Exhibit 99.9
SUBSCRIPTION AGENT AGREEMENT
This SUBSCRIPTION AGENT AGREEMENT (the "Agreement") is
made and entered into as of ______, 2001, by and between CBNY INVESTMENT
SERVICES CORP., a New York corporation (the "Company"), and SANDLER X'XXXXX
SHAREHOLDER SERVICES, a division of Sandler X'Xxxxx & Partners, L.P. a
Delaware partnership (the "Subscription Agent"), with reference to the
following:
A. The Company has filed with the Securities and Exchange
Commission (the "Commission"), under the Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder
(collectively the "Securities Act"), a Registration Statement on Form S-1,
No. 333-61212 (in the form in which it first becomes effective under the
Securities Act, and as it may thereafter be amended, the "Registration
Statement"), relating to the proposed distribution by the Company of
nontransferable subscription rights (the "Rights") to holders of record
("Record Holders") of shares of common stock, $5.00 par value, of the
Commercial Bank of New York (the "CBNY Common Stock") as of the close of
business on __________, 2001 (the "Record Date"), at a rate of one Right
for every five (5) shares of CBNY Common Stock held on the Record Date, and
the proposed sale of up to 1,060,000 newly-issued shares (the "Underlying
Shares") of common stock (the "Company Common Stock"), par value $1.00 per
share of the Company, in connection with the exercise of Rights
(collectively, the "Rights Offering").
B. Holders of Rights ("Rights Holders") will be entitled
to subscribe to purchase one Underlying Share for each Right (the "Basic
Subscription Privilege") at a price of $10.00 per share (the "Subscription
Price"), which price will be set forth in the prospectus which forms a part
of the Registration Statement (in the form in which the Registration
Statement first becomes effective, and as thereafter amended or
supplemented, the "Prospectus").
C. Rights Holders who exercise the Basic Subscription
Privilege in full will also be entitled to subscribe at the Subscription
Price (the "Oversubscription Privilege") to purchase additional Underlying
Shares, if any, remaining after satisfaction of all subscriptions pursuant
to the Basic Subscription Privilege (the "Excess Underlying Shares").
D. The Company wishes the Subscription Agent to act on
its behalf in connection with the Rights Offering as set forth herein, and
the Subscription Agent is willing so to act.
NOW, THEREFORE, the parties hereby agree as follows:
Section 1. Appointment of Subscription Agent. The Company
hereby appoints the Subscription Agent to act as agent in accordance with
the instructions set forth in this Agreement, and the Subscription Agent
hereby accepts such appointment and shall take such actions as may be
necessary to effectuate the terms of this Agreement. The Company may from
time to time appoint such co-agents as it may deem necessary or desirable.
Section 2. Distribution of Rights. The Company has
authorized the distribution of the Rights and, following the effectiveness
of the Registration Statement and the Record Date, will issue such Rights
to Record Holders as contemplated by the Registration Statement and the
Prospectus. The Company will notify promptly the Subscription Agent upon
the effectiveness of the Registration Statement. The Company will cause
American Stock Transfer & Trust Company, as transfer agent and registrar
for the CBNY Common Stock (the "Transfer Agent"), to provide such
assistance as the Subscription Agent may require to effect the distribution
of the Rights to Record Holders, including assistance in determining the
number of Rights to be distributed to each such Record Holder (including
Rights distributed to Record Holders on behalf of beneficial owners holding
through such Record Holders pursuant to the provisions for rounding down
fractional Rights set forth in Section 5(a), below). The Subscription Agent
will provide assistance in distributing the Prospectus, the Subscription
Right Certificates evidencing the Rights (the "Subscription Right
Certificates"), the Instructions for Use of CBNY Investment Services Corp.
Rights Certificates (the "Instructions") and all other ancillary documents
relating to the Rights Offering to Record Holders. The Subscription Right
Certificates and the Instructions will be substantially in the forms
attached hereto as Exhibits A and B, respectively.
