reimbursement of all expenses
incidental thereto, and upon surrender and cancellation of the Rights
Certificate if mutilated, the Subscription and Information Agent will deliver a
new Rights Certificate of like tenor to the registered owner in lieu of the
Rights Certificate so lost, stolen, destroyed or mutilated. The Subscription
and Information Agent may, at the direction of the Company and with the consent
of the Rights holder of the lost, stolen or destroyed Rights Certificate, permit
the exercise of the Rights evidenced by such certificate without a replacement
of such certificate; provided that such lost, stolen or destroyed Rights
Certificate is not presented for exercise prior to the Expiration Date.
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(i) All Rights Certificates surrendered for the purpose of exercise,
subdivision, combination or replacement shall, upon surrender to the
Subscription and Information Agent be canceled by it, and no Rights Certificates
shall be issued in lieu thereof except as expressly permitted by any of the
provisions of this Agreement. The Subscription and Information Agent (A) may
deliver all canceled Rights Certificates to the Company, and if delivered, the
Company shall make available to the Subscription and Information Agent the
canceled Rights Certificates for its inspection, or (B) shall, at the written
request of the Company, destroy such Rights Certificates and in such case shall
deliver a certificate of destruction thereof to the Company.
Section 5. Payment of Taxes. The Company covenants and agrees that
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it will pay when due and payable all documentary, stamp and other taxes, if any,
which may be payable in respect of the issuance or delivery of any Rights
Certificate or of the Underlying Shares; provided, however, that the Company
shall not be liable for any tax liability arising out of any transaction which
results in, or is deemed to be, an exchange of Rights or Underlying Shares or a
constructive dividend with respect to the Rights or Underlying Shares and
provided further that the Company shall not be required to pay any tax or other
governmental charge which may be payable in respect of any transfer involved in
the transfer or delivery of any Rights Certificate or the issuance or delivery
of certificates representing the Underlying Shares in a name other than that of
the Recordholder of such Rights Certificate evidencing the Rights exercised or
transferred, and the Subscription and Information Agent shall not register any
such transfer or issue any such certificate representing the Underlying Shares
until such tax or governmental charge, if required, shall have been paid.
Section 6. Payment of Expenses. Except for the fees charged by the
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Subscription Agent described in Section 7 below (which will be paid by the
Company) and taxes described in Section 5 above, all commissions, fees and other
expenses (including brokerage commissions and transfer taxes) incurred in
connection with the purchase, sale or exercise of Rights will be for the account
of the transferor of the Rights, and none of such commissions, fees or expenses
will be paid by the Company or the Subscription and Information Agent.
Section 7. Subscription and Information Agent Compensation. The
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Company agrees that it will pay to the Subscription and Information Agent
compensation for the Subscription and Information Agent's services as such in
accordance with Schedule A attached hereto. The Subscription and Information
Agent agrees that such compensation shall include its services as Transfer Agent
and Registrar for the Underlying Shares. The Company further agrees that it
will reimburse the Subscription and Information Agent for its reasonable and
necessary expenses incurred in the performance of its duties under this
Agreement.
Section 8. Instructions. The Subscription and Information Agent will
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be entitled to rely upon any instructions or directions furnished to it in
writing by the Chairman of the Board, Chief Executive Officer, Chief Financial
Officer or the Senior Vice President and General Counsel of the Company (each, a
"Designated Officer"), and will be entitled to treat as genuine, and as the
document it purports to be any letter or other document furnished to it by any
Designated Officer.
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Section 9. Indemnification.
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(a) The Company will indemnify, protect and hold harmless the
Subscription and Information Agent (acting as Subscription and Information
Agent, Transfer Agent and Registrar under this Agreement) from any and all
liability, cost or expense resulting from any act, omission, delay or refusal,
made by the Subscription and Information Agent in reliance upon any signature,
endorsement, assignment, certificate, order, request, notice, instructions or
other instrument or document believed by the Subscription and Information Agent
in good faith to be valid, genuine and sufficient, and in accepting any
subscription believed by the Subscription and Information Agent in good faith to
have been duly authorized, or in delaying or refusing in good faith to accept
any subscription. The Company will also indemnify and hold harmless the
Subscription and Information Agent from and against any and all claims, demands,
expenses and liabilities, including reasonable attorney's fees, which the
Subscription and Information Agent may sustain or incur or which may be asserted
against the Subscription and Information Agent in connection with the
performance of its obligations under this Agreement, except for any loss, damage
or expense arising out of Subscription and Information Agent's negligence, bad
faith or willful misconduct, or the negligence, bad faith or willful misconduct
of any of the Subscription and Information Agent's agents, servants or
employees.
(b) The Subscription and Information Agent shall, in issuing the
Rights Certificates and in issuing and registering the shares of Common Stock as
Transfer Agent and Registrar pursuant to duly exercised Rights; be liable for
and shall indemnify and hold the Company harmless from any and all liability,
cost or expense as a result of or arising out of the Subscription and
Information Agent's own negligence, bad faith or willful misconduct, or that of
its agents, servants or employees. The Subscription and Information Agent
further agrees that, with respect to its use on the Subscription Certificate of
the facsimile signature of the authorized employee of the Subscription and
Information Agent, it will indemnify, protect, and hold harmless the Company
from any and all liability, cost or expense for anything done or omitted to be
done by the Subscription and Information Agent with respect to the use of such
facsimile signature, where such act or omission constitutes negligence, bad
faith or willful misconduct on the part of the Subscription and Information
Agent.
(c) The indemnities contained herein shall be continuing obligations
of the parties herein, and their respective successors and permitted assigns,
notwithstanding the termination of this Agreement.
(d) Notwithstanding anything contained herein to the contrary, the
aggregate amount of all liabilities, costs and expenses to which either party
hereto (including any and all other parties claiming by or through either party
hereto) shall be entitled to as the result of any claim against the other party
hereunder (regardless of whether such claims are based on contract, tort,
including negligence, warranty, or other legal or equitable grounds) shall be
limited to an amount equal to the actual amount of such liabilities, costs, or
expenses.
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Section 10. Amendments. This Agreement may only be amended,
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supplemented or otherwise modified by a written instrument executed and
delivered by a duly authorized representative of the Company and the
Subscription and Information Agent.
Section 11. Governing Law. This Agreement will be governed by, and
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construed and interpreted in accordance with, the laws of the State of New York.
Section 12. Counterparts. This Agreement may be executed by the
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parties hereto on separate counterparts, which counterparts taken together will
be deemed constitute one and the same instrument.
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If the foregoing is acceptable to you, please indicate your acceptance
of your appointment as Agent upon the terms set forth above by signing and
returning to us one copy of this Agreement.
Very truly yours,
AIR & WATER TECHNOLOGIES CORPORATION
By: __________________________________
Name: __________________________________
Title: __________________________________
Accepted and agreed to
FIRST CHICAGO TRUST COMPANY OF NEW YORK
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
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