Acceptance of Subscriptions. Upon acceptance of a Subscription, Continental shall from time to time during the offering: (a) Hold all monies received in a dedicated, non-interest bearing account for the benefit of the Company. Promptly following the Expiration Time, Continental shall, upon the receipt of the Distribution Letter in the form attached hereto as Exhibit 3 and executed by the Company and Maxim Group LLC, distribute to the Company the funds from exercise of the Basic Subscription Rights and Over-Subscription Rights in such account and following the Expiration Date issue (in physical form or electronically through the facilities of DTC, in each case in a manner approved by the Company) certificates for shares of Common Stock issuable with respect to Subscriptions that have been accepted. Continental will not be obligated to calculate or pay interest to any holder or any other party claiming through a holder or otherwise. It is hereby agreed immediately following the effective date of the Subscription, immediately available funds, represented by certified check, money order, or wire transfer but not personal check, will be deposited with Continental. In the event that the Rights Offering is not consummated because the Company (i) has cancelled or terminated the Rights Offering or (ii) is unable to raise a minimum of $2,500,000 (net of expenses) in the Rights Offering prior to the Expiration Date (unless such minimum is waived or reduced by the Company’s board of directors and with the prior written consent of Maxim Group LLC (which consent will not be unreasonably withheld)), Continental shall, upon the receipt of the Liquidation Letter in the form attached hereto as Exhibit 4 and executed by the Company and Maxim Group LLC, liquidate the segregated account in which the subscription monies were held as promptly as practicable and distribute the funds to each respective subscribing stockholder who elected to exercise its Rights. (b) Advise the Company daily by facsimile transmission and confirm by letter to the attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Company Representative”) as to the total number of shares of Common Stock Subscribed for, the total number of Rights partially Subscribed for and the amount of funds received, with cumulative totals for each; and in addition advise the Company Representative, by telephone at (▇▇▇) ▇▇▇-▇▇▇▇, confirmed by facsimile transmission, 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 Subscribed for and the number of shares of Common Stock unsubscribed for.
Appears in 1 contract
Sources: Subscription Agent Agreement (Pro Pharmaceuticals Inc)
Acceptance of Subscriptions. Upon The acceptance of a Subscription, Continental shall from time to time during subscriptions is at the offering:
(a) Hold all monies received in a dedicated, non-interest bearing account for the benefit discretion of the Company. Promptly following the Expiration Time, Continental shall, upon the receipt of the Distribution Letter in the form attached hereto as Exhibit 3 and executed The Company may require additional information prior to determining whether to accept a subscription. Subscription payments should be made by the Company and Maxim Group LLC, distribute wire to the Company the funds from exercise of the Basic Subscription Rights and Over-Subscription Rights in such account and following the Expiration Date issue (in physical form or electronically through the facilities of DTC, in each case in a manner approved by the Company) certificates for shares of Common Stock issuable with respect to Subscriptions that have been accepted“Clean Energy Solutions”. Continental will not be obligated to calculate or pay interest to any holder or any other party claiming through a holder or otherwise. It is hereby agreed immediately following the effective date of the Subscription, immediately available funds, represented by certified check, money order, or Payments via wire transfer but not personal checkshould be made pursuant to instructions provided in Exhibit B hereto. For additional information or to have any questions answered, will be deposited with Continentalplease contact M▇. In the event that the Rights Offering is not consummated because the Company (i) has cancelled or terminated the Rights Offering or (ii) is unable to raise a minimum of $2,500,000 (net of expenses) in the Rights Offering prior to the Expiration Date (unless such minimum is waived or reduced by the Company’s board of directors and with the prior written consent of Maxim Group LLC (which consent will not be unreasonably withheld)), Continental shall, upon the receipt of the Liquidation Letter in the form attached hereto as Exhibit 4 and executed by the Company and Maxim Group LLC, liquidate the segregated account in which the subscription monies were held as promptly as practicable and distribute the funds to each respective subscribing stockholder who elected to exercise its Rights.
(b) Advise the Company daily by facsimile transmission and confirm by letter to the attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Company Representative”) as to the total number of shares of Common Stock Subscribed for, the total number of Rights partially Subscribed for and the amount of funds received, with cumulative totals for each; and in addition advise the Company RepresentativeCompany’s Chief Executive Officer, by telephone at (▇▇▇) ▇▇▇-▇▇▇▇▇ Ext. 814. No prospective investor will be deemed to have purchased any Securities unless and until such time as all of the following conditions to closing have occurred: (1) a Subscription Agreement and (2) a Purchaser Questionnaire have been fully completed and duly and validly executed by such prospective investor, confirmed delivered to the Company, and this Subscription Agreement is accepted in writing by facsimile transmissionthe Company and (3) the Purchase Price (as defined in the Subscription Agreement) shall have been paid in full. Ladies and Gentlemen: The undersigned understands that Clean Energy Technologies, Inc., incorporated under the laws of the State of Nevada (the “Company”), is offering units (each, a “Unit”) with each Unit consisting of one (1) share of common stock, par value $0.001, of the amount Company (the “Common Stock” and a warrant (the “Warrant”) to purchase one (1) share of funds received identified Common Stock, at an exercise price of $2.00 per share, expiring one year from the date hereof (the “Offering”) to the undersigned pursuant to the terms of this Subscription Agreement. The Unit, together with the Common Stock issued thereunder, the Warrant and the Common Stock issuable upon the exercise of the Warrant are referred to as the “Securities”).The undersigned further understands that (i) the Offering is being made without registration of the Securities under the Securities Act of 1933, as amended (the “Securities Act”), and is being made only to “accredited investors” (as defined in accordance with Rule 501(a) of Regulation D under the Securities Act) under an exemption available under Rule 506(b) of Regulation D, and (aii) above, deposited, available the undersigned will not be deemed to have purchased any Units unless and until such time as all of the following conditions to closing have occurred: (A) this Subscription Agreement and such other supplemental subscription or transferred in accordance with (a) above, with cumulative totals; and
(c) As promptly stock purchase agreements or documentation 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 are requested by the Company Representative have been duly and validly executed by the undersigned, delivered to the Company and accepted by the Company (B) the undersigned has completed and executed a Purchaser Questionnaire and (C) the Purchase Price for the Units shall have been paid in accordance with (b) above of the number of shares Subscribed for and the number of shares of Common Stock unsubscribed forfull.
Appears in 1 contract
Sources: Subscription Agreement (Clean Energy Technologies, Inc.)
Acceptance of Subscriptions. Upon acceptance of a Subscription, Continental shall from time to time during the offering:
(a) Hold all monies received in a dedicated, non-interest bearing account for the benefit of the Company. Promptly following the Expiration Time, Continental shall, upon the receipt of the Distribution Letter in the form attached hereto as Exhibit 3 and executed by the Company and Maxim Group LLCCompany, distribute to the Company the funds from exercise of the Basic Subscription Rights and Over-Subscription Rights in such account and following the Expiration Date issue (in physical form or electronically through the facilities of DTC, in each case in a manner approved by the Company) certificates for shares of Common Stock issuable with respect to Subscriptions that have been accepted. Continental will not be obligated to calculate or pay interest to any holder or any other party claiming through a holder or otherwise. It is hereby agreed immediately following the effective date of the Subscription, immediately available funds, represented by certified check, money order, or wire transfer but not personal check, will be deposited with Continental. In the event that the Rights Offering is not consummated because the Company (i) has withdrawn, cancelled or terminated the Rights Offering or (ii) is unable to raise a minimum of $2,500,000 (net of expenses) in the Rights Offering prior to the Expiration Date (unless such minimum is waived or reduced by the Company’s board of directors and with the prior written consent of Maxim Group LLC (which consent will not be unreasonably withheld))Offering, Continental shall, upon the receipt of the Liquidation Letter in the form attached hereto as Exhibit 4 and executed by the Company and Maxim Group LLCCompany, liquidate the segregated account in which the subscription monies were held as promptly as practicable and distribute the funds to each respective subscribing stockholder who elected to exercise its Rights.
(b) Advise the Company daily by facsimile transmission and confirm by letter to the attention of ▇▇▇▇ ▇▇▇▇ . ▇▇▇▇▇▇▇▇ (the “Company Representative”) as to the total number of shares of Common Stock Subscribed for, the total number of Rights partially Subscribed for and the amount of funds received, with cumulative totals for each; and in addition advise the Company Representative, by telephone at (▇▇▇) ▇ ▇▇▇-▇▇▇▇▇ , confirmed by facsimile transmissiontransmission or email attachment to ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇ , of the amount of funds received identified in accordance with (a) above, deposited, available 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 Eastern Daylight Savings 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 Subscribed for and the number of shares of Common Stock unsubscribed forunsubscribed.
Appears in 1 contract
Acceptance of Subscriptions. Upon acceptance 1. The Rights Agent is hereby authorized and directed to receive subscriptions for ADSs on behalf of a Subscription, Continental shall from time to time the Company throughout the Subscription Period. Any funds that the Rights Agent receives during the offeringSubscription Period from Owners in respect of payments for ADSs shall be deposited in an interest bearing account at the Rights Agent that the Rights Agent designates solely for such purpose (the "Deposit Account") and such funds shall remain in the Deposit Account until they are distributed to the Company in accordance with Article VI, paragraph 1 hereof. As promptly as practicable after the Rights Agent receives each Owner's Instruction, the Rights Agent shall determine whether the Owner sending such Owner's Instruction has properly completed and executed such forms and has submitted the correct payment for the ADSs. If such form is not properly completed, is unexecuted or, if such Owner did not send the correct payment amount then the Rights Agent will send a notice to such Owner instructing such Owner to amend its Owner's Instruction or submit the proper payment amount, as the case may be. Except as otherwise set forth in this Article IV, if such Owner does not amend its Owner's Instruction or submit the proper payment amount, as the case may be, by the Expiration Date, such Owner's right to purchase ADSs in the Rights Offer shall be deemed to be unexercised. Notwithstanding the foregoing, without further authorization from the Company, except where otherwise specified or as otherwise notified in writing by the Company prior to the Expiration Date, the following Owner's Instructions shall be deemed to be properly completed:
(a) Hold all monies received in a dedicated, non-interest bearing account for the benefit of the Company. Promptly following the Expiration Time, Continental shall, upon the receipt of the Distribution Letter any subscription with respect to which an Owner has failed to execute an Owner's Instruction in the form attached hereto as Exhibit 3 manner provided by the terms thereof, provided that (1)the Owner has indicated on such Owner's Instruction or by written communication, the manner in which the Owner wishes to subscribe and (2)proper payment has been made by such Owner;
(b) any subscription by an individual (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by an individual (and not by a corporation, partnership or fiduciary) other than the Owner, provided that (1) the Owner's Instruction submitted therewith has been duly executed by the Company Owner, (2) the Owner is the Owner to which such Owner's Instruction relates, (3) the check tendered in payment of such subscription is drawn for the proper amount and Maxim Group LLC, distribute to the Company order of The Bank of New York and is otherwise in order, and (4) there is no evidence actually known to the funds from exercise Rights Agent indicating that such check was delivered to the Owner by the drawer thereof for any purpose other than the payment of the Basic Subscription accompanying subscription;
(c) any subscription by a custodian on behalf of a minor which is accompanied by a check drawn by an individual (and not by a corporation, partnership or fiduciary) other than the Owner, if the provisos set forth in clause (b) above are satisfied; or
(d) any subscription by an individual (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by a corporation, partnership or fiduciary other than the Owner, if the provisos set forth in clause (b) above are satisfied.
2. The Rights and Over-Subscription Rights in such account and following the Expiration Date issue (in physical form or electronically through the facilities of DTC, in each case in a manner approved by the Company) certificates for shares of Common Stock issuable with respect to Subscriptions that have been accepted. Continental will not be obligated to calculate or pay interest to any holder or any other party claiming through a holder or otherwise. It Agent is hereby agreed immediately following the effective date authorized to accept subscriptions for ADSs on behalf of the Subscription, immediately available funds, represented by certified check, money order, or wire transfer but not personal check, will be deposited with Continental. In the event that the Rights Offering is not consummated because the Company (i) has cancelled or terminated on the Rights Offering or Expiration Date, (ii) after determining the total number of ADSs that an owner is unable entitled to raise a minimum of $2,500,000 (net of expenses) purchase in the Rights Offering prior Offer, pursuant to Article VI hereof, and (iii) upon the Expiration Date (unless such minimum is waived or reduced by proper completion and execution of the Company’s board of directors and Owner's Instruction, in accordance with the prior written consent terms thereof and hereof.
3. The Rights Agent is authorized to waive proof of Maxim Group LLC authority to sign (including the right to waive signatures of co-fiduciaries and proof of appointment or authority of any fiduciary or other person acting in a representative capacity) in connection with any subscription with respect to which:
(a) the ADSs to which consent will not be unreasonably withheld)), Continental shall, upon the receipt of the Liquidation Letter Owner's Instruction relates are registered in the form attached hereto as Exhibit 4 name of an executor, administrator, trustee, custodian for a minor or other fiduciary and has been executed by such Owner provided that the Company and Maxim Group LLC, liquidate ADSs purchased are to be issued in the segregated account in which the subscription monies were held as promptly as practicable and distribute the funds to each respective subscribing stockholder who elected to exercise its Rights.name of such Owner;
(b) Advise the Company daily by facsimile transmission and confirm by letter ADSs to which the attention Owner's Instructions relates are registered in the name of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Company Representative”) as to the total number of shares of Common Stock Subscribed for, the total number of Rights partially Subscribed for a corporation and the amount Owner's Instruction has been executed by an officer of funds receivedsuch corporation, with cumulative totals for each; and provided that the ADSs purchased are to be issued in addition advise the Company Representative, by telephone at (▇▇▇) ▇▇▇-▇▇▇▇, confirmed by facsimile transmission, name of the amount of funds received identified in accordance with (a) above, deposited, available or transferred in accordance with (a) above, with cumulative totals; andsuch corporation;
(c) As promptly the Owner's Instruction has been executed by a bank, trust company or broker as possible but agent for the Owner to which such Owner's Instruction relates, provided that the ADSs purchased are to be issued in any event on the name of such Owner; or
(d) the ADSs to which such Owner's Instructions relates are registered in the name of a decedent and the Owner's Instruction has been executed by a person who purports to act as the executor or before 3:30 p.m.administrator of such decedent's estate, provided that (1) the ADSs are to be issued in the name of such person as executor or administrator of such decedent's estate, (2) the check tendered in payment of such subscription is drawn for the proper amount and to the order of The Bank Of New York City Timeand is otherwise in order, on and (3) there is no evidence actually known to the first full business day following Rights Agent indicating that such person is not the Expiration Time, advise the Company Representative in accordance with duly authorized representative which such person purports to be.
(be) above of the ADS Holders will only receive a whole number of shares Subscribed ADS Rights. The Rights Agent will aggregate and arrange for the sale of any right to subscribe any Shares underlying the fractional ADS Rights, and will distribute the number net proceeds, if any, of shares of Common Stock unsubscribed for.such sale pro rata to the ADS Holders entitled to them
Appears in 1 contract
Sources: Rights Agency Agreement (Gol Intelligent Airlines Inc.)