Section 3. Oversubscription Privilege. If there are
insufficient Excess Underlying Shares to satisfy all exercised
Oversubscription Privileges, Excess Underlying Shares will be allocated
among Rights Holders, including banks, brokers, trustees or other nominees
(a "Qualified Financial Institution") that hold Rights for beneficial
owners, who exercise the Oversubscription Privilege. Subject to the
possible reduction described in Section 7(g) below, Excess Underlying
Shares will be allocated pro rata among such Rights Holders based on the
number of shares of CBNY Common Stock held by each such Rights Holder as of
the Record Date as a percentage of the aggregate number of shares of CBNY
Common Stock owned by the Rights Holders participating in the
oversubscription as of such date. To the extent that such allocation
results in any Rights Holder being allocated more Excess Underlying Shares
than such Rights Holder subscribed for pursuant to the Oversubscription
Privilege, then such Rights Holder will be allocated only the number of
Excess Underlying Shares subscribed for, and the remaining Excess
Underlying Shares will be similarly and successively reallocated among all
other Rights Holders exercising the Oversubscription Privilege. It will be
the responsibility of Rights Holders to allocate prorated Excess Underlying
Shares among any beneficial owners for which such Rights Holders are
acting.
Section 4. Signature and Registration.
(a) The Subscription Right Certificates will be executed
on behalf of the Company by its President, Chairman of the Board or Chief
Executive Officer and by its Secretary, an Assistant Secretary or Chief
Financial Officer by facsimile signature. Any Subscription Right
Certificate may be signed on behalf of the Company by any person who, at
the actual date of execution of such facsimile signature, is a proper
officer of the Company to sign such Subscription Right Certificate, even if
at the date of the execution of this Agreement or the date of actual
issuance of such certificate such person is not such an officer.
(b) The Subscription Agent will keep or cause to be
kept, at its principal offices in the State of New York, books for registration
and transfer of the Rights issued hereunder. Such books will show the names
and addresses of the respective Rights Holders and the number of Rights
evidenced by each outstanding Subscription Right Certificate.
Section 5. Division, Combination and Exchange of
Subscription Right Certificates; Mutilated, Destroyed, Lost or Stolen
Subscription Right Certificates.
(a) Subject to the provisions of Section 9 hereof, any
Subscription Right Certificate, or any two or more Subscription Right
Certificates, may be divided, combined or exchanged for any number of
Subscription Right Certificates or for a single Subscription Right
certificate of different denominations; provided, however, that the
aggregate number of Rights evidenced by the Subscription Right Certificate
or Certificates so issued does not exceed the aggregate number of Rights
evidenced by the Subscription Right Certificate or Certificates surrendered
in exchange therefor. No Subscription Right Certificates evidencing
fractional Rights will be issued upon division, combination or exchange of
other Subscription Right Certificates, and any instructions to divide,
combine or exchange Subscription Rights Certificates that would result in
the issuance of Subscription Right Certificates evidencing fractional
Rights are to be rejected.
(b) Any Rights Holder desiring to exchange any
Subscription Right Certificate or Certificates must make such requests in
writing to the Subscription Agent and surrender the Subscription Right
Certificate or Certificates to be exchanged to the Subscription Agent.
Thereupon the Subscription Agent will deliver to the person entitled
thereto a Subscription Right Certificate or Certificates, as the case may
be, as so requested. In all cases of transfer by an attorney-in-fact, the
original power of attorney, duly approved, or a copy thereof, duly
certified, must be deposited and remain with the Subscription Agent. In
case of transfer by executors, administrators, guardians or other legal
representatives, duly authenticated evidence of their authority
satisfactory to the Subscription Agent must be produced and may be required
to be deposited and to remain with the Subscription Agent in its
discretion. The Company may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
exchange of Subscription Right Certificates.
(c) Upon receipt by the Company and the Subscription
Agent of evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Subscription Right Certificate, and, in case
of loss, theft or destruction, of indemnity and/or security satisfactory to
them, in their sole discretion, and reimbursement to the Company and the
Subscription Agent of all reasonable expenses incidental thereto, and upon
surrender and cancellation of the Subscription Right Certificate, if
mutilated, the Subscription Agent will make and deliver a new Subscription
Right Certificate of like tenor to the registered Rights Holder in lieu of
the Subscription Right Certificate so lost, stolen, destroyed or mutilated.
If required by the Company or the Subscription Agent, an indemnity bond
must be sufficient in the judgment of each party to protect the Company,
the Subscription Agent or any agent thereof from any loss which any of them
may suffer if a lost, stolen, destroyed or mutilated Subscription Right
Certificate is replaced.
Section 6. Subsequent Issue of Subscription Right
Certificates. Subsequent to the original issuance of the Subscription Right
Certificates, no Subscription Right Certificates will be issued except as
provided herein.