Acceptance of Subscriptions. Upon The acceptance of a Subscription, Continental shall from time to time during subscriptions is at the offering:
(a) Hold all monies received in a dedicated, non-interest bearing account for the benefit discretion of the Company. Promptly following the Expiration Time, Continental shall, upon the receipt of the Distribution Letter in the form attached hereto as Exhibit 3 and executed The Company may require additional information prior to determining whether to accept a subscription. Subscription payments should be made by the Company and Maxim Group LLC, distribute wire to the Company the funds from exercise of the Basic Subscription Rights and Over-Subscription Rights in such account and following the Expiration Date issue (in physical form or electronically through the facilities of DTC, in each case in a manner approved by the Company) certificates for shares of Common Stock issuable with respect to Subscriptions that have been accepted“Clean Energy Solutions”. Continental will not be obligated to calculate or pay interest to any holder or any other party claiming through a holder or otherwise. It is hereby agreed immediately following the effective date of the Subscription, immediately available funds, represented by certified check, money order, or Payments via wire transfer but not personal checkshould be made pursuant to instructions provided in Exhibit B hereto. For additional information or to have any questions answered, will be deposited with Continentalplease contact M▇. In the event that the Rights Offering is not consummated because the Company (i) has cancelled or terminated the Rights Offering or (ii) is unable to raise a minimum of $2,500,000 (net of expenses) in the Rights Offering prior to the Expiration Date (unless such minimum is waived or reduced by the Company’s board of directors and with the prior written consent of Maxim Group LLC (which consent will not be unreasonably withheld)), Continental shall, upon the receipt of the Liquidation Letter in the form attached hereto as Exhibit 4 and executed by the Company and Maxim Group LLC, liquidate the segregated account in which the subscription monies were held as promptly as practicable and distribute the funds to each respective subscribing stockholder who elected to exercise its Rights.
(b) Advise the Company daily by facsimile transmission and confirm by letter to the attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Company Representative”) as to the total number of shares of Common Stock Subscribed for, the total number of Rights partially Subscribed for and the amount of funds received, with cumulative totals for each; and in addition advise the Company RepresentativeCompany’s Chief Executive Officer, by telephone at (▇▇▇) ▇▇▇-▇▇▇▇▇ Ext. 814. No prospective investor will be deemed to have purchased any Securities unless and until such time as all of the following conditions to closing have occurred: (1) a Subscription Agreement and (2) a Purchaser Questionnaire have been fully completed and duly and validly executed by such prospective investor, confirmed delivered to the Company, and this Subscription Agreement is accepted in writing by facsimile transmissionthe Company and (3) the Purchase Price (as defined in the Subscription Agreement) shall have been paid in full. Ladies and Gentlemen: The undersigned understands that Clean Energy Technologies, Inc., incorporated under the laws of the State of Nevada (the “Company”), is offering units (each, a “Unit”) with each Unit consisting of one (1) share of common stock, par value $0.001, of the amount Company (the “Common Stock” to purchase one (1) share of funds received identified Common Stock, to the undersigned pursuant to the terms of this Subscription Agreement. The Common Stock issued thereunder, referred to as the “Securities”).The undersigned further understands that (i) the Offering is being made without registration of the Securities under the Securities Act of 1933, as amended (the “Securities Act”), and is being made only to “accredited investors” (as defined in accordance with Rule 501(a) of Regulation D under the Securities Act) under an exemption available under Rule 506(b) of Regulation D, and (aii) above, deposited, available the undersigned will not be deemed to have purchased any Units unless and until such time as all of the following conditions to closing have occurred: (A) this Subscription Agreement and such other supplemental subscription or transferred in accordance with (a) above, with cumulative totals; and
(c) As promptly stock purchase agreements or documentation 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 are requested by the Company Representative have been duly and validly executed by the undersigned, delivered to the Company and accepted by the Company (B) the undersigned has completed and executed a Purchaser Questionnaire and (C) the Purchase Price for the Units shall have been paid in accordance with (b) above of the number of shares Subscribed for and the number of shares of Common Stock unsubscribed forfull.
Appears in 1 contract
Sources: Subscription Agreement (Clean Energy Technologies, Inc.)
Acceptance of Subscriptions. Upon acceptance (a) The Company hereby authorizes and directs the ADS Rights Agent to accept subscriptions for New ADSs on behalf of a Subscriptionthe Company upon payment of the Subscription Price and the proper and timely return of the Exercise Notice in accordance with the terms set forth on the ADS Rights Statement and herewith. The Company further authorizes the ADS Rights Agent to refuse to accept, Continental in its discretion, any improperly completed or unexecuted Exercise Notice. Notwithstanding the foregoing, without further authorization from the Company, the ADS Rights Agent shall from time to time during accept, on or before the offeringExpiration Date, except where otherwise specified, any of the following:
(i) any subscription effected in accordance with the terms of the ADS Rights Statement and received by the ADS Rights Agent on or before the Expiration Date;
(ii) any subscription with respect to which a subscriber has failed to execute an Exercise Notice in the manner provided by the terms thereof, provided that (A) the subscriber has indicated on such Exercise Notice, or by written communication, the manner in which the subscriber wishes to subscribe and (B) proper payment has been made by such subscriber;
(iii) any subscription by payment of the Subscription Price accompanied by a check drawn on a U.S. bank, notwithstanding that such check may not be cleared prior to the Expiration Date, provided, however, that the ADS Rights Agent will not deliver the new ADRs evidencing the New ADSs to the subscribing party until such subscribing party’s check has cleared and provided, further, that in the event such party’s check does not clear, the ADS Rights Agent shall use its best efforts to sell such New ADSs to cover the payment for such subscription at a public or private sale, at such place or places and upon such terms as it may deem proper, and the ADS Rights Agent may allocate the proceeds of such sales for the account of the relevant subscriber upon an averaged or other practicable basis without regard to any distinctions among such subscribers because of exchange restrictions or otherwise.
(iv) any subscription by an individual (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by an individual (and not by a corporation, partnership or fiduciary) other than the subscriber, provided, that (a) Hold all monies received in a dedicated, non-interest bearing account for the benefit of the Company. Promptly following the Expiration Time, Continental shall, upon the receipt of the Distribution Letter in the form attached hereto as Exhibit 3 and Exercise Notice surrendered therewith has been duly executed by the Company subscriber, (b) the subscriber is the registered holder of such ADS Rights, (c) the check tendered in payment of such subscription is drawn on a U.S. bank for the proper amount and Maxim Group LLC, distribute to the Company the funds from exercise order of the Basic Subscription ADS Rights Agent, and Overis otherwise in order and (d) there is no evidence indicating that such check was delivered to the subscriber by the drawer thereof for any purpose other than the payment of the accompanying subscription;
(v) any subscription by a custodian on behalf of a minor which is accompanied by a check drawn by such custodian, if the provisos set forth in clause (iv) above are satisfied; and
(vii) any subscription by an individual, (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn on a U.S. bank by a corporation, partnership or fiduciary other than the subscriber, if the provisos set forth in clause (iv) above are satisfied.
(b) The Company authorizes the ADS Rights Agent to waive proof of authority to sign (including the right to waive signatures of co-Subscription Rights in such account fiduciaries and following the Expiration Date issue (in physical form proof of appointment or electronically through the facilities authority of DTC, in each case any fiduciary or other person acting in a manner approved by representative capacity) in connection with any Instruction to the Company) certificates for shares of Common Stock issuable ADS Rights Agent with respect to Subscriptions which:
(i) the ADS Rights Statement reflects ADS Rights registered in the name of an executor, administrator, trustee, custodian for a minor or other fiduciary and the Instruction to Agent with respect thereto has been executed by such registered holder, provided that have been accepted. Continental will not the New ADSs subscribed for are to be obligated to calculate issued in the name of, or pay interest to any holder or any other party claiming through a holder or otherwise. It is hereby agreed immediately following the effective date proceeds of the Subscriptionsale are to be paid to, immediately available fundsor Rights are to be delivered to the account of, represented such registered holder;
(ii) the ADS Rights Statement reflects ADS Rights registered in the name of a corporation and the Instruction to Agent with respect thereto has been executed by certified checkan officer of such corporation, money provided that the New ADSs subscribed for are to be issued in the name of, or proceeds of the sale are to be paid to, or Rights are to be delivered to the account of, such corporation;
(iii) the Instruction to Agent has been executed by a bank, trust company or broker as agent for the registered holder thereof, provided that the New ADSs subscribed for are to be issued in the name of, or proceeds of the sale are to be paid to, or Rights are to be delivered to the account of, such registered holder; or
(iv) the ADS Rights Statement reflects ADS Rights registered in the name of a decedent and the Instruction to Agent with respect thereto has been executed by a person who purports to act as the executor or administrator of such decedent’s estate, provided that (a) in case of an Exercise Notice, the subscription is for not more than 50 New ADSs, (b) the New ADSs are to be issued in the name of, or proceeds of the sale are to be paid to, or Rights are to be delivered to the account of, such person as executor or administrator of such decedent’s estate, (c) in case of an Exercise Notice, the check tendered in payment of the subscription is drawn for the proper amount and to the order of the ADS Rights Agent, and is otherwise in order, or wire transfer but and (d) there is no evidence indicating that such person is not personal checkthe duly authorized representative which such person purports to be. In all cases other than those described in clauses (i) through (iv) above, the ADS Rights Agent will be deposited required to obtain all necessary proof of authority to sign in connection with Continental. In Instructions to Agent; provided, however, that in the event that such proof of authority has not been received on or prior to the Expiration Date, the ADS Rights Offering is not consummated because Agent may obtain advice from the Company (i) has cancelled or terminated its U.S. counsel as to whether any such Instruction to Agent may be accepted and the ADS Rights Offering or (ii) is unable to raise a minimum of $2,500,000 (net of expenses) Agent shall have no liability whatsoever in the event it acts in good faith in accordance with such advice nor shall the ADS Rights Offering Agent be required to issue such New ADSs, sell such ADS Rights or cancel such ADS Rights and arrange for delivery of the underlying Rights, in the event it does not receive such advice from the Company prior to the Expiration Date (unless and shall have no liability whatsoever for any such minimum is waived or reduced by the Company’s board of directors and with the prior written consent of Maxim Group LLC (which consent will not be unreasonably withheld)), Continental shall, upon the receipt of the Liquidation Letter in the form attached hereto as Exhibit 4 and executed by the Company and Maxim Group LLC, liquidate the segregated account in which the subscription monies were held as promptly as practicable and distribute the funds to each respective subscribing stockholder who elected to exercise its Rightsaction.
(b) Advise the Company daily by facsimile transmission and confirm by letter to the attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Company Representative”) as to the total number of shares of Common Stock Subscribed for, the total number of Rights partially Subscribed for and the amount of funds received, with cumulative totals for each; and in addition advise the Company Representative, by telephone at (▇▇▇) ▇▇▇-▇▇▇▇, confirmed by facsimile transmission, 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 The Company authorizes the ADS Rights Agent to accept customary letters of indemnification from Eligible Institutions with respect to non-conforming aspects of documents delivered 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 connection with (b) above of the number of shares Subscribed for and the number of shares of Common Stock unsubscribed forInstructions to Agent.
Appears in 1 contract
Acceptance of Subscriptions. Upon acceptance 1. The Rights Agent is hereby authorized and directed to receive subscriptions for ADSs on behalf of a Subscription, Continental shall from time to time the Company throughout the Subscription Period. Any funds that the Rights Agent receives during the offeringSubscription Period from Owners in respect of payments for ADSs shall be deposited in an interest bearing account at the Rights Agent that the Rights Agent designates solely for such purpose (the “Deposit Account”). Such funds shall remain in the Deposit Account until they are distributed to the Company in accordance with Article VI, paragraph 1 hereof. As promptly as practicable after the Rights Agent receives each Owner’s Instruction, the Rights Agent shall determine whether the Owner sending such Owner’s Instruction has properly completed and executed such forms and has submitted the correct payment for the ADSs. If such form is not properly completed, is unexecuted or, if such Owner did not send the correct payment amount then the Rights Agent will send a notice to such Owner instructing such Owner to amend its Owner’s Instruction or submit the proper payment amount, as the case may be. Except as set forth in paragraph 3 below, if such Owner does not amend its Owner’s Instruction or submit the proper payment amount, as the case may be, by the Expiration Date, such Owner’s right to purchase ADSs in the Rights Offer shall be deemed to be unexercised. Notwithstanding the foregoing, without further authorization from the Company, except where otherwise specified or as otherwise notified in writing by the Company prior to the Expiration Date, the following Owner’s Instructions shall be deemed to be properly completed:
(a) Hold all monies received in a dedicated, non-interest bearing account for the benefit of the Company. Promptly following the Expiration Time, Continental shall, upon the receipt of the Distribution Letter any subscription with respect to which an Owner has failed to execute an Owner’s Instruction in the form attached hereto as Exhibit 3 manner provided by the terms thereof, provided that (1) the Owner has indicated on such Owner’s Instruction or by written communication, the manner in which the Owner wishes to subscribe and (2) proper payment has been made by such Owner;
(b) any subscription by an individual (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by an individual (and not by a corporation, partnership or fiduciary) other than the Owner, provided that (1) the Owner’s Instruction submitted therewith has been duly executed by the Company Owner, (2) the Owner is the Owner to which such Owner’s Instruction relates, (3) the check tendered in payment of such subscription is drawn for the proper amount and Maxim Group LLC, distribute to the Company order of The Bank of New York and is otherwise in order, and (4) there is no evidence actually known to the funds from exercise Rights Agent indicating that such check was delivered to the Owner by the drawer thereof for any purpose other than the payment of the Basic Subscription accompanying subscription;
(c) any subscription by a custodian on behalf of a minor which is accompanied by a check drawn by an individual (and not by a corporation, partnership or fiduciary) other than the Owner, if the provisos set forth in clause (b) above are satisfied; or
(d) any subscription by an individual (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by a corporation, partnership or fiduciary other than the Owner, if the provisos set forth in clause (b) above are satisfied.
2. The Rights and Over-Subscription Rights in such account and following the Expiration Date issue (in physical form or electronically through the facilities of DTC, in each case in a manner approved by the Company) certificates for shares of Common Stock issuable with respect to Subscriptions that have been accepted. Continental will not be obligated to calculate or pay interest to any holder or any other party claiming through a holder or otherwise. It Agent is hereby agreed immediately following the effective date authorized to accept subscriptions for ADSs on behalf of the Subscription, immediately available funds, represented by certified check, money order, or wire transfer but not personal check, will be deposited with Continental. In the event that the Rights Offering is not consummated because the Company (i) has cancelled or terminated on the Rights Offering or Expiration Date, (ii) after determining the total number of ADSs that an owner is unable entitled to raise a minimum of $2,500,000 (net of expenses) purchase in the Rights Offering prior Offer, pursuant to Article II hereof, and (iii) upon the Expiration Date (unless such minimum is waived or reduced by proper completion and execution of the CompanyOwner’s board of directors and Instruction, in accordance with the prior written consent terms thereof and hereof.
3. The Rights Agent is authorized to waive proof of Maxim Group LLC authority to sign (including the right to waive signatures of co-fiduciaries and proof of appointment or authority of any fiduciary or other person acting in a representative capacity) in connection with any subscription with respect to which:
(a) the ADSs to which consent will not be unreasonably withheld)), Continental shall, upon the receipt of the Liquidation Letter Owner’s Instruction relates are registered in the form attached hereto as Exhibit 4 name of an executor, administrator, trustee, custodian for a minor or other fiduciary and has been executed by such Owner provided that the Company and Maxim Group LLC, liquidate ADSs purchased are to be issued in the segregated account in which the subscription monies were held as promptly as practicable and distribute the funds to each respective subscribing stockholder who elected to exercise its Rights.name of such Owner;
(b) Advise the Company daily by facsimile transmission and confirm by letter ADSs to which the attention Owner’s Instructions relates are registered in the name of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Company Representative”) as to the total number of shares of Common Stock Subscribed for, the total number of Rights partially Subscribed for a corporation and the amount Owner’s Instruction has been executed by an officer of funds receivedsuch corporation, with cumulative totals for each; and provided that the ADSs purchased are to be issued in addition advise the Company Representative, by telephone at (▇▇▇) ▇▇▇-▇▇▇▇, confirmed by facsimile transmission, name of the amount of funds received identified in accordance with (a) above, deposited, available or transferred in accordance with (a) above, with cumulative totals; andsuch corporation;
(c) As promptly the Owner’s Instruction has been executed by a bank, trust company or broker as possible but agent for the Owner to which such Owner’s Instruction relates, provided that the ADSs purchased are to be issued in any event on the name of such Owner; or
(d) the ADSs to which such Owner’s Instructions relates are registered in the name of a decedent and the Owner’s Instruction has been executed by a person who purports to act as the executor or before 3:30 p.m.administrator of such decedent’s estate, provided that (1) the ADSs are to be issued in the name of such person as executor or administrator of such decedent’s estate, (2) the check tendered in payment of such subscription is drawn for the proper amount and to the order of The Bank Of New York City Timeand is otherwise in order, on and (3) there is no evidence actually known to the first full business day following Rights Agent indicating that such person is not the Expiration Time, advise the Company Representative in accordance with (b) above of the number of shares Subscribed for and the number of shares of Common Stock unsubscribed forduly authorized representative which such person purports to be.
Appears in 1 contract
Acceptance of Subscriptions. Upon acceptance 1. The Rights Agent is hereby authorized and directed to receive subscriptions for ADSs on behalf of the Company throughout the Subscription Period. If the Rights Agent has received a duly executed Notice of Guaranteed Delivery and payment of the related Deposit Amount during the Subscription Period, the Rights Agent is also authorized and directed to receive the ADS Rights Certificate to which that Notice of Guaranteed Delivery relates until 5:00 p.m. (New York City time) on October ___, 2006 (the “Guaranteed Delivery Date”) in accordance with the guaranteed delivery procedures agreed with the Company. Any funds that the Rights Agent receives during the Subscription Period from ADS Holders in respect of payments for ADSs shall be deposited in a non-interest bearing account at the Rights Agent that the Rights Agent designates solely for such purpose (the “Deposit Account”). Such funds shall remain in the Deposit Account until they are distributed to the Company in accordance with Article VI hereof.
2. As promptly as practicable after the Rights Agent receives each ADS Rights Certificate, the Rights Agent shall determine whether the Holder sending such ADS Rights Certificate has properly completed and executed such ADS Rights Certificate and has submitted the correct Deposit Amount for the ADSs. If such ADS Rights Certificate is not properly completed, is unexecuted or if such Holder did not send the correct Deposit Amount, then the Rights Agent will send a notice to such Holder instructing such Holder to amend its ADS Rights Certificate or submit the proper Deposit Amount, as the case may be. Except as set forth below in this Article IV, if such Holder does not amend its ADS Rights Certificate or submit the proper Deposit Amount, as the case may be, by the Expiration Date or, if applicable, the Guaranteed Delivery Date, such Holder’s right to purchase ADSs in the Rights Offer shall be deemed to be unexercised.
3. Notwithstanding the foregoing, without further authorization from the Company, except where otherwise specified or as otherwise notified in writing by the Company prior to the Expiration Date, an ADS Rights Certificate shall be deemed to be properly completed in any of the following circumstances: • any subscription with respect to which a Holder has failed to execute an ADS Rights Certificate in the manner provided by the terms thereof, provided that (1) the Holder has indicated on such ADS Rights Certificate or by written communication the manner in which the Holder wishes to subscribe and (2) proper payment has been made by such Holder; • any subscription by an individual (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by an individual (and not by a corporation, partnership or fiduciary) other than the Holder, provided that (1) the ADS Rights Certificate submitted therewith has been duly executed by the Holder, (2) the check tendered in payment of such subscription is drawn for the proper amount and to the order of The Bank of New York and is otherwise in order, and (3) there is no evidence actually known to the Rights Agent indicating that such check was delivered to the Holder by the drawer thereof for any purpose other than the payment of the accompanying subscription; • any subscription by a custodian on behalf of a Subscriptionminor which is accompanied by a check drawn by an individual (and not by a corporation, Continental shall from time partnership or fiduciary) other than the Holder, if the provisos set forth in clause (b) above are satisfied; or • any subscription by an individual (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by a corporation, partnership or fiduciary other than the Holder, if the provisos set forth in clause (b) above are satisfied.
4. The Rights Agent is authorized to time during waive proof of authority to sign (including the offeringright to waive signatures of co-fiduciaries and proof of appointment or authority of any fiduciary or other person acting in a representative capacity) in connection with any subscription with respect to which:
(a) Hold all monies received in a dedicated, non-interest bearing account for the benefit of ADSs to which the Company. Promptly following the Expiration Time, Continental shall, upon the receipt of the Distribution Letter ADS Rights Certificate relates are registered in the form attached hereto as Exhibit 3 name of an executor, administrator, trustee, custodian for a minor or other fiduciary and the ADS Rights Certificate has been executed by the Company and Maxim Group LLCsuch Holder, distribute to the Company the funds from exercise of the Basic Subscription Rights and Over-Subscription Rights in such account and following the Expiration Date issue (in physical form or electronically through the facilities of DTC, in each case in a manner approved by the Company) certificates for shares of Common Stock issuable with respect to Subscriptions that have been accepted. Continental will not be obligated to calculate or pay interest to any holder or any other party claiming through a holder or otherwise. It is hereby agreed immediately following the effective date of the Subscription, immediately available funds, represented by certified check, money order, or wire transfer but not personal check, will be deposited with Continental. In the event provided that the Rights Offering is not consummated because the Company (i) has cancelled or terminated the Rights Offering or (ii) is unable ADSs purchased are to raise a minimum of $2,500,000 (net of expenses) be issued in the Rights Offering prior to the Expiration Date (unless name of such minimum is waived or reduced by the Company’s board of directors and with the prior written consent of Maxim Group LLC (which consent will not be unreasonably withheld)), Continental shall, upon the receipt of the Liquidation Letter Holder in the form attached hereto as Exhibit 4 and executed by the Company and Maxim Group LLC, liquidate the segregated account in which the subscription monies were held as promptly as practicable and distribute the funds to each respective subscribing stockholder who elected to exercise its Rights.that same capacity;
(b) Advise the Company daily by facsimile transmission and confirm by letter ADSs to which the attention ADS Rights Certificate relates are registered in the name of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Company Representative”) as to the total number of shares of Common Stock Subscribed for, the total number of Rights partially Subscribed for a corporation and the amount ADS Rights Certificate has been executed by an officer of funds receivedsuch corporation, with cumulative totals for each; and provided that the ADSs purchased are to be issued in addition advise the Company Representative, by telephone at (▇▇▇) ▇▇▇-▇▇▇▇, confirmed by facsimile transmission, name of the amount of funds received identified in accordance with (a) above, deposited, available or transferred in accordance with (a) above, with cumulative totals; andsuch corporation;
(c) As promptly the ADS Rights Certificate has been executed by a bank, trust company or broker as possible but agent for the Holder, provided that the ADSs purchased are to be issued in any event on the name of such Holder; or
(d) the ADS Rights to which such ADS Rights Certificate relates are registered in the name of a decedent and the ADS Rights Certificate has been executed by a person who purports to act as the executor or before 3:30 p.m.administrator of such decedent’s estate, provided that (1) the ADSs are to be issued in the name of such person as executor or administrator of such decedent’s estate, (2) the check tendered in payment of such subscription is drawn for the proper amount and to the order of The Bank of New York City Timeand is otherwise in order, on and (3) there is no evidence actually known to the first full business day following Rights Agent indicating that such person is not the Expiration Time, advise the Company Representative in accordance with (b) above of the duly authorized representative which such person purports to be.
5. ADS Holders will only be entitled to subscribe for an integral number of shares Subscribed for and the number new ADSs. ADS Rights may not be exercised to purchase any fraction of shares of Common Stock unsubscribed fora new ADS.
Appears in 1 contract
Acceptance of Subscriptions. Upon acceptance a. The Company hereby authorizes and directs the Agent to accept subscriptions for New ADSs on behalf of the Company upon the surrender to it of a Subscriptionproperly completed and executed Warrant Certificate and payment of the ADS Subscription Price therefor in U.S. dollars, Continental shall in accordance with the terms thereof and hereof. The Company further authorizes the Agent to refuse to accept, in its discretion, any improperly completed or unexecuted Warrant Certificate. Notwithstanding the foregoing, without further authorization from time the Company, on or before the Expiration Date, the Agent may accept any subscription effected by payment in full of the ADS Subscription Price on or before the Expiration Date.
b. The Company authorizes the Agent to time during waive proof of authority to sign (including the offeringright to waive signatures of co-fiduciaries and proof of appointment or authority of any fiduciary or other person acting in a representative capacity) in connection with any subscription with respect to which:
(ai) Hold all monies received the surrendered Warrant Certificate is registered in the name of one or more individuals or an executor, administrator, trustee, custodian for a dedicatedminor or other fiduciary and has been executed by such registered holder or holders, non-interest bearing account provided that (A) the New ADS subscribed for are to be issued in the name of such registered holder or holders (B) the check tendered in payment of such subscription is drawn for the benefit proper amount and to the order of the Company. Promptly following Agent, and is otherwise in order, and (C) there is no evidence indicating that such person is not the Expiration Timeduly authorized representative which such person purports to be;
(ii) the surrendered Warrant Certificate is registered in the name of a corporation and has been executed by an officer of such corporation, Continental shall, upon provided that (A) the receipt New ADSs subscribed for are to be issued in the name of such corporation (B) the check tendered in payment of such subscription is drawn for the proper amount and to the order of the Distribution Letter Agent, and is otherwise in order, and (C) there is no evidence indicating that such person is not the duly authorized representative which such person purports to be;
(iii) the surrendered Warrant Certificate has been executed by a bank, trust company or broker as agent for the registered holder thereof, provided that (A) the New ADSs subscribed for are to be issued in the form attached hereto as Exhibit 3 name of such registered holder; and (B) the check tendered in payment of such subscription is drawn for the proper amount and to the order of the Agent, and is otherwise in order, and (C) there is no evidence indicating that such person is not the duly authorized representative which such person purports to be; or
(iv) the surrendered Warrant Certificate is registered in the name of a decedent and has been executed by a person who purports to act as the Company executor or administrator of such decedent's estate, provided that (A) the New ADSs are to be issued in the name of such person as executor or administrator of such decedent's estate, (B) the check tendered in payment of such subscription is drawn for the proper amount and Maxim Group LLC, distribute to the Company the funds from exercise order of the Basic Subscription Rights Agent, and Over-Subscription Rights is otherwise in such account and following the Expiration Date issue (in physical form or electronically through the facilities of DTC, in each case in a manner approved by the Company) certificates for shares of Common Stock issuable with respect to Subscriptions that have been accepted. Continental will not be obligated to calculate or pay interest to any holder or any other party claiming through a holder or otherwise. It is hereby agreed immediately following the effective date of the Subscription, immediately available funds, represented by certified check, money order, or wire transfer but and (C) there is no evidence indicating that such person is not personal check, will be deposited with Continentalthe duly authorized representative which such person purports to be. In all cases other than those described in clauses (i) through (iv) above, the Agent will obtain all necessary proof of authority to sign in connection with the subscriptions for New ADSs, provided, however, that in the event that the Rights Offering is such proof of authority has not consummated because the Company (i) has cancelled been received on or terminated the Rights Offering or (ii) is unable to raise a minimum of $2,500,000 (net of expenses) in the Rights Offering prior to the Expiration Date Date, the Agent shall obtain advice from the Company as to whether any such subscriptions may be accepted.
c. The Company authorizes the Agent to accept customary letters of indemnification from commercial banks, trust companies or any member of the Securities Transfer Agents Medallion Program (unless such minimum is waived STAMP), the Stock Exchange Medallion Program (SEMP) or reduced the New York Stock Exchange, Inc. Medallion Signature program (MSP).
d. The Agent shall establish procedures pursuant to which persons holding ADSs through The Depository Trust Company ("DTC") may exercise their ADS Rights by the Company’s board timely delivery to the Agent of directors complete subscription instructions through DTC's PSOP Function on the "agent subscriptions over PTS" procedure ("Subscription Instructions" and with the prior written consent of Maxim Group LLC (which consent will not be unreasonably withheld))"ASOP", Continental shall, upon the receipt respectively) accompanied by timely payment in full of the Liquidation Letter ADS Subscription Price for each New ADS to be purchased. All Subscription Instructions and payment of the ADS Subscription Price for the subscribed New ADSs must be received by the Agent prior to the Expiration Date.
e. Holders of ADS Rights may exercise all or part of their ADS Rights at their discretion. However, subscriptions will be accepted for whole New ADSs only and no fractional New ADSs will be issued. The Agent is hereby instructed to round down to the nearest whole number of New ADS subscriptions submitted for fractional New ADSs. The Agent will, to the extent permitted by law, sell or cause to be sold, the Primary ADS Rights corresponding to the average of fractional Primary ADS Rights not exercised for the pro rata benefit of the Holders entitled thereto.
f. Holders, of record as of the Record Date, of ADS Rights may exercise their Secondary ADS Rights by specifying an additional number of New ADSs that they would subscribe for in the form attached hereto as Exhibit 4 and executed by the Company and Maxim Group LLC, liquidate the segregated account in which the subscription monies were held as promptly as practicable and distribute the funds to each respective subscribing stockholder who elected to exercise its Rights.
(b) Advise the Company daily by facsimile transmission and confirm by letter event that any new Shares are not subscribed for pursuant to the attention exercise by Shareholders of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Company Representative”) as Primary Share Rights. The number of additional New ADSs that will be available pursuant to the total number exercise by Holders of shares Secondary ADS Rights will depend on the level of Common Stock Subscribed for, demand for the total number of Rights partially Subscribed for Shares and the amount New ADSs pursuant to the exercise by Shareholders of funds received, with cumulative totals for each; and in addition advise the Company Representative, by telephone at (▇▇▇) ▇▇▇-▇▇▇▇, confirmed by facsimile transmission, of the amount of funds received identified in accordance with (a) above, deposited, available or transferred in accordance with (a) above, with cumulative totals; Primary Share Rights 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 Subscribed for and the number of shares of Common Stock unsubscribed for.
Appears in 1 contract
Acceptance of Subscriptions. Upon acceptance 1. The Rights Agent is hereby authorized and directed to receive subscriptions for ADSs on behalf of a Subscription, Continental shall from time the Company throughout the Subscription Period and to time receive ADS Rights Certificates until 5:00 p.m. (New York City time) on the Expiration Date. Any funds that the Rights Agent receives during the offeringSubscription Period from ADS Holders in respect of payments for ADSs shall be deposited in a non-interest bearing account at the Rights Agent that the Rights Agent designates solely for such purpose (the "Deposit Account"). Such funds shall remain in the Deposit Account until they are distributed to the Company in accordance with Article VI hereof.
2. As promptly as practicable after the Rights Agent receives each ADS Rights Certificate, the Rights Agent shall determine whether the Holder sending such ADS Rights Certificate has properly completed and executed such ADS Rights Certificate and has submitted the correct payment for the ADSs. If such ADS Rights Certificate is not properly completed, is unexecuted or if such Holder did not send the correct payment amount, then the Rights Agent will send a notice to such Holder instructing such Holder to amend its ADS Rights Certificate or submit the proper payment amount, as the case may be. Except as set forth below in this Article IV, if such Holder does not amend its ADS Rights Certificate or submit the proper payment amount, as the case may be, by the Expiration Date, such Holder's right to purchase ADSs in the Rights Offer shall be deemed to be unexercised.