Section 7. Exercise of Rights; Exercise Price; Expiration
Date; Limitations.
(a) Subject to the possible reduction described in
Section 7(g) below, a Rights Holder may exercise Rights held by such Rights
Holder by properly completing, signing and delivering the Subscription
Right Certificate representing such Rights, with any required signature
guarantees, together with payment in full of the Subscription Price for the
aggregate number of Underlying Shares subscribed for pursuant to such
Rights Holder's exercise of the Basic Subscription Privilege and the
Oversubscription Privilege, before any proration or reduction with respect
to the Oversubscription Privilege. Subscription Rights Certificates and
payment of the Subscription Price must be received by the Subscription
Agent before 5:00 p. m., Eastern Time, on ___________, 2001, or such later
time and date to which the Rights may be extended by the Company at its
option (the "Expiration Time") or, in relation to any particular Rights
Holder, a date otherwise agreed to between the Company and the Subscription
Agent. A Right will not be deemed exercised until the Subscription Agent
receives both payment of the Subscription Price and a duly executed
Subscription Right Certificate, unless otherwise agreed to by the
Subscription Agent. A Rights Holder's Oversubscription Privilege must be
exercised concurrently with such Rights Holder's Basic Subscription
Privilege. Once a Rights Holder has exercised a Right, such exercise may
not be revoked. The Rights will expire at the Expiration Time. The Company
may notify the Subscription Agent either orally or in writing of any
extension of the Expiration Time. If the Company gives an oral notice of an
extension, it will confirm such extension in writing.
(b) Unless a Subscription Right Certificate (i)
provides that the Underlying Shares to be issued pursuant to the exercise
of Rights represented thereby are to be registered in the name of and
delivered to the registered holder of such Subscription Right Certificate,
or (ii) is submitted for the account of a member firm of a registered
national securities exchange or a member of the National Association of
Securities Dealers, Inc. (the "NASD"), or a commercial bank or trust
company having an office or correspondent in the United States (each, an
"Eligible Institution"), signatures on such Subscription Right Certificate
must be guaranteed by an Eligible Guarantor Institution, as defined in Rule
17Ad-15(a)(2)of the Securities Exchange Act of 1934, as amended.
(c) The Subscription Price will be payable in United
States dollars (i) by certified check or bank draft drawn upon a United
States bank payable to the order of The Chase Manhattan Bank, as escrow
agent to the Company (the "Escrow Agent"), or (ii) by wire transfer of same
day funds to the account of the Escrow Agent, as agent for the Company,
maintained for such purpose at The Chase Manhattan Bank , ABA #___________,
credit to (Subscriber's name), for further credit to CBNY Investment
Services Corp. Rights Offering Account #_____________. The Subscription
Price will be deemed to have been received by the Escrow Agent only upon
(i) receipt by the Escrow Agent of any certified check or bank draft drawn
upon a United States bank, or (ii) receipt of collected funds in the Escrow
Agent account's designated above, in payment of the Subscription Price.
(d) If a Subscription Right Certificate does not
indicate the number of Underlying Shares subscribed for or if the
Subscription Price payment forwarded to the Escrow Agent is insufficient to
purchase the number of Underlying Shares subscribed for, the Rights Holder
will be deemed to have exercised the Basic Subscription Privilege with
respect to the maximum number of whole Underlying Shares that may be
subscribed for based on the Subscription Price delivered to the
Subscription Agent and, to the extent that the payment delivered by such
Rights Holder exceeds the aggregate Subscription Price with respect to the
Basic Subscription Privilege, the Rights Holder will be deemed to have
exercised the Oversubscription Privilege with respect to the maximum number
of whole Underlying Shares that may be subscribed for with such excess
amount. If a Rights Holder (other than a Qualified Financial Institution)
exercises an Oversubscription Privilege without exercising its Basic
Subscription Privilege in full, such Rights Holder will be deemed to have
exercised such Basic Subscription Privilege to the fullest possible extent,
and the Oversubscription Privilege will be deemed exercised only to the
extent of payments received from such Rights Holder in excess of the
aggregate Subscription Price applicable to such deemed Basic Subscription
Privilege exercise.