3. Notwithstanding the foregoing, without further authorization from the Company, except where otherwise specified or as otherwise notified in writing by the Company prior to the Expiration Date, an ADS Rights Certificate shall be deemed to be properly completed in any of the following circumstances:
(a) Hold all monies received in a dedicated, non-interest bearing account for the benefit of the Company. Promptly following the Expiration Time, Continental shall, upon the receipt of the Distribution Letter in the form attached hereto as Exhibit 3 and executed by the Company and Maxim Group LLC, distribute to the Company the funds from exercise of the Basic Subscription Rights and Over-Subscription Rights in such account and following the Expiration Date issue (in physical form or electronically through the facilities of DTC, in each case in a manner approved by the Company) certificates for shares of Common Stock issuable any subscription with respect to Subscriptions that have been accepted. Continental will not be obligated which a Holder has failed to calculate or pay interest to any holder or any other party claiming through a holder or otherwise. It is hereby agreed immediately following the effective date of the Subscription, immediately available funds, represented by certified check, money order, or wire transfer but not personal check, will be deposited with Continental. In the event that the execute an ADS Rights Offering is not consummated because the Company (i) has cancelled or terminated the Rights Offering or (ii) is unable to raise a minimum of $2,500,000 (net of expenses) Certificate in the Rights Offering prior to the Expiration Date (unless such minimum is waived or reduced manner provided by the Company’s board of directors and with terms thereof, provided that (1) the prior Holder has indicated on such ADS Rights Certificate or by written consent of Maxim Group LLC (which consent will not be unreasonably withheld)), Continental shall, upon communication the receipt of the Liquidation Letter in the form attached hereto as Exhibit 4 and executed by the Company and Maxim Group LLC, liquidate the segregated account manner in which the subscription monies were held as promptly as practicable Holder wishes to subscribe and distribute the funds to each respective subscribing stockholder who elected to exercise its Rights.(2) proper payment has been made by such Holder;
(b) Advise any subscription by an individual (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by an individual (and not by a corporation, partnership or fiduciary) other than the Company daily Holder, provided that (1) the ADS Rights Certificate submitted therewith has been duly executed by facsimile transmission the Holder, (2) the check tendered in payment of such subscription is drawn for the proper amount and confirm by letter to the attention order of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ The Bank of New York and is otherwise in order, and (the “Company Representative”3) as there is no evidence actually known to the total number of shares of Common Stock Subscribed for, Rights Agent indicating that such check was delivered to the total number of Rights partially Subscribed Holder by the drawer thereof for and any purpose other than the amount of funds received, with cumulative totals for each; and in addition advise the Company Representative, by telephone at (▇▇▇) ▇▇▇-▇▇▇▇, confirmed by facsimile transmission, payment of the amount of funds received identified in accordance with (a) above, deposited, available or transferred in accordance with (a) above, with cumulative totals; andaccompanying subscription;
(c) As promptly as possible but any subscription by a custodian on behalf of a minor which is accompanied by a check drawn by an individual (and not by a corporation, partnership or fiduciary) other than the Holder, if the provisos set forth 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 clause (b) above are satisfied; or
(d) any subscription by an individual (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by a corporation, partnership or fiduciary other than the Holder, if the provisos set forth in clause (b) above are satisfied.
4. The Rights Agent is authorized to waive proof of authority to sign (including the right to waive signatures of co-fiduciaries and proof of appointment or authority of any fiduciary or other person acting in a representative capacity) in connection with any subscription with respect to which:
(a) the ADSs to which the ADS Rights Certificate relates are registered in the name of an executor, administrator, trustee, custodian for a minor or other fiduciary and the ADS Rights Certificate has been executed by such Holder, provided that the ADSs purchased are to be issued in the name of such Holder in that same capacity;
(b) the ADSs to which the ADS Rights Certificate relates are registered in the name of a corporation and the ADS Rights Certificate has been executed by an officer of such corporation, provided that the ADSs purchased are to be issued in the name of such corporation;
(c) the ADS Rights Certificate has been executed by a bank, trust company or broker as agent for the Holder, provided that the ADSs purchased are to be issued in the name of such Holder; or
(d) the ADS Rights to which such ADS Rights Certificate relates are registered in the name of a decedent and the ADS Rights Certificate has been executed by a person who purports to act as the executor or administrator of such decedent's estate, provided that (1) the ADSs are to be issued in the name of such person as executor or administrator of such decedent's estate, (2) the check tendered in payment of such subscription is drawn for the proper amount and to the order of The Bank of New York and is otherwise in order, and (3) there is no evidence actually known to the Rights Agent indicating that such person is not the duly authorized representative which such person purports to be.
5. ADS Holders will only receive a whole number of shares Subscribed ADS Rights. The Rights Agent will aggregate and arrange for the sale of any fractional ADS Rights (or the underlying Share right), and will distribute the number net proceeds, if any, of shares of Common Stock unsubscribed forsuch sale pro rata to the ADS Holders entitled to them.
Appears in 1 contract
Sources: Rights Agency Agreement (Embratel Participacoes Sa)
Acceptance of Subscriptions. Upon acceptance of a Subscription, Continental shall from time to time during the offering:
(a) Hold all monies received in a dedicated, non-interest bearing escrow account for the benefit of the Company. Promptly following the Expiration Time, Continental shall, upon the receipt of the Distribution Letter in the form attached hereto as Exhibit 3 and executed by the Company and Maxim Group LLCCompany, distribute to the Company the funds from exercise of the Basic Subscription Rights and Over-Subscription Rights in such account and following the Expiration Date issue (in physical form or electronically through the facilities of DTC, in each case in a manner approved by the Company) certificates for shares of Common Stock and Preferred Stock comprising the Units issuable with respect to Subscriptions that have been accepted. Continental will not be obligated to calculate or pay interest to any holder or any other party claiming through a holder or otherwise. It is hereby agreed immediately following the effective date of the Subscription, immediately available funds, represented by certified check, money order, or wire transfer but not personal check, will be deposited with ContinentalContinental in accordance with Exhibit 7. In the event that the Rights Offering is not consummated because the Company (i) has withdrawn, cancelled or terminated the Rights Offering or (ii) is unable to raise a minimum of $2,500,000 (net of expenses) in the Rights Offering prior to the Expiration Date (unless such minimum is waived or reduced by the Company’s board of directors and with the prior written consent of Maxim Group LLC (which consent will not be unreasonably withheld))Offering, Continental shall, upon the receipt of the Liquidation Letter in the form attached hereto as Exhibit 4 and executed by the Company and Maxim Group LLCCompany, liquidate the segregated account in which the subscription monies were held as promptly as practicable and distribute the funds to each respective subscribing stockholder who elected to exercise its Rights.
(b) Advise the Company daily by facsimile transmission and confirm by letter to the attention of ▇▇A▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Company Representative”) as to the total number of shares of Common Stock Subscribed for, the total number of Rights partially Units Subscribed for and the amount of funds received, with cumulative totals for each; and in addition advise the Company Representative, by telephone at (▇▇▇) ▇▇▇-▇▇▇▇, confirmed by facsimile transmissione-mail transmission to A▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇, of the amount of funds received identified in accordance with (a) above, deposited, available 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 Units Subscribed for and the number of shares of Common Stock unsubscribed forUnits unsubscribed.
Appears in 1 contract
Sources: Subscription and Escrow Agent Agreement (Enzon Pharmaceuticals, Inc.)
Acceptance of Subscriptions. Upon acceptance 1. The Rights Agent is hereby authorized and directed to receive subscriptions for ADSs on behalf of a Subscriptionthe Company throughout the Subscription Period and to receive ADS Rights Certificates until 5:00 p.m. (New York City time) on December 15, Continental shall from time to time 2004 (the "Guaranteed Delivery Date") in accordance with the guaranteed delivery procedures agreed with the Company. Any funds that the Rights Agent receives during the offeringSubscription Period from ADS Holders in respect of payments for ADSs shall be deposited in a non-interest bearing account at the Rights Agent that the Rights Agent designates solely for such purpose (the "Deposit Account"). Such funds shall remain in the Deposit Account until they are distributed to the Company in accordance with Article VI hereof.
2. As promptly as practicable after the Rights Agent receives each ADS Rights Certificate, the Rights Agent shall determine whether the Holder sending such ADS Rights Certificate has properly completed and executed such ADS Rights Certificate and has submitted the correct payment for the ADSs. If such ADS Rights Certificate is not properly completed, is unexecuted or if such Holder did not send the correct payment amount, then the Rights Agent will send a notice to such Holder instructing such Holder to amend its ADS Rights Certificate or submit the proper payment amount, as the case may be. Except as set forth below in this Article IV, if such Holder does not amend its ADS Rights Certificate or submit the proper payment amount, as the case may be, by the Expiration Date, such Holder's right to purchase ADSs in the Rights Offer shall be deemed to be unexercised.
3. Notwithstanding the foregoing, without further authorization from the Company, except where otherwise specified or as otherwise notified in writing by the Company prior to the Expiration Date, an ADS Rights Certificate shall be deemed to be properly completed in any of the following circumstances:
(a) Hold all monies received in a dedicated, non-interest bearing account for the benefit of the Company. Promptly following the Expiration Time, Continental shall, upon the receipt of the Distribution Letter in the form attached hereto as Exhibit 3 and executed by the Company and Maxim Group LLC, distribute to the Company the funds from exercise of the Basic Subscription Rights and Over-Subscription Rights in such account and following the Expiration Date issue (in physical form or electronically through the facilities of DTC, in each case in a manner approved by the Company) certificates for shares of Common Stock issuable any subscription with respect to Subscriptions that have been accepted. Continental will not be obligated which a Holder has failed to calculate or pay interest to any holder or any other party claiming through a holder or otherwise. It is hereby agreed immediately following the effective date of the Subscription, immediately available funds, represented by certified check, money order, or wire transfer but not personal check, will be deposited with Continental. In the event that the execute an ADS Rights Offering is not consummated because the Company (i) has cancelled or terminated the Rights Offering or (ii) is unable to raise a minimum of $2,500,000 (net of expenses) Certificate in the Rights Offering prior to the Expiration Date (unless such minimum is waived or reduced manner provided by the Company’s board of directors and with terms thereof, provided that (1) the prior Holder has indicated on such ADS Rights Certificate or by written consent of Maxim Group LLC (which consent will not be unreasonably withheld)), Continental shall, upon communication the receipt of the Liquidation Letter in the form attached hereto as Exhibit 4 and executed by the Company and Maxim Group LLC, liquidate the segregated account manner in which the subscription monies were held as promptly as practicable Holder wishes to subscribe and distribute the funds to each respective subscribing stockholder who elected to exercise its Rights.(2) proper payment has been made by such Holder;
(b) Advise any subscription by an individual (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by an individual (and not by a corporation, partnership or fiduciary) other than the Company daily Holder, provided that (1) the ADS Rights Certificate submitted therewith has been duly executed by facsimile transmission the Holder, (2) the check tendered in payment of such subscription is drawn for the proper amount and confirm by letter to the attention order of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ The Bank of New York and is otherwise in order, and (the “Company Representative”3) as there is no evidence actually known to the total number of shares of Common Stock Subscribed for, Rights Agent indicating that such check was delivered to the total number of Rights partially Subscribed Holder by the drawer thereof for and any purpose other than the amount of funds received, with cumulative totals for each; and in addition advise the Company Representative, by telephone at (▇▇▇) ▇▇▇-▇▇▇▇, confirmed by facsimile transmission, payment of the amount of funds received identified in accordance with (a) above, deposited, available or transferred in accordance with (a) above, with cumulative totals; andaccompanying subscription;
(c) As promptly as possible but any subscription by a custodian on behalf of a minor which is accompanied by a check drawn by an individual (and not by a corporation, partnership or fiduciary) other than the Holder, if the provisos set forth 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 clause (b) above are satisfied; or
(d) any subscription by an individual (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by a corporation, partnership or fiduciary other than the Holder, if the provisos set forth in clause (b) above are satisfied.
4. The Rights Agent is authorized to waive proof of authority to sign (including the right to waive signatures of co-fiduciaries and proof of appointment or authority of any fiduciary or other person acting in a representative capacity) in connection with any subscription with respect to which:
(a) the ADSs to which the ADS Rights Certificate relates are registered in the name of an executor, administrator, trustee, custodian for a minor or other fiduciary and the ADS Rights Certificate has been executed by such Holder, provided that the ADSs purchased are to be issued in the name of such Holder in that same capacity;
(b) the ADSs to which the ADS Rights Certificate relates are registered in the name of a corporation and the ADS Rights Certificate has been executed by an officer of such corporation, provided that the ADSs purchased are to be issued in the name of such corporation;
(c) the ADS Rights Certificate has been executed by a bank, trust company or broker as agent for the Holder, provided that the ADSs purchased are to be issued in the name of such Holder; or
(d) the ADS Rights to which such ADS Rights Certificate relates are registered in the name of a decedent and the ADS Rights Certificate has been executed by a person who purports to act as the executor or administrator of such decedent's estate, provided that (1) the ADSs are to be issued in the name of such person as executor or administrator of such decedent's estate, (2) the check tendered in payment of such subscription is drawn for the proper amount and to the order of The Bank of New York and is otherwise in order, and (3) there is no evidence actually known to the Rights Agent indicating that such person is not the duly authorized representative which such person purports to be.
5. ADS Holders will only receive a whole number of shares Subscribed ADS Rights. The Rights Agent will aggregate and arrange for the sale of any fractional ADS Rights, and will distribute the number net proceeds, if any, of shares of Common Stock unsubscribed forsuch sale pro rata to the ADS Holders entitled to them.
Appears in 1 contract
Sources: Rights Agency Agreement (Telesp Cellular Holding Co /Adr/)
Acceptance of Subscriptions. Upon acceptance (a) The Company hereby authorizes and directs the ADR Rights Agent to accept subscriptions for New ADSs on behalf of a Subscriptionthe Company upon payment of the Subscription Price and the exercise of ADR Rights Certificates in accordance with the terms thereof and hereof. The Company further authorizes the ADR Rights Agent to refuse to accept, Continental in its discretion, any improperly completed or unexecuted ADR Rights Certificate. Notwithstanding the foregoing, without further authorization from the Company, the ADR Rights Agent shall from time to time during accept, on or before the offeringExpiration Date, except where otherwise specified, any of the following:
(ai) Hold all monies any subscription effected in accordance with the terms of the ADR Rights Certificates and received by the ADR Rights Agent on or before the Expiration Date;
(ii) any subscription with respect to which a subscriber has failed to execute an ADR Rights Certificate in the manner provided by the terms thereof, provided that (A) the subscriber has indicated on such ADR Rights Certificate, or by written communication, the manner in which the subscriber wishes to subscribe and (B) proper payment has been made by such subscriber;
(iii) any subscription by payment of the Subscription Price accompanied by a dedicatedcheck drawn on a U.S. bank, non-interest bearing account notwithstanding that such check may not be cleared prior to the Expiration Date, provided, however, that the ADR Rights Agent will not deliver the new ADRs evidencing the New ADSs to the subscribing party until such subscribing party's check has cleared and provided, further, that in the event such party's check does not clear, the ADR Rights Agent shall use its best efforts to sell such New ADSs to cover the payment for such subscription at a public or private sale, at such place or places and upon such terms as it may deem proper, and the ADR Rights Agent may allocate the proceeds of such sales for the benefit account of the Company. Promptly following subscriber upon an averaged or other practicable basis without regard to any distinctions among such subscribers because of exchange restrictions or otherwise, and provided, further, that if such proceeds of sale are insufficient to cover the Expiration Timepayment for such subscription, Continental shallthe Company shall indemnify the ADR Rights Agent against any losses it may incur in the event such check is not cleared by the paying bank; In connection with any funds advanced by the ADR Rights Agent pending clearance (or failure of clearance) of any checks, upon the receipt Company shall reimburse, and pay, the ADR Rights Agent any and all of the Distribution Letter its expenses incurred in connection therewith plus interest on all funds advanced as if such advanced funds were in the form attached hereto as Exhibit 3 of a loan by the ADR Rights Agent to the Company.