(e) The Subscription Agent will instruct the Escrow
Agent to pay to, credit to the account of, or otherwise transfer to the
Company all funds received by the Subscription Agent in payment of the
Subscription Price for Underlying Shares subscribed for pursuant to the
Basic Subscription Privilege as soon as practicable following receipt
thereof and of all related documents and upon satisfaction of the net
capital requirements set forth in subsection (e)(2) of NASD Conduct Rule
2720.
(f) The Company will instruct the Escrow Agent that
payment of the Subscription Price for Excess Underlying Shares subscribed
for pursuant to the Oversubscription Privilege shall be held in a
segregated account pending issuance of such Excess Underlying Shares and
upon satisfaction of the net capital requirements set forth in subsection
(e)(2) of NASD Conduct Rule 2720. The Subscription Agent will instruct the
Escrow Agent to pay to, credit to the account of, or otherwise transfer to
the Company all funds received in payment of the Subscription Price
pursuant to the Oversubscription Privilege, as soon as practicable
following the Expiration Time and allocation of Excess Underlying Shares
for purchase pursuant to the Oversubscription Privilege and upon
satisfaction of the net capital requirements set forth in subsection (e)(2)
of NASD Conduct Rule 2720.
(g) The Company may notify the Subscription Agent
either orally or in writing that it will not issue shares of Company Common
Stock to any Rights Holder who is required, in the Company's sole judgment
and discretion, to obtain prior clearance, approval or nondisapproval from
any state or federal regulatory authority (including blue sky
qualification) to own or control such shares unless, prior to the
Expiration Time, evidence of such clearance, approval or nondisapproval has
been provided to the Company.
Section 8. Delivery of Stock Certificates; Refunds. The
Subscription Agent will, on each business day commencing ________, 2001,
until two business days immediately following the later of the Expiration
Time, allocation of Excess Underlying Shares for purchase pursuant to the
Oversubscription Privilege or receipt and satisfaction of all regulatory
approvals and other conditions to the Merger Transaction and as requested
by the Transfer Agent, furnish the Transfer Agent with such information as
the Transfer Agent may reasonably require, and in such form as the Transfer
Agent may reasonably request, to allow the Transfer Agent to issue
certificates representing all Underlying Shares to be issued pursuant to
the Basic Subscription Privileges and evidencing any Excess Underlying
Shares purchased pursuant to Oversubscription Privileges. Unless the
Subscription Right Certificate provides otherwise, certificates for
Underlying Shares purchased pursuant to the exercise of Rights will be
registered in the name of the Rights Holder exercising such Rights. Any
refund, without interest, of the Subscription Price for Excess Underlying
Shares subscribed for but not sold due to proration or otherwise will be
mailed or delivered by the Subscription Agent to the Rights Holder to whom
such refund is due as soon as practicable after the later of the later of
the Expiration Time or the receipt and satisfaction of all regulatory
approvals and other conditions to the Merger Transaction.
Section 9. Fractional Rights and Shares. No fractional
Rights or cash in lieu thereof will be issued or paid. The number of Rights
distributed to each Record Holder or beneficial owner holding through a
Qualified Financial Institution that complies with the procedures set forth
in Section 5(a) above will be rounded down to the next whole number. All
questions as to the validity and eligibility of any rounding of fractional
Rights (including, without limitation, in connection with the surrender by
a Qualified Financial Institution of a Subscription Right Certificate, as
set forth in Section 5(a) hereof) will be determined by the Company in its
sole discretion, and its determination will be final and binding.
Section 10. Foreign and Certain Other Shareholders.
Subscription Right Certificates will be mailed to Record Holders whose
registered addresses are outside the United States and Canada or who have
an APO or FPO address (collectively, "Foreign Record Holders"). To so
exercise their Rights, Foreign Record Holders must deliver to the
Subscription Agent their Subscription Rights Certificates and payment of
the Subscription Price not later than the Expiration Time. If such
Subscription Rights Certificates and Subscription Price have not been
received by the Subscription Agent by such time, the rights will expire and
become worthless.
Section 11. Amendments and Waivers; Termination.
(a) The Company reserves the right to extend the
Expiration Time, and to amend the terms and conditions of the Rights
Offering, whether the amended terms are more or less favorable to Rights
Holders.