(iv) any subscription by an individual (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by an individual (and not by a corporation, partnership or fiduciary) other than the subscriber, provided, that (a) the ADR Rights Certificate surrendered therewith has been duly executed by the Company subscriber, (b) the subscriber is the registered holder of such ADR Rights Certificate, (c) the check tendered in payment of such subscription is drawn for the proper amount and Maxim Group LLC, distribute to the Company the funds from exercise order of the Basic Subscription ADR Rights Agent, and Overis otherwise in order and (d) there is no evidence indicating that such check was delivered to the subscriber by the drawer thereof for any purpose other than the payment of the accompanying subscription;
(v) any subscription by a custodian on behalf of a minor which is accompanied by a check drawn by such custodian, if the provisos set forth in clause (iv) above are satisfied; and
(vii) any subscription by an individual, (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by a corporation, partnership or fiduciary other than the subscriber, if the provisos set forth in clause (iv) above are satisfied.
(b) The Company authorizes the ADR Rights Agent to waive proof of authority to sign (including the right to waive signatures of co-Subscription Rights in such account fiduciaries and following the Expiration Date issue (in physical form proof of appointment or electronically through the facilities authority of DTC, in each case any fiduciary or other person acting in a manner approved by the Companyrepresentative capacity) certificates for shares of Common Stock issuable in connection with any subscription with respect to Subscriptions which:
(i) the surrendered ADR Rights Certificate is registered in the name of an executor, administrator, trustee, custodian for a minor or other fiduciary and has been executed by such registered holder, provided that have the New ADSs subscribed for are to be issued in the name of such registered holder;
(ii) the surrendered ADR Rights Certificate is registered in the name of a corporation and has been accepted. Continental will executed by an officer of such corporation, provided that the New ADSs subscribed for are to be issued in the name of such corporation; or
(iii) the surrendered ADR Rights Certificate has been executed by a bank, trust company or broker as agent for the registered holder thereof, provided that the New ADSs subscribed for are to be issued in the name of such registered holder; or
(iv) the surrendered ADR Rights Certificate is registered in the name of a decedent and has been executed by a person who purports to act as the executor or administrator of such decedent's estate, provided that (a) such subscription is for not more than 50 New ADSs, (b) the New ADSs are to be obligated issued in the name of such person as executor or administrator of such decedent's estate, (c) the check tendered in payment of such subscription is drawn for the proper amount and to calculate or pay interest to any holder or any other party claiming through a holder or otherwise. It is hereby agreed immediately following the effective date order of the SubscriptionADR Rights Agent, immediately available funds, represented by certified check, money and is otherwise in order, or wire transfer but and (d) there is no evidence indicating that such person is not personal checkthe duly authorized representative which such person purports to be. In all cases other than those described in clauses (i) through (iv) above, the ADR Rights Agent will be deposited required to obtain all necessary proof of authority to sign in connection with Continental. In subscriptions for New ADSs; provided, however, that in the event that such proof of authority has not been received on or prior to the Expiration Date, the ADR Rights Offering is not consummated because Agent may obtain advice from the Company (i) has cancelled or terminated its U.S. counsel as to whether any such subscriptions may be accepted and the ADR Rights Offering or (ii) is unable to raise a minimum of $2,500,000 (net of expenses) Agent shall have no liability whatsoever in the event it acts in good faith in accordance with such advice nor shall the ADR Rights Offering Agent be required to issue such New ADSs in the event it does not receive such advice from the Company prior to the Expiration Date (unless and shall have no liability whatsoever for any such minimum is waived or reduced by the Company’s board of directors and with the prior written consent of Maxim Group LLC (which consent will not be unreasonably withheld)), Continental shall, upon the receipt of the Liquidation Letter in the form attached hereto as Exhibit 4 and executed by the Company and Maxim Group LLC, liquidate the segregated account in which the subscription monies were held as promptly as practicable and distribute the funds to each respective subscribing stockholder who elected to exercise its Rightsaction.
(b) Advise the Company daily by facsimile transmission and confirm by letter to the attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Company Representative”) as to the total number of shares of Common Stock Subscribed for, the total number of Rights partially Subscribed for and the amount of funds received, with cumulative totals for each; and in addition advise the Company Representative, by telephone at (▇▇▇) ▇▇▇-▇▇▇▇, confirmed by facsimile transmission, 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 The Company authorizes the ADR Rights Agent to accept customary letters of indemnification from Eligible Institutions with respect to non-conforming aspects of documents delivered in any event on or before 3:30 p.m., connection with subscriptions for 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 Subscribed for and the number of shares of Common Stock unsubscribed forADSs.
Appears in 1 contract
Sources: Supplemental Agreement (Distribution & Service D&s Sa)
Acceptance of Subscriptions. Upon acceptance a. The Company hereby authorizes and directs the Agent to accept subscriptions for New ADSs on behalf of the Company upon (i) the proper completion and execution of an ADS Subscription Form, surrender of the applicable ADS Subscription Form and delivery of the ADS Subscription Deposit Price for the New ADSs, in accordance with the terms thereof and hereof or (ii) receipt of the applicable instructions via DTC’s applicable function together with delivery of the ADS Subscription Deposit Price, in each case including subscriptions pursuant to the Overallotment Option subject to the conditions stated in the Prospectus. The Company further authorizes the Agent to refuse to accept, in its reasonable discretion, any improperly completed or improperly executed ADS Subscription Form. All subscriptions for New ADSs are irrevocable and may not be cancelled or modified.
b. The Company authorizes the Agent to waive proof of authority to sign (including the right to waive signatures of co-fiduciaries and proof of appointment or authority of any fiduciary or other person acting in a Subscription, Continental shall from time representative capacity) in connection with any subscription with respect to time during the offeringwhich:
(ai) Hold all monies received the surrendered ADS Subscription Form is registered in the name of one or more individuals or an executor, administrator, trustee, custodian for a dedicatedminor or other fiduciary and has been executed by such registered holder or holders, non-interest bearing account provided that the New ADSs subscribed for are to be issued in the name of such registered holder or holders;
(ii) the surrendered ADS Subscription Form is registered in the name of a corporation and has been executed by an officer of such corporation, provided that the New ADSs subscribed for are to be issued in the name of such corporation;
(iii) the surrendered ADS Subscription Form has been executed by a bank, trust company or broker as agent for the benefit registered holder thereof, provided that the New ADSs subscribed for are to be issued in the name of such registered holder; and
(iv) the surrendered ADS Subscription Form is registered in the name of a decedent and has been executed by a person who purports to act as the executor or administrator of such decedent’s estate, provided that (A) such subscription is for not more than 10 New ADSs, (B) the New ADSs are to be issued in the name of such person as executor or administrator of such decedent’s estate, (C) the check tendered in payment of such subscription is drawn for the proper amount and to the order of the CompanyAgent, and is otherwise in order, and (D) there is no evidence indicating that such person is not the duly authorized representative which such person purports to be. Promptly following In all cases other than those described in clauses (i) through (iv) above, the Agent will obtain all necessary proof of authority to sign in connection with the subscriptions for New ADSs, provided, however, that in the event that such proof of authority has not been received on or prior to the Expiration TimeDate, Continental shallthe Agent shall obtain advice from the Company as to whether any such subscriptions may be accepted.
c. The Company authorizes the Agent to accept customary letters of indemnification from commercial banks, upon trust companies or eligible guarantor institutions that are members of a Medallion Signature Guarantee Program with respect to nonconforming aspects of documents delivered in connection with subscriptions for New ADSs.
d. On each Business Day during the receipt ADS Subscription Period, the Agent shall deposit in an account designated by the Agent the aggregate amount of the Distribution Letter in the form attached hereto as Exhibit 3 and executed ADS Subscription Deposit Price received by the Company and Maxim Group LLCAgent on such day in respect of payments made upon exercise of ADS Rights.
e. As contemplated in Section 2(b) above, distribute subject to the Company ADS Rights not being fully subscribed, ADS Rights holders who validly exercise all of their ADS Rights will be entitled to subscribe for additional New ADSs pursuant to the funds from exercise Overallotment Option. The number of New ADSs that will be available for allocation pursuant to the Basic Subscription Rights and Over-Subscription Rights in such account and Overallotment Option will be determined following the Expiration Date issue on the basis of the following formula (in physical form or electronically through the facilities “Overallotment ADSs”): The Overallotment ADSs will be pro-rated among the over-subscribing ADS Rights holders on the basis of DTCthe ADS Rights exercised by such holders. Any fractional New ADSs that would otherwise be allocable to an ADS Rights holder pursuant to the Overallotment Option will be rounded down to the nearest whole number, in each case in a manner approved by the Company) certificates for shares of Common Stock issuable with respect to Subscriptions that have been accepted. Continental will not be obligated to calculate or pay interest to any holder or any other party claiming through a holder or otherwise. It is hereby agreed immediately following the effective date of the Subscription, immediately available funds, represented by certified check, money order, or wire transfer but not personal check, issued and will be deposited with Continental. In the event that the Rights Offering is not consummated because the Company (i) has cancelled or terminated the Rights Offering or (ii) is unable to raise a minimum of $2,500,000 (net of expenses) in the Rights Offering prior to the Expiration Date (unless such minimum is waived or reduced by the Company’s board of directors and with the prior written consent of Maxim Group LLC (which consent will not be unreasonably withheld)), Continental shall, upon the receipt of the Liquidation Letter in the form attached hereto as Exhibit 4 and executed by the Company and Maxim Group LLC, liquidate the segregated account in which the subscription monies were held as promptly as practicable and distribute the funds to each respective subscribing stockholder who elected to exercise its Rightslapse without compensation.
(b) Advise the Company daily by facsimile transmission and confirm by letter to the attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Company Representative”) as to the total number of shares of Common Stock Subscribed for, the total number of Rights partially Subscribed for and the amount of funds received, with cumulative totals for each; and in addition advise the Company Representative, by telephone at (▇▇▇) ▇▇▇-▇▇▇▇, confirmed by facsimile transmission, 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 Subscribed for and the number of shares of Common Stock unsubscribed for.
Appears in 1 contract
Acceptance of Subscriptions. Upon acceptance 4.1. The ADS Warrant Agent is hereby authorized and directed to receive subscriptions for New ADSs on behalf of the Company throughout the Subscription Period. Holders shall make payment to the ADS Warrant Agent of the Deposit Amount in U.S. dollars. Such payment must be received by the ADS Warrant Agent no later than 5:00 p.m., New York time, on the Expiration Date. Any funds that the ADS Warrant Agent receives during the Subscription Period from Holders in respect of payments for New ADSs shall be deposited in an account at the ADS Warrant Agent that the ADS Warrant Agent designates solely for such purpose (the “Deposit Account”) and such funds shall remain in the Deposit Account until they are distributed in accordance with Section 6.2. As promptly as practicable after the ADS Warrant Agent receives each Subscription Form, the ADS Warrant Agent shall determine whether the Holder sending such Subscription Form has properly completed and executed such form and has submitted the correct Deposit Amount for the New ADSs. If such form is not properly completed, is unexecuted or if such Holder did not send the correct Deposit Amount, then the ADS Warrant Agent will send a notice to such Holder requesting such Holder to correct its Subscription Form or submit the proper Deposit Amount, as the case may be. If such Holder does not correct its Subscription Form or submit the proper Deposit Amount, as the case may be, by the Expiration Date, such Holder’s right to purchase New ADSs in the ADS Warrants Offer shall be deemed to be unexercised and the ADS Warrant Agent shall promptly refund the amount deposited to such Holder. The ADS Warrant Agent will require that payment of the Deposit Amount be in the form of a Subscriptioncertified or official bank check, Continental money order or wire transfer. Notwithstanding the foregoing, without further authorization from the Company, except where otherwise specified or as otherwise notified in writing by the Company prior to the Expiration Date, the following Subscription Forms shall from time be deemed to time during the offeringbe properly completed:
(a) Hold all monies received in any subscription with respect to which a dedicated, non-interest bearing account for the benefit of the Company. Promptly following the Expiration Time, Continental shall, upon the receipt of the Distribution Letter Holder has failed to execute a Subscription Form in the form attached hereto as Exhibit 3 manner provided by the terms thereof, provided that (1) the Holder has indicated on such Subscription Form or by written communication, the manner in which the Holder wishes to subscribe and (2) proper payment has been made by such Holder;
(b) any subscription by an individual (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by an individual (and not by a corporation, partnership or fiduciary) other than the Holder, provided that (1) the Subscription Form submitted therewith has been duly executed by the Company Holder, (2) the Holder is the Holder to which such Subscription Form relates, (3) the check tendered in payment of such subscription is drawn for the proper amount and Maxim Group LLC, distribute to the Company order of The Bank of New York and is otherwise in order, and (4) there is no evidence actually known to the funds from exercise ADS Warrant Agent indicating that such check was delivered to the Holder by the drawer thereof for any purpose other than the payment of the Basic Subscription Rights accompanying subscription;
(c) any subscription by a custodian on behalf of a minor which is accompanied by a check drawn by an individual (and Over-Subscription Rights not by a corporation, partnership or fiduciary) other than the Holder, if the provisos set forth in such account clause (b) above are satisfied; or
(d) any subscription by an individual (and following not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by a corporation, partnership or fiduciary other than the Expiration Date issue Holder, if the provisos set forth in clause (in physical form or electronically through the facilities of DTC, in each case in a manner approved by the Companyb) certificates for shares of Common Stock issuable with respect to Subscriptions that have been acceptedabove are satisfied.
4.2. Continental will not be obligated to calculate or pay interest to any holder or any other party claiming through a holder or otherwise. It The ADS Warrant Agent is hereby agreed immediately following the effective date authorized to accept subscriptions for New ADSs on behalf of the Subscription, immediately available funds, represented by certified check, money order, or wire transfer but not personal check, will be deposited with Continental. In the event that the Rights Offering is not consummated because the Company (i) has cancelled or terminated on the Rights Offering or Expiration Date, (ii) after determining the total number of New ADSs that an Holder is unable entitled to raise purchase in the ADS Warrants Offer, pursuant to Article VI hereof, and (iii) upon the proper completion and execution of the Subscription Form, in accordance with the terms thereof and hereof.
4.3. The ADS Warrant Agent is authorized to waive proof of authority to sign (including the right to waive signatures of co-fiduciaries and proof of appointment or authority of any fiduciary or other person acting in a minimum of $2,500,000 (net of expensesrepresentative capacity) in connection with any subscription with respect to which:
(a) the Rights Offering New ADSs to which the Subscription Form relates are registered in the name of an executor, administrator, trustee, custodian for a minor or other fiduciary and has been executed by such Holder provided that the New ADSs purchased are to be issued in the name of such Holder;
(b) the New ADSs to which the Subscription Form relates are registered in the name of a corporation and the Subscription Form has been executed by an officer of such corporation, provided that the New ADSs purchased are to be issued in the name of such corporation;
(c) the Subscription Form has been executed by a bank, trust company or broker as agent for the Holder to which such Subscription Form relates, provided that the New ADSs purchased are to be issued in the name of such Holder; or
(d) the New ADSs to which such Subscription Form relates are registered in the name of a decedent and the Subscription Form has been executed by a person who purports to act as the executor or administrator of such decedent’s estate, provided that (i) the New ADSs are to be issued in the name of such person as executor or administrator of such decedent’s estate, (ii) the check tendered in payment of such subscription is drawn for the proper amount and to the order of The Bank Of New York and is otherwise in order, and (iii) there is no evidence actually known to the ADS Warrant Agent indicating that such person is not the duly authorized representative which such person purports to be.
4.4. In all cases other than those described in Sections 4.3(a) through (d) above, the ADS Warrant Agent will be required to obtain all necessary proof of authority to sign in connection with subscriptions for New ADSs; provided, however, that in the event that such proof of authority has not been received on or prior to the Expiration Date, the ADS Warrant Agent may obtain advice from the Company as to whether any such subscriptions may be accepted and the ADS Warrant Agent shall have no liability whatsoever in the event it acts in good faith in accordance with such advice nor shall the ADS Warrant Agent be required to accept subscriptions for New ADSs in the absence of such proof in the event it does not receive such advice from the Company prior to the Expiration Date (unless and shall have no liability whatsoever for any such minimum is waived or reduced by the Company’s board of directors and with the prior written consent of Maxim Group LLC (which consent will not be unreasonably withheld)), Continental shall, upon the receipt of the Liquidation Letter in the form attached hereto as Exhibit 4 and executed by the Company and Maxim Group LLC, liquidate the segregated account in which the subscription monies were held as promptly as practicable and distribute the funds to each respective subscribing stockholder who elected to exercise its Rightsaction.
(b) Advise the Company daily by facsimile transmission and confirm by letter to the attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Company Representative”) as to the total number of shares of Common Stock Subscribed for, the total number of Rights partially Subscribed for and the amount of funds received, with cumulative totals for each; and in addition advise the Company Representative, by telephone at (▇▇▇) ▇▇▇-▇▇▇▇, confirmed by facsimile transmission, 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 Subscribed for and the number of shares of Common Stock unsubscribed for.
Appears in 1 contract
Acceptance of Subscriptions. Upon acceptance 1. The Rights Agent is hereby authorized and directed to receive subscriptions for Common Stock on behalf of a Subscription, Continental shall from time to time the Company throughout the Subscription Period. Any funds that the Rights Agent receives during the offeringSubscription Period from Holders in respect of payments for Common Stock shall be deposited in an account at the Rights Agent that the Rights Agent designates solely for such purpose (the "Deposit Account") and such funds shall remain in the Deposit Account until they are distributed to the Company in accordance with Article VI, paragraph 1 hereof. As promptly as practicable after the Rights Agent receives each Holder's Instruction, the Rights Agent shall determine whether the Holder sending such Holder's Instruction has properly completed and executed such forms and will confirm with the Company that the Holder has submitted the correct payment for the Common Stock. If such form is not properly completed, is unexecuted or, if such Holder did not send the correct payment amount then the Rights Agent will send a notice to such Holder instructing such Holder to amend its Holder's Instruction or submit the proper payment amount, as the case may be. Except as set forth in paragraph 3 of this Article IV, if such Holder does not amend its Holder's Instruction or submit the proper payment amount, as the case may be, by the Expiration Date, such Holder's right to purchase Common Stock in the Rights Offer shall be deemed to be unexercised. Notwithstanding the foregoing, without further authorization from the Company, except where otherwise specified or as otherwise notified in writing by the Company prior to the Expiration Date, the following Holder's Instructions shall be deemed to be properly completed:
(a) Hold all monies received in any subscription with respect to which a dedicated, non-interest bearing account for the benefit of the Company. Promptly following the Expiration Time, Continental shall, upon the receipt of the Distribution Letter Holder has failed to execute a Holder's Instruction in the form attached hereto as Exhibit 3 manner provided by the terms thereof, provided that (1) the Holder has indicated on such Holder's Instruction or by written communication, the manner in which the Holder wishes to subscribe and (2) proper payment has been made by such Holder;
(b) any subscription by an individual (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by an individual (and not by a corporation, partnership or fiduciary) other than the Holder, provided that (1) the Holder's Instruction submitted therewith has been duly executed by the Company Holder, (2) the Holder is the Holder to which such Holder's Instruction relates, (3) the check tendered in payment of such subscription is drawn for the proper amount and Maxim Group LLC, distribute to the Company order of The Bank of New York and is otherwise in order, and (4) there is no evidence actually known to the funds from exercise Rights Agent indicating that such check was delivered to the Holder by the drawer thereof for any purpose other than the payment of the Basic Subscription accompanying subscription;
(c) any subscription by a custodian on behalf of a minor which is accompanied by a check drawn by an individual (and not by a corporation, partnership or fiduciary) other than the Holder, if the provisos set forth in clause (b) above are satisfied; or
(d) any subscription by an individual (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by a corporation, partnership or fiduciary other than the Holder, if the provisos set forth in clause (b) above are satisfied.
2. The Rights and Over-Subscription Rights in such account and following the Expiration Date issue (in physical form or electronically through the facilities of DTC, in each case in a manner approved by the Company) certificates Agent is hereby authorized to accept subscriptions for shares of Common Stock issuable with respect to Subscriptions that have been accepted. Continental will not be obligated to calculate or pay interest to any holder or any other party claiming through a holder or otherwise. It is hereby agreed immediately following the effective date on behalf of the Subscription, immediately available funds, represented by certified check, money order, or wire transfer but not personal check, will be deposited with Continental. In the event that the Rights Offering is not consummated because the Company (i) has cancelled or terminated on the Rights Offering or Expiration Date, (ii) is unable to raise a minimum of $2,500,000 (net of expenses) in the Rights Offering prior to the Expiration Date (unless such minimum is waived or reduced by the Company’s board of directors and with the prior written consent of Maxim Group LLC (which consent will not be unreasonably withheld)), Continental shall, upon the receipt of the Liquidation Letter in the form attached hereto as Exhibit 4 and executed by the Company and Maxim Group LLC, liquidate the segregated account in which the subscription monies were held as promptly as practicable and distribute the funds to each respective subscribing stockholder who elected to exercise its Rights.
(b) Advise the Company daily by facsimile transmission and confirm by letter to the attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Company Representative”) as to after determining the total number of shares of Common Stock Subscribed forthat a holder is entitled to purchase in the Rights Offer, pursuant to Article VI hereof, and (iii) upon the total number of Rights partially Subscribed for proper completion and the amount of funds received, with cumulative totals for each; and in addition advise the Company Representative, by telephone at (▇▇▇) ▇▇▇-▇▇▇▇, confirmed by facsimile transmission, execution of the amount of funds received identified Holder's Instruction, in accordance with the terms thereof and hereof.
3. The Rights Agent is authorized to waive proof of authority to sign (including the right to waive signatures of co-fiduciaries and proof of appointment or authority of any fiduciary or other person acting in a representative capacity) in connection with any subscription with respect to which:
(a) abovethe shares to which the Holder's Instruction relates are registered in the name of an executor, depositedadministrator, available trustee, custodian for a minor or transferred other fiduciary and has been executed by such Holder provided that the shares purchased are to be issued in accordance with the name of such Holder;
(ab) abovethe shares to which the Holder's Instructions relates are registered in the name of a corporation and the Holder's Instruction has been executed by an officer of such corporation, with cumulative totals; andprovided that the shares purchased are to be issued in the name of such corporation;
(c) As promptly the Holder's Instruction has been executed by a bank, trust company, broker or other nominee as possible but agent for the Holder to which such Holder's Instruction relates, provided that the shares purchased are to be issued in any event on the name of such Holder; or
(d) the shares to which such Holder's Instructions relates are registered in the name of a decedent and the Holder's Instruction has been executed by a person who purports to act as the executor or before 3:30 p.m.administrator of such decedent's estate, provided that (1) the shares are to be issued in the name of such person as executor or administrator of such decedent's estate, (2) the check tendered in payment of such subscription is drawn for the proper amount and to the order of The Bank of New York City Timeand is otherwise in order, on and (3) there is no evidence actually known to the first full business day following Rights Agent indicating that such person is not the Expiration Time, advise the Company Representative in accordance with (b) above of the number of shares Subscribed for and the number of shares of Common Stock unsubscribed forduly authorized representative which such person purports to be.
Appears in 1 contract
Sources: Rights Agency Agreement (Gladstone Investment Corporation\de)
Acceptance of Subscriptions. Upon acceptance a. The Company hereby authorizes and directs the Agent to accept subscriptions for New ADSs on behalf of a Subscriptionthe Company upon the proper completion and execution of an ADS Rights Certificate, Continental shall from time to time during surrender of the offering:
(a) Hold all monies received applicable ADS Rights Certificate and delivery of the U.S. Dollar Payment in a dedicated, non-interest bearing account respect of the ADS Subscription Price for the benefit of New ADSs, in accordance with the terms thereof and hereof. The Company further authorizes the Agent to refuse to accept, in its reasonable discretion, any improperly completed or unexecuted ADS Rights Certificate. Notwithstanding the foregoing, without further authorization from the Company. Promptly following the Expiration Time, Continental shall, upon the receipt of the Distribution Letter in the form attached hereto as Exhibit 3 and executed by the Company and Maxim Group LLC, distribute to the Company the funds from exercise of the Basic Subscription Rights and Over-Subscription Rights in such account and following on or before the Expiration Date issue the Agent may accept any subscription without an ADS Rights Certificate effected by payment in full of the ADS Subscription Price, provided that any such payment is accompanied by a properly completed and executed Notice of Guaranteed Delivery duly completed and executed (which may be sent by facsimile transmission) from an eligible guarantor institution that is a member of a Medallion Signature Guarantee Program, irrevocably guaranteeing that an ADS Rights Certificate for the ADS Rights being exercised will be properly completed, executed and delivered by such commercial bank or trust company or member firm to the Agent, prior to 5:00 p.m. (New York City time) on October 9, 2002; provided, however, that the Agent shall not deliver the New ADSs subscribed for until such ADS Rights Certificate(s) have been received by the Agent. If the financial institution that is a member of a Medallion Signature Guarantee Program fails to deliver a properly completed and signed ADS Rights Certificate before 5:00 p.m. (New York City time) on October 9, 2002, the Agent will sell the New ADSs issued in physical form connection with the failed guarantee and will pay to the subscribing holder, from the net proceeds of the sale, only the lesser of the ADS Subscription Price paid or electronically through the facilities net proceeds of DTCsuch sale, in each case net of applicable fees and expenses incurred in connection with the failed guarantee. If the proceeds of the sale of the New ADSs exceed the amount payable to the holder, the Agent will be entitled to retain the excess proceeds.
b. The Company authorizes the Agent to waive proof of authority to sign (including the right to waive signatures of co-fiduciaries and proof of appointment or authority of any fiduciary or other person acting in a manner approved by the Companyrepresentative capacity) certificates for shares of Common Stock issuable in connection with any subscription with respect to Subscriptions that have which:
(i) the surrendered ADS Rights Certificate is registered in the name of one or more individuals or an executor, administrator, trustee, custodian for a minor or other fiduciary and has been accepted. Continental will not be obligated to calculate or pay interest to any executed by such registered holder or any other party claiming through a holders, provided that the New ADSs subscribed for are to be issued in the name of such registered holder or otherwise. It holders;
(ii) the surrendered ADS Rights Certificate is hereby agreed immediately following registered in the effective date name of a corporation and has been executed by an officer of such corporation, provided that the New ADSs subscribed for are to be issued in the name of such corporation;
(iii) the surrendered ADS Rights Certificate has been executed by a bank, trust company or broker as agent for the registered holder thereof, provided that the New ADSs subscribed for are to be issued in the name of such registered holder; and
(iv) the surrendered ADS Rights Certificate is registered in the name of a decedent and has been executed by a person who purports to act as the executor or administrator of such decedent's estate, provided that (A) such subscription is for not more than 200 New ADSs, (B) the New ADSs are to be issued in the name of such person as executor or administrator of such decedent's estate, (C) the check tendered in payment of such subscription is drawn for the proper amount and to the order of the SubscriptionAgent, immediately available funds, represented by certified check, money and is otherwise in order, or wire transfer but and (D) there is no evidence indicating that such person is not personal check, will be deposited with Continentalthe duly authorized representative which such person purports to be. In all cases other than those described in clauses (i) through (iv) above, the agent will obtain all necessary proof of authority to sign in connection with the subscriptions for New ADSs, provided, however, that in the event that the Rights Offering is such proof of authority has not consummated because the Company (i) has cancelled been received on or terminated the Rights Offering or (ii) is unable to raise a minimum of $2,500,000 (net of expenses) in the Rights Offering prior to the Expiration Date (unless Date, the Agent shall obtain advice from the Company as to whether any such minimum is waived subscriptions may be accepted.
c. The Company authorizes the Agent to accept customary letters of indemnification from commercial banks, trust companies or reduced eligible guarantor institutions that are members of a Medallion Signature Guarantee Program with respect to nonconforming aspects of documents delivered in connection with subscriptions for New ADSs.
d. On each business day during the ADS Subscription Period, the Agent shall deposit in the NY Account all U.S. dollar amounts received by the Company’s board Agent on such day in respect of directors payments made upon exercise of Primary ADS Rights and with the prior written consent of Maxim Group LLC (which consent will not be unreasonably withheld)), Continental shall, upon the receipt of the Liquidation Letter in the form attached hereto as Exhibit 4 and executed by the Company and Maxim Group LLC, liquidate the segregated account in which the subscription monies were held as promptly as practicable and distribute the funds to each respective subscribing stockholder who elected to exercise its Secondary ADS Rights.
(b) Advise the Company daily by facsimile transmission and confirm by letter to the attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Company Representative”) as to the total number of shares of Common Stock Subscribed for, the total number of Rights partially Subscribed for and the amount of funds received, with cumulative totals for each; and in addition advise the Company Representative, by telephone at (▇▇▇) ▇▇▇-▇▇▇▇, confirmed by facsimile transmission, 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 Subscribed for and the number of shares of Common Stock unsubscribed for.