(b) All questions as to the validity, form,
eligibility (including time of receipt and record ownership) and acceptance
of any exercise of Rights will be determined by the Company, in its sole
discretion, and the Company reserves the right to reject any exercise if
such exercise is not in accordance with the terms of the Rights Offering or
is not in proper form, or if the acceptance thereof or the issuance of
Underlying Shares pursuant thereto could be deemed unlawful. The Company
also reserves the right to waive any deficiency or irregularity (including,
without limitation, any deficiency with respect to time of receipt of a
Subscription Right Certificate or the Subscription Price for all Underlying
Shares subscribed for pursuant thereto) or to permit a defect or
irregularity to be corrected within such time as it may determine.
Subscriptions 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 Company nor the
Subscription Agent will be under any duty to give notification of any
defect or irregularity in connection with the submission of Subscription
Right Certificates or incur any liability for failure to give such
notification.
(c) The Subscription Agent is hereby authorized and
directed to accept instructions with respect to the performance of its
duties hereunder from the Chairman of the Board, President or Chief
Executive Officer, any Vice President (including any Senior or Executive
Vice President), the Treasurer, any Assistant Treasurer, the Secretary or
any Assistant Secretary of the Company, or any other person designated by
any of them, and to apply to such officers for advice or instructions in
connection with its duties, and it will not be liable for any action taken
or suffered to be taken by it in good faith in accordance with the
instructions of any such officer.
Section 12. Reports. The Subscription Agent will notify
the Company and their designated representatives by telephone each business
day during the period commencing on ________, 2001, and ending at the
Expiration Time, which notice will thereafter be confirmed in writing, of
(i) the number of Rights exercised each day, (ii) the number of Underlying
Shares subscribed for pursuant to the Basic Subscription Privilege each day
and the number of such shares for which payment has been received, (iii)
the number of Underlying Shares subscribed for pursuant to the
Oversubscription Privilege each day and the number of such Underlying
Shares for which payment has been received, (iv) the number of Rights for
which defective Subscription Right Certificates have been received each
day, (v) the number of requests from Qualified Financial Institutions
holding Rights on behalf of more than one beneficial holder to effect an
exchange of a Subscription Right Certificate or Certificates so as to
obtain additional Rights to which such beneficial holders are entitled, as
set forth in Section 5(a), above, and the increase in the number of Rights
that would result from such exchange, and (vi) cumulative totals with
respect to the information set forth in each of the clauses (i) through (v)
above. At or before 5:00 p.m., Eastern time, on the second business day
following the Expiration Time, the Subscription Agent will certify in
writing to the Company the cumulative totals through the Expiration Time
with respect to the information set forth in clauses (i) through (iv)
above. The Subscription Agent also will maintain and update a listing of
Rights Holders who have fully or partially exercised their Rights and
Rights Holders who have not exercised their Rights. The Subscription Agent
will provide the Company and its designated representatives with the
information compiled pursuant to this Section 12 and any Subscription Right
Certificates or other documents or date from which such information
derived, as any of them may request.
Section 13. Payment of Taxes. The Company will pay when
due all document, stamp and other taxes, if any, that may be payable with
respect to the issuance or delivery of any Rights or the issuance of any
Underlying Shares upon the exercise of Rights; provided, however, that the
Company will not be liable for any tax arising out of any transaction that
results in, or is deemed to constitute, an exchange of Rights or Underlying
Shares or a constructive dividend with respect to the Rights or Underlying
Shares. Except as provided above, all transfer and other taxes incurred in
connection with the exercise of Rights will be for the account of the
transferor of the Rights, and no such taxes will be paid by the Company or
the Subscription Agent. If any transfer tax is imposed for any reason other
than the issuance of Underlying Shares to a Rights Holder upon exercise of
Rights by such Rights Holder, the amount of any such transfer taxes
(whether imposed on such Rights Holder or any other person) will be payable
by such person and the Subscription Agent will be entitled to refuse to
implement such exercise or other requested action unless it is furnished
with proof satisfactory to it of the payment of such transfer taxes by such
Rights Holder or other person.
Section 14. Cancellation and Destruction of Subscription
Rights Certificates. All Subscription Right Certificates surrendered for
the purpose of exercise, exchange, substitution or transfer will be
canceled by the Subscription Agent, and no Subscription Right Certificates
will be issued in lieu thereof, except as expressly permitted by this
Agreement. The Company will deliver to the Subscription Agent for
cancellation and retirement, and the Subscription Agent will so cancel and
retire, any Subscription Right Certificates purchased or acquired by the
Company otherwise than upon the exercise thereof. The Subscription Agent
will either deliver all canceled Subscription Right Certificates to the
Company or, at the written request of the Company, destroy such canceled
Subscription Right Certificates, and in such case will deliver a
certificate of destruction thereof to the Company.
Section 15. Fees of the Subscription Agent; Indemnification.
(a) The Company shall pay to the Subscription Agent
compensation in accordance with the fee schedule attached hereto as Exhibit
C for all services rendered by it hereunder and, from time to time, its
reasonable expenses and other disbursements incurred in the administration
and execution of this Agreement and the exercise and performance of its
duties hereunder, up to a maximum amount of $_______.
(b) The Company shall indemnify and hold the
Subscription Agent and its affiliates and their respective partners,
directors, officers, employees, agents and controlling persons within the
meaning of Section 15 of the Securities Act of 1933 or Section 20 of the
Securities Exchange Act of 1934 (the Subscription Agent and each such
person being an "Indemnified Party") harmless from and against any and all
losses, claims, damages and liabilities, joint or several, to which such
Indemnified Party may become subject under applicable federal or state law,
or otherwise, related to or arising out of the Rights Offering or the
engagement of the Subscription Agent pursuant to, or the performance by the
Subscription Agent of the services contemplated by, this agreement, and
will reimburse any Indemnified Party for all expenses (including reasonable
legal fees and expenses) as they are incurred, including expenses incurred
in connection with the investigation of, preparation for or defense of any
pending or threatened claim or any action or proceeding arising therefrom,
whether or not such Indemnified Party is a party; provided, however, that
the Company will not be liable in any such case to the extent that any such
loss, claim, damage, liability or expense is found by a court of competent
jurisdiction to have resulted primarily from the gross negligence, willful
misconduct or bad faith of the Subscription Agent.
(c) The Subscription Agent will be protected and
will incur no liability for or with respect to any action taken, suffered
or omitted by it without negligence and in good faith in connection with
its administration of this Agreement in reliance upon any Subscription
Right Certificate, instrument of assignment or transfer, power of attorney,
endorsement, affidavit letter, notice, direction, consent, certificate,
statement or other paper or document reasonably believed by it to be
genuine and to be signed, executed and, where necessary, verified or
acknowledged by the proper person or persons.
(d) Anything in this Agreement to the contrary
notwithstanding, in no event will the Subscription Agent be liable for
special, indirect or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the Subscription Agent
has been advised of the likelihood of such loss or damage and regardless of
the form of action.
Section 16. Merger or Consolidation of Subscription
Agent. Any corporation into which the Subscription Agent or any successor
Subscription Agent may be merged or with which it may be consolidated, or
any corporation resulting from any merger or consolidation to which the
Subscription Agent or any successor Subscription Agent may be a party, or
any corporation succeeding to the business of the Subscription Agent or any
successor Subscription Agent, will be the successor to the Subscription
Agent under this Agreement without the execution or filing of any paper or
any further act on the part of any of the parties hereto.
Section 17. Concerning the Subscription Agent. The
Subscription Agent undertakes the duties and obligations imposed by this
Agreement upon the following terms and conditions:
(a) The Subscription Agent may consult with legal
counsel acceptable to the Company (who may be, but is not required to be,
legal counsel for the Company), and the opinion of such counsel will be
full and complete authorization and protection to the Subscription Agent as
to any action taken or omitted by it in good faith and in accordance with
such opinion.
(b) Whenever in the performance of its duties under
this Agreement the Subscription Agent may deem it necessary or desirable
that any fact or matter be proved or established by the Company prior to
taking or suffering any action hereunder, such fact or matter (unless other
evidence in respect thereof be herein specifically prescribed) may be
deemed to be conclusively proved and established by a certificate signed by
the Chairman of the Board, President or Chief Executive Officer, any Vice
President (including any Senior or Executive Vice President), the Treasurer
or any Assistant Treasurer, or the Secretary of the Company and delivered
to the Subscription Agent, and such certificate will be full authorization
to the Subscription Agent for any action taken or suffered in good faith by
it under the provisions of this Agreement in reliance upon such
certificate.
(c) The Subscription Agent will have no
responsibility with respect to the validity of this Agreement or the
execution and delivery hereof (except the due execution by the Subscription
Agent, and the enforceability of, this agreement on the Subscription
Agent), or with respect to the validity or execution of any Subscription
Right Certificate.