Appears in 1 contract
Sources: Rights Agency Agreement (Chartered Semiconductor Manufacturing LTD)
Acceptance of Subscriptions. Upon acceptance 4.1. The ADS Rights Agent is hereby authorized and directed to receive subscriptions for New ADSs on behalf of the Company throughout the Subscription Period. Holders shall make payment to the ADS Rights Agent of the Deposit Amount in U.S. dollars. Such payment must be received by the ADS Rights Agent no later than 5:00 p.m., New York time, on the Expiration Date. Any funds that the ADS Rights Agent receives during the Subscription Period from Holders in respect of payments for New ADSs shall be deposited in an account at the ADS Rights Agent that the ADS Rights Agent designates solely for such purpose (the “Deposit Account”) and such funds shall remain in the Deposit Account until they are distributed in accordance with Section 6.2. As promptly as practicable after the ADS Rights Agent receives each Subscription Form, the ADS Rights Agent shall determine whether the Holder sending such Subscription Form has properly completed and executed such form and has submitted the correct Deposit Amount for the New ADSs. If such form is not properly completed, is unexecuted or if such Holder did not send the correct Deposit Amount, then the ADS Rights Agent will send a notice to such Holder requesting such Holder to correct its Subscription Form or submit the proper Deposit Amount, as the case may be. If such Holder does not correct its Subscription Form or submit the proper Deposit Amount, as the case may be, by the Expiration Date, such Holder’s right to purchase New ADSs in the ADS Rights Offer shall be deemed to be unexercised and the ADS Rights Agent shall promptly refund the amount deposited to such Holder. The ADS Rights Agent will require that payment of the Deposit Amount be in the form of a Subscriptioncertified or official bank check, Continental money order or wire transfer. Notwithstanding the foregoing, without further authorization from the Company, except where otherwise specified or as otherwise notified in writing by the Company prior to the Expiration Date, the following Subscription Forms shall from time be deemed to time during the offeringbe properly completed:
(a) Hold all monies received in any subscription with respect to which a dedicated, non-interest bearing account for the benefit of the Company. Promptly following the Expiration Time, Continental shall, upon the receipt of the Distribution Letter Holder has failed to execute a Subscription Form in the form attached hereto as Exhibit 3 manner provided by the terms thereof, provided that (1) the Holder has indicated on such Subscription Form or by written communication, the manner in which the Holder wishes to subscribe and (2) proper payment has been made by such Holder;
(b) any subscription by an individual (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by an individual (and not by a corporation, partnership or fiduciary) other than the Holder, provided that (1) the Subscription Form submitted therewith has been duly executed by the Company Holder, (2) the Holder is the Holder to which such Subscription Form relates, (3) the check tendered in payment of such subscription is drawn for the proper amount and Maxim Group LLC, distribute to the Company order of The Bank of New York and is otherwise in order, and (4) there is no evidence actually known to the funds from exercise ADS Rights Agent indicating that such check was delivered to the Holder by the drawer thereof for any purpose other than the payment of the Basic Subscription accompanying subscription;
(c) any subscription by a custodian on behalf of a minor which is accompanied by a check drawn by an individual (and not by a corporation, partnership or fiduciary) other than the Holder, if the provisos set forth in clause (b) above are satisfied; or
(d) any subscription by an individual (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by a corporation, partnership or fiduciary other than the Holder, if the provisos set forth in clause (b) above are satisfied.
4.2. The ADS Rights and Over-Subscription Rights in such account and following the Expiration Date issue (in physical form or electronically through the facilities of DTC, in each case in a manner approved by the Company) certificates for shares of Common Stock issuable with respect to Subscriptions that have been accepted. Continental will not be obligated to calculate or pay interest to any holder or any other party claiming through a holder or otherwise. It Agent is hereby agreed immediately following the effective date authorized to accept subscriptions for New ADSs on behalf of the Subscription, immediately available funds, represented by certified check, money order, or wire transfer but not personal check, will be deposited with Continental. In the event that the Rights Offering is not consummated because the Company (i) has cancelled or terminated on the Rights Offering or Expiration Date, (ii) after determining the total number of New ADSs that an Holder is unable entitled to raise purchase in the ADS Rights Offer, pursuant to Article VI hereof, and (iii) upon the proper completion and execution of the Subscription Form, in accordance with the terms thereof and hereof.
4.3. The ADS Rights Agent is authorized to waive proof of authority to sign (including the right to waive signatures of co-fiduciaries and proof of appointment or authority of any fiduciary or other person acting in a minimum of $2,500,000 (net of expensesrepresentative capacity) in connection with any subscription with respect to which:
(a) the New ADSs to which the Subscription Form relates are registered in the name of an executor, administrator, trustee, custodian for a minor or other fiduciary and has been executed by such Holder provided that the New ADSs purchased are to be issued in the name of such Holder;
(b) the New ADSs to which the Subscription Form relates are registered in the name of a corporation and the Subscription Form has been executed by an officer of such corporation, provided that the New ADSs purchased are to be issued in the name of such corporation;
(c) the Subscription Form has been executed by a bank, trust company or broker as agent for the Holder to which such Subscription Form relates, provided that the New ADSs purchased are to be issued in the name of such Holder; or
(d) the New ADSs to which such Subscription Form relates are registered in the name of a decedent and the Subscription Form has been executed by a person who purports to act as the executor or administrator of such decedent’s estate, provided that (i) the New ADSs are to be issued in the name of such person as executor or administrator of such decedent’s estate, (ii) the check tendered in payment of such subscription is drawn for the proper amount and to the order of The Bank Of New York and is otherwise in order, and (iii) there is no evidence actually known to the ADS Rights Offering Agent indicating that such person is not the duly authorized representative which such person purports to be.
4.4. In all cases other than those described in Sections 4.3(a) through (d) above, the ADS Rights Agent will be required to obtain all necessary proof of authority to sign in connection with subscriptions for New ADSs; provided, however, that in the event that such proof of authority has not been received on or prior to the Expiration Date, the ADS Rights Agent may obtain advice from the Company as to whether any such subscriptions may be accepted and the ADS Rights Agent shall have no liability whatsoever in the event it acts in good faith in accordance with such advice nor shall the ADS Rights Agent be required to accept subscriptions for New ADSs in the absence of such proof in the event it does not receive such advice from the Company prior to the Expiration Date (unless and shall have no liability whatsoever for any such minimum is waived or reduced by the Company’s board of directors and with the prior written consent of Maxim Group LLC (which consent will not be unreasonably withheld)), Continental shall, upon the receipt of the Liquidation Letter in the form attached hereto as Exhibit 4 and executed by the Company and Maxim Group LLC, liquidate the segregated account in which the subscription monies were held as promptly as practicable and distribute the funds to each respective subscribing stockholder who elected to exercise its Rightsaction.
(b) Advise the Company daily by facsimile transmission and confirm by letter to the attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Company Representative”) as to the total number of shares of Common Stock Subscribed for, the total number of Rights partially Subscribed for and the amount of funds received, with cumulative totals for each; and in addition advise the Company Representative, by telephone at (▇▇▇) ▇▇▇-▇▇▇▇, confirmed by facsimile transmission, 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 Subscribed for and the number of shares of Common Stock unsubscribed for.
Appears in 1 contract
Sources: Rights Agency Agreement (Genesys Sa)
Acceptance of Subscriptions. Upon acceptance of a Subscription, Continental shall from time to time during the offering:
(a) Hold all monies received in a dedicated, non-interest bearing escrow account for the benefit of the Company. Promptly following the Expiration Time, Continental shall, upon the receipt of the Distribution Letter in the form attached hereto as Exhibit 3 and executed by the Company and Maxim Group LLCCompany, distribute to the Company the funds from exercise of the Basic Subscription Rights and Over-Subscription Rights in such account and following the Expiration Date issue (in physical form or electronically through the facilities of DTC, in each case in a manner approved by the Company) certificates for shares of Common Stock issuable with respect to Subscriptions that have been accepted. Continental will not be obligated to calculate or pay interest to any holder or any other party claiming through a holder or otherwise. It is hereby agreed immediately following the effective date of the Subscription, immediately available funds, represented by certified check, money order, or wire transfer but not personal check, will be deposited with ContinentalContinental in accordance with Exhibit 7. In the event that the Rights Offering is not consummated because the Company (i) has withdrawn, cancelled or terminated the Rights Offering or (ii) is unable to raise a minimum of $2,500,000 (net of expenses) in the Rights Offering prior to the Expiration Date (unless such minimum is waived or reduced by the Company’s board of directors and with the prior written consent of Maxim Group LLC (which consent will not be unreasonably withheld))Offering, Continental shall, upon the receipt of the Liquidation Letter in the form attached hereto as Exhibit 4 and executed by the Company and Maxim Group LLCCompany, liquidate the segregated account in which the subscription monies were held as promptly as practicable and distribute the funds to each respective subscribing stockholder who elected to exercise its Rights.
(b) Advise the Company daily by facsimile transmission and confirm by letter to the attention of ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ (the “Company Representative”) as to the total number of shares of Common Stock Subscribed for, the total number of Rights partially Subscribed for and the amount of funds received, with cumulative totals for each; and in addition advise the Company Representative, by telephone at (▇▇▇) ▇▇▇-▇▇▇▇▇ (Ext. 108), confirmed by facsimile transmissiontransmission XXXXXXXXXX, of the amount of funds received identified in accordance with (a) above, deposited, available 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 Eastern Daylight Savings 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 Subscribed for and the number of shares of Common Stock unsubscribed forunsubscribed.
Appears in 1 contract
Sources: Subscription and Escrow Agent Agreement (HG Holdings, Inc.)
Acceptance of Subscriptions. Upon acceptance 1. The Rights Agent is hereby authorized and directed to receive subscriptions for ADSs on behalf of a Subscription, Continental shall from time to time the Company throughout the ADS Subscription Period. Any funds that the Rights Agent receives during the offeringADS Subscription Period from Record Holders in respect of payments for ADSs shall be deposited in an interest bearing account at the Rights Agent that the Rights Agent designates solely for such purpose (the "Deposit Account") and such funds shall remain in the Deposit Account until they are distributed to the Company in accordance with Article VI, paragraph 1 hereof. The Rights Agent will arrange with DTC to make available DTC's ASOPS system for electronic exercise of the ADS Rights by beneficial owners of ADSs.
2. As promptly as practicable after the Rights Agent receives each Record Holder's ADS Subscription Card, the Rights Agent shall determine whether the Record Holder sending such ADS Subscription Card has properly completed and executed such forms and has submitted the correct payment for the ADSs. If such form is not properly completed, is unexecuted or, if such Record Holder did not send the correct payment amount then the Rights Agent will send a notice to such Record Holder instructing such Record Holder to amend its ADS Subscription Card or submit the proper payment amount, as the case may be. All questions regarding the timeliness, validity , form and eligibility of any exercise of ADS Rights will be determined by the Company whose determinations will be final and binding. The Company, 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 or reject the purposed exercise of any ADS Right. ADS Subscription Cards 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. Notwithstanding the foregoing, without further authorization from the Company, except where otherwise specified or as otherwise notified in writing by the Company prior to the ADS Expiration Date, the following ADS Subscription Cards shall be deemed to be properly completed:
(a) Hold all monies received in a dedicated, non-interest bearing account for the benefit of the Company. Promptly following the Expiration Time, Continental shall, upon the receipt of the Distribution Letter any ADS Subscription Card which an Record Holder has failed to execute in the form attached hereto as Exhibit 3 manner provided by the terms thereof, provided that (1) the Record Holder has indicated on such ADS Subscription Card by written communication, the manner in which the Record Holder wishes to subscribe and (2) proper payment has been made by such Record Holder;
(b) any ADS Subscription Card by an individual (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by an individual (and not by a corporation, partnership or fiduciary) other than the Record Holder, provided that (1) the ADS Subscription Card submitted has been duly executed by the Company Record Holder, (2) the Record Holder is the Record Holder to which such ADS Subscription Card relates, (3) the check tendered in payment of such ADS Subscription Card is drawn for the proper amount and Maxim Group LLC, distribute to the Company order of Citibank, N.A. and is otherwise in order, and (4) there is no evidence actually known to the funds from exercise Rights Agent indicating that such check was delivered to the Record Holder by the drawer thereof for any purpose other than the payment of the Basic accompanying ADS Subscription Card;
(c) any ADS Subscription Card by a custodian on behalf of a minor which is accompanied by a check drawn by an individual (and not by a corporation, partnership or fiduciary) other than the Record Holder, if the provisos set forth in clause (b) above are satisfied; or
(d) any ADS Subscription Card by an individual (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by a corporation, partnership or fiduciary other than the Record Holder, if the provisos set forth in clause (b) above are satisfied.
3. The Rights and Over-Subscription Rights in such account and following the Expiration Date issue (in physical form or electronically through the facilities of DTC, in each case in a manner approved by the Company) certificates for shares of Common Stock issuable with respect to Subscriptions that have been accepted. Continental will not be obligated to calculate or pay interest to any holder or any other party claiming through a holder or otherwise. It Agent is hereby agreed immediately following the effective date authorized to accept ADS Subscription Cards on behalf of the Subscription, immediately available funds, represented by certified check, money order, or wire transfer but not personal check, will be deposited with Continental. In the event that the Rights Offering is not consummated because the Company (i) has cancelled or terminated on the Rights Offering or ADS Expiration Date, (ii) after determining the total number of ADSs that a Record Holder is unable entitled to raise a minimum of $2,500,000 (net of expenses) purchase in the Rights Offering prior Offer, pursuant to Article VI hereof, and (iii) upon the Expiration Date (unless such minimum is waived or reduced by proper completion and execution of the Company’s board of directors and ADS Subscription Card, in accordance with the prior written consent terms thereof and hereof.
4. The Rights Agent is authorized to waive proof of Maxim Group LLC authority to sign (including the right to waive signatures of co-fiduciaries and proof of appointment or authority of any fiduciary or other person acting in a representative capacity) in connection with any subscription with respect to which:
(a) the ADSs to which consent will not be unreasonably withheld)), Continental shall, upon the receipt of the Liquidation Letter ADS Subscription Card relates are registered in the form attached hereto as Exhibit 4 name of an executor, administrator, trustee, custodian for a minor or other fiduciary and has been executed by such Record Holder provided that the Company and Maxim Group LLC, liquidate ADSs purchased are to be issued in the segregated account in which the subscription monies were held as promptly as practicable and distribute the funds to each respective subscribing stockholder who elected to exercise its Rights.name of such Record Holder;
(b) Advise the Company daily by facsimile transmission and confirm by letter ADSs to which the attention ADS Subscription Card relates are registered in the name of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Company Representative”) as to the total number of shares of Common Stock Subscribed for, the total number of Rights partially Subscribed for a corporation and the amount ADS Subscription Card has been executed by an officer of funds receivedsuch corporation, with cumulative totals for each; and provided that the ADSs purchased are to be issued in addition advise the Company Representative, by telephone at (▇▇▇) ▇▇▇-▇▇▇▇, confirmed by facsimile transmission, name of the amount of funds received identified in accordance with (a) above, deposited, available or transferred in accordance with (a) above, with cumulative totals; andsuch corporation;
(c) As promptly the ADS Subscription Card has been executed by a bank, trust company or broker as possible but agent for the Record Holder to which such ADS Subscription Card relates, provided that the ADSs purchased are to be issued in any event on the name of such Record Holder; or
(d) the ADSs to which such ADS Subscription Card relates are registered in the name of a decedent and the ADS Subscription Card has been executed by a person who purports to act as the executor or before 3:30 p.m.administrator of such decedent's estate, New York City Timeprovided that (1) the ADSs are to be issued in the name of such person as executor or administrator of such decedent's estate, on (2) the first full business day following check tendered in payment of such ADS Subscription Card is drawn for the Expiration Timeproper amount and to the order of Citibank, advise N.A. and is otherwise in order, and (3) there is no evidence actually known to the Company Representative in accordance with (b) above of Rights Agent indicating that such person is not the duly authorized representative which such person purports to be.
5. ADS Holders will only receive a whole number of shares Subscribed for and the number of shares of Common Stock unsubscribed forADS Rights. The Rights Agent will disregard fractional entitlements which will be allowed to lapse unexercised.
Appears in 1 contract
Sources: Rights Agency Agreement (Gol Intelligent Airlines Inc.)