(d) Nothing herein precludes the Subscription Agent
from acting in any other capacity for the Company, Commercial Bank of New
York or any of their affiliates.
(e) The Subscription Agent is not obligated to, and
will not, make any recommendation, either directly or indirectly, regarding
the advisability of exercising the Rights or any aspect of the Rights
Offering. If any such advice is requested, the Subscription Agent may
respond that such person should consult his or her own investment advisor
or broker.
Section 18. Certificate Tax Matters.
(a) The Company shall instruct and ensure that the
Escrow Agent complies with the information reporting and backup withholding
requirements of the Internal Revenue Code of 1986, as amended (the "Code"),
including, without limitation, where appropriate, on a timely basis, filing
with the Internal Revenue Service and furnishing to Rights Holders duly
completed Forms 1099B. The Escrow Agent also will collect and duly preserve
Forms W-8 and W-9 and other forms or information necessary to comply with
the backup withholding requirement of the Code.
(b) The Company shall instruct, and ensure that, the
Escrow Agent withhold from payments made to Rights Holders amounts
sufficient to comply with the backup withholding requirements of the Code.
Section 19. Notices to the Company, Rights Holders and
Subscription Agent. All notices and other communication provided for or
permitted hereunder are to be made by hand delivery, prepaid first class
mail or facsimile:
(a) If to the Company, to:
CBNY Investment Services Corp.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
Financial Operations Principal and Treasurer
(b) If to the Subscription Agent:
Sandler X'Xxxxx & Partners, L.P.
Shareholder Services Division
Xxx Xxxxx Xxxxx Xxxxxx, 000xx Xxxxx
Xxx Xxxx, Xxx Xxxx 0000
Fax: (000) 000-0000
Attention: Xxxxxxxxx X. Xxxxxx
General Counsel
(c) If to a Rights Holder, to the address shown on
the registry books of the Company.
All such notices and communications will be deemed to
have been duly given when delivered by hand, if personally delivered; two
business days after being deposited in the mail, postage, prepaid, if
mailed as aforesaid; and when receipt is acknowledged if sent by facsimile.
Section 20. Supplements and Amendments. The Company and
the Subscription Agent may from time to time supplement or amend this
Agreement without the approval of any Rights Holders.
Section 21. Successors. All the covenants and provisions
of the Agreement by or for the benefit of the Company or the Subscription
Agent will bind and inure to the benefit of their respective successors and
assigns hereunder.
Section 22. Termination. This Agreement will terminate at
5:00 p.m., Eastern time, on the thirtieth day following the Expiration
Time.
Section 23. Governing Law. This Agreement will be deemed
to be a contract made under the laws of the State of New York and for all
purposes is to be construed in accordance with the internal laws of said
State.
Section 24. Benefits of This Agreement. Nothing in this
Agreement is to be construed to give to any person or corporation other
than the Company and the Subscription Agent any legal or equitable right,
remedy or claim under this Agreement. This Agreement is for the sole and
exclusive benefit of the Company and the Subscription Agent.
Section 25. Counterparts. This Agreement may be executed
in any number of counterparts and each of such counterparts will for all
purposes be deemed to be an original, but all such counterparts will
together constitute one and the same instrument.
Section 26. Descriptive Headings. Descriptive headings of
the several Sections of this Agreement are inserted for convenience only
and do not control or affect the meaning or construction of any of the
provisions hereof.
(Signature page follows)
IN WITNESS WHEREOF, each of the parties hereto has caused the Agreement to
be duly executed as of the date first above written.
CBNY INVESTMENT SERVICES CORP.
a New York corporation
By:___________________________________
Name: ________________________________
Its: _________________________________
SANDLER X'XXXXX SHAREHOLDER SERVICES
a division of Sandler X'Xxxxx & Partners, L.P.
By: Sandler X'Xxxxx & Partners Corp.,
the sole general partner
By:___________________________________
Name: ________________________________
Its: _________________________________
EXHIBIT A
FORM OF SUBSCRIPTION RIGHTS CERTIFICATES
EXHIBIT B
FORM OF INSTRUCTIONS FOR USE OF CBNY
INVESTMENT SERVICES CORP. RIGHTS CERTIFICATES
EXHIBIT C
FEE SCHEDULE