Acceptance of Subscriptions. Upon acceptance of a Subscription, Continental shall from time to time during the offering:
(a) Hold all monies received in a dedicated, non-interest bearing account for the benefit of the Company. Promptly following the Expiration Time, Continental shall, upon the receipt of the Distribution Letter in the form attached hereto as Exhibit 3 and executed by the Company and Maxim Group LLCCompany, distribute to the Company the funds from exercise of the Basic Subscription Rights and Over-Subscription Rights in such account and following the Expiration Date issue (in physical form or electronically through the facilities of DTC, in each case in a manner approved by the Company) certificates for shares of Common Stock issuable with respect to Subscriptions that have been accepted. Continental will not be obligated to calculate or pay interest to any holder or any other party claiming through a holder or otherwise. It is hereby agreed immediately following the effective date of the Subscription, immediately available funds, represented by certified check, money order, or wire transfer but not personal check, will be deposited with Continental. In the event that the Rights Offering is not consummated because the Company (i) has withdrawn, cancelled or terminated the Rights Offering or (ii) is unable to raise a minimum of $2,500,000 (net of expenses) in the Rights Offering prior to the Expiration Date (unless such minimum is waived or reduced by the Company’s board of directors and with the prior written consent of Maxim Group LLC (which consent will not be unreasonably withheld))Offering, Continental shall, upon the receipt of the Liquidation Letter in the form attached hereto as Exhibit 4 and executed by the Company and Maxim Group LLCCompany, liquidate the segregated account in which the subscription monies were held as promptly as practicable and distribute the funds to each respective subscribing stockholder who elected to exercise its Rights.
(b) Advise the Company daily by facsimile transmission and confirm by letter to the attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ [ ] (the “Company Representative”) as to the total number of shares of Common Stock Subscribed for, the total number of Rights partially Subscribed for and the amount of funds received, with cumulative totals for each; and in addition advise the Company Representative, by telephone at (▇▇▇) ▇▇▇-▇▇▇▇[ ], confirmed by facsimile transmissiontransmission [ ], of the amount of funds received identified in accordance with (a) above, deposited, available 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 Eastern Daylight Savings 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 Subscribed for and the number of shares of Common Stock unsubscribed forunsubscribed.
Appears in 1 contract
Sources: Subscription Agent Agreement (Stanley Furniture Co Inc.)
Acceptance of Subscriptions. Upon acceptance 4.1 The ADS Rights Agent is hereby authorized and directed to receive subscriptions for New ADSs relating to newly issued Shares and treasury Shares on behalf of the Company throughout the Subscription Period. Record Owners shall make payment to the ADS Rights Agent of the Deposit Amount in U.S. dollars. Such payment must be received by the ADS Rights Agent no later than 5:00 p.m., New York time, on the Expiration Date. Any funds that the ADS Rights Agent receives during the Subscription Period from Record Owners in respect of payments for New ADSs shall be deposited in an account at the ADS Rights Agent that the ADS Rights Agent designates solely for such purpose (the “Deposit Account”) and such funds shall remain in the Deposit Account until they are distributed in accordance with Section 6.2. As promptly as practicable after the ADS Rights Agent receives each Subscription Form, the ADS Rights Agent shall determine whether the Record Owner sending such Subscription Form has properly completed and executed such form and has submitted the correct Deposit Amount for the New ADSs. If such form is not properly completed, is unexecuted or if such Record Owner did not send the correct Deposit Amount, then the ADS Rights Agent will send a notice to such Record Owner requesting such Record Owner to correct its Subscription Form or submit the proper Deposit Amount, as the case may be. If such Record Owner does not correct its Subscription Form or submit the proper Deposit Amount, as the case may be, by the Expiration Date, such Record Owner’s right to purchase New ADSs in the ADS Rights Offer shall be deemed to be unexercised and the ADS Rights Agent shall promptly refund the amount deposited to such Record Owner. The ADS Rights Agent will require that payment of the Deposit Amount be in the form of a Subscriptioncertified or official bank check, Continental money order or wire transfer. Notwithstanding the foregoing, without further authorization from the Company, except where otherwise specified or as otherwise notified in writing by the Company prior to the Expiration Date, the following Subscription Forms shall from time be deemed to time during the offeringbe properly completed:
(a) Hold all monies received in any subscription with respect to which a dedicated, non-interest bearing account for the benefit of the Company. Promptly following the Expiration Time, Continental shall, upon the receipt of the Distribution Letter Record Owner has failed to execute a Subscription Form in the form attached hereto as Exhibit 3 manner provided by the terms thereof, provided that (1) the Record Owner has indicated on such Subscription Form or by written communication, the manner in which the Record Owner wishes to subscribe and (2) proper payment has been made by such Record Owner;
(b) any subscription by an individual (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by an individual (and not by a corporation, partnership or fiduciary) other than the Record Owner, provided that (1) the Subscription Form submitted therewith has been duly executed by the Company Record Owner, (2) the Record Owner is the Record Owner to which such Subscription Form relates, (3) the check tendered in payment of such subscription is drawn for the proper amount and Maxim Group LLC, distribute to the Company order of The Bank of New York and is otherwise in order, and (4) there is no evidence actually known to the funds from exercise ADS Rights Agent indicating that such check was delivered to the Record Owner by the drawer thereof for any purpose other than the payment of the Basic Subscription accompanying subscription;
(c) any subscription by a custodian on behalf of a minor which is accompanied by a check drawn by an individual (and not by a corporation, partnership or fiduciary) other than the Record Owner, if the provisos set forth in clause (b) above are satisfied; or
(d) any subscription by an individual (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by a corporation, partnership or fiduciary other than the Record Owner, if the provisos set forth in clause (b) above are satisfied.
4.2 The ADS Rights and Over-Subscription Rights in such account and following the Expiration Date issue (in physical form or electronically through the facilities of DTC, in each case in a manner approved by the Company) certificates for shares of Common Stock issuable with respect to Subscriptions that have been accepted. Continental will not be obligated to calculate or pay interest to any holder or any other party claiming through a holder or otherwise. It Agent is hereby agreed immediately following the effective date authorized to accept subscriptions for New ADSs relating to newly issued Shares and treasury Shares on behalf of the Subscription, immediately available funds, represented by certified check, money order, or wire transfer but not personal check, will be deposited with Continental. In the event that the Rights Offering is not consummated because the Company (i) has cancelled or terminated on the Rights Offering or Expiration Date, (ii) after determining the total number of New ADSs relating to newly issued Shares and treasury Shares that a Record Owner is unable entitled to raise purchase in the ADS Rights Offers, pursuant to Article VI hereof, and (iii) upon the proper completion and execution of the Subscription Form, in accordance with the terms thereof and hereof.
4.3 The ADS Rights Agent is authorized to waive proof of authority to sign (including the right to waive signatures of co-fiduciaries and proof of appointment or authority of any fiduciary or other person acting in a minimum of $2,500,000 (net of expensesrepresentative capacity) in connection with any subscription with respect to which:
(a) the New ADSs to which the Subscription Form relates are registered in the name of an executor, administrator, trustee, custodian for a minor or other fiduciary and has been executed by such Record Owner provided that the New ADSs purchased are to be issued in the name of such Record Owner;
(b) the New ADSs to which the Subscription Form relates are registered in the name of a corporation and the Subscription Form has been executed by an officer of such corporation, provided that the New ADSs purchased are to be issued in the name of such corporation;
(c) the Subscription Form has been executed by a bank, trust company or broker as agent for the Record Owner to which such Subscription Form relates, provided that the New ADSs purchased are to be issued in the name of such Record Owner; or
(d) the New ADSs to which such Subscription Form relates are registered in the name of a decedent and the Subscription Form has been executed by a person who purports to act as the executor or administrator of such decedent’s estate, provided that (i) the New ADSs are to be issued in the name of such person as executor or administrator of such decedent’s estate, (ii) the check tendered in payment of such subscription is drawn for the proper amount and to the order of The Bank Of New York and is otherwise in order, and (iii) there is no evidence actually known to the ADS Rights Offering Agent indicating that such person is not the duly authorized representative which such person purports to be.
4.4 In all cases other than those described in Sections 4.3(a) through (d) above, the ADS Rights Agent will be required to obtain all necessary proof of authority to sign in connection with subscriptions for New ADSs; provided, however, that in the event that such proof of authority has not been received on or prior to the Expiration Date, the ADS Rights Agent may obtain advice from the Company as to whether any such subscriptions may be accepted and the ADS Rights Agent shall have no liability whatsoever in the event it acts in good faith in accordance with such advice nor shall the ADS Rights Agent be required to accept subscriptions for New ADSs in the absence of such proof in the event it does not receive such advice from the Company prior to the Expiration Date (unless and shall have no liability whatsoever for any such minimum is waived or reduced by the Company’s board of directors and with the prior written consent of Maxim Group LLC (which consent will not be unreasonably withheld)), Continental shall, upon the receipt of the Liquidation Letter in the form attached hereto as Exhibit 4 and executed by the Company and Maxim Group LLC, liquidate the segregated account in which the subscription monies were held as promptly as practicable and distribute the funds to each respective subscribing stockholder who elected to exercise its Rightsaction.
(b) Advise the Company daily by facsimile transmission and confirm by letter to the attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Company Representative”) as to the total number of shares of Common Stock Subscribed for, the total number of Rights partially Subscribed for and the amount of funds received, with cumulative totals for each; and in addition advise the Company Representative, by telephone at (▇▇▇) ▇▇▇-▇▇▇▇, confirmed by facsimile transmission, 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 Subscribed for and the number of shares of Common Stock unsubscribed for.
Appears in 1 contract
Acceptance of Subscriptions. Upon acceptance a. The Company hereby authorizes and directs the Agent to accept subscriptions for New ADSs on behalf of the Company upon the proper completion and execution of an ADS Rights Certificate, surrender of the applicable ADS Rights Certificate and delivery of the ADS Subscription Deposit Price for the New ADSs, in accordance with the terms thereof and hereof. The Company further authorizes the Agent to refuse to accept, in its reasonable discretion, any improperly completed or unexecuted ADS Rights Certificate.
b. The Company authorizes the Agent to waive proof of authority to sign (including the right to waive signatures of co-fiduciaries and proof of appointment or authority of any fiduciary or other person acting in a Subscription, Continental shall from time representative capacity) in connection with any subscription with respect to time during the offeringwhich:
(ai) Hold all monies received the surrendered ADS Rights Certificate is registered in the name of one or more individuals or an executor, administrator, trustee, custodian for a dedicatedminor or other fiduciary and has been executed by such registered holder or holders, non-interest bearing account provided that the New ADSs subscribed for are to be issued in the name of such registered holder or holders;
(ii) the surrendered ADS Rights Certificate is registered in the name of a corporation and has been executed by an officer of such corporation, provided that the New ADSs subscribed for are to be issued in the name of such corporation;
(iii) the surrendered ADS Rights Certificate has been executed by a bank, trust company or broker as agent for the benefit registered holder thereof, provided that the New ADSs subscribed for are to be issued in the name of such registered holder; and
(iv) the surrendered ADS Rights Certificate is registered in the name of a decedent and has been executed by a person who purports to act as the executor or administrator of such decedent’s estate, provided that (A) such subscription is for not more than 10 New ADSs, (B) the New ADSs are to be issued in the name of such person as executor or administrator of such decedent’s estate, (C) the check tendered in payment of such subscription is drawn for the proper amount and to the order of the Company. Promptly following the Expiration TimeAgent, Continental shall, upon the receipt of the Distribution Letter and is otherwise in the form attached hereto as Exhibit 3 and executed by the Company and Maxim Group LLC, distribute to the Company the funds from exercise of the Basic Subscription Rights and Over-Subscription Rights in such account and following the Expiration Date issue (in physical form or electronically through the facilities of DTC, in each case in a manner approved by the Company) certificates for shares of Common Stock issuable with respect to Subscriptions that have been accepted. Continental will not be obligated to calculate or pay interest to any holder or any other party claiming through a holder or otherwise. It is hereby agreed immediately following the effective date of the Subscription, immediately available funds, represented by certified check, money order, or wire transfer but and (D) there is no evidence indicating that such person is not personal check, will be deposited with Continentalthe duly authorized representative which such person purports to be. In all cases other than those described in clauses (i) through (iv) above, the Agent will obtain all necessary proof of authority to sign in connection with the subscriptions for New ADSs, provided, however, that in the event that the Rights Offering is such proof of authority has not consummated because the Company (i) has cancelled been received on or terminated the Rights Offering or (ii) is unable to raise a minimum of $2,500,000 (net of expenses) in the Rights Offering prior to the Expiration Date (unless Date, the Agent shall obtain advice from the Company as to whether any such minimum is waived subscriptions may be accepted.
c. The Company authorizes the Agent to accept customary letters of indemnification from commercial banks, trust companies or reduced eligible guarantor institutions that are members of a Medallion Signature Guarantee Program with respect to nonconforming aspects of documents delivered in connection with subscriptions for New ADSs.
d. On each Business Day during the ADS Subscription Period, the Agent shall deposit in the NY Account the aggregate amount of the ADS Subscription Deposit Price received by the Company’s board Agent on such day in respect of directors and with the prior written consent payments made upon exercise of Maxim Group LLC (which consent will not be unreasonably withheld)), Continental shall, upon the receipt of the Liquidation Letter in the form attached hereto as Exhibit 4 and executed by the Company and Maxim Group LLC, liquidate the segregated account in which the subscription monies were held as promptly as practicable and distribute the funds to each respective subscribing stockholder who elected to exercise its ADS Rights.
(b) Advise the Company daily by facsimile transmission and confirm by letter to the attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Company Representative”) as to the total number of shares of Common Stock Subscribed for, the total number of Rights partially Subscribed for and the amount of funds received, with cumulative totals for each; and in addition advise the Company Representative, by telephone at (▇▇▇) ▇▇▇-▇▇▇▇, confirmed by facsimile transmission, 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 Subscribed for and the number of shares of Common Stock unsubscribed for.
Appears in 1 contract
Acceptance of Subscriptions. Upon To enable the Bank and the General Partner to make credit and investor decisions, respectively, each prospective Investor must complete and deliver to the General Partner a Purchaser Financial Statement in the form included in the Subscription Packet accompanying this Memorandum, or a substitute financial statement containing the same information as provided therein, and pages one and two of the prospective Investor's most recently filed Form 1040 U.S. Individual Income Tax Return. An Investor that pays the full amount of his Unit purchase price with a check at subscription and whose subscription is received and accepted by the Partnership, will become a Limited Partner in the Partnership, and his subscription funds will be released from escrow to the Partnership. Acceptance by the General Partner of a subscription of an Investor that elects to finance a portion of the Unit purchase price with the proceeds of a Limited Partner ▇▇▇▇ is conditioned upon the Bank's approval of such loan. See "Terms of the Offering - Limited Partner Loans." If the financing Investor is otherwise acceptable to the Partnership, after receipt of the Bank's approval, the Partnership will inform the Escrow Agent that it has accepted the Investor's subscription and the Escrow Agent will release the Loan Documents to the Bank and the Bank will pay the proceeds from the Limited Partner Loan to the Partnership. The Investor will become a Limited Partner in the Partnership at the time the Bank releases the proceeds of his Limited Partner Loan to the Partnership. Subscriptions may be rejected in whole or in part by the Partnership and need not be accepted in the order received. To the extent the Partnership reduces an Investor's subscription as provided above, the Investor's cash Unit purchase price, or the principal amount of his Limited Partner Note, as the case may be, will be proportionately refunded and reduced. Notice of acceptance of an Investor's subscription to purchase Units and his Percentage Interest in the Partnership will be furnished promptly after acceptance of the Investor's Subscription. Limited Partner Loans The purchase price for the Units is payable in cash. The prospective Investor may pay for the Units with personal funds alone or in part with such funds, together with either loan proceeds personally borrowed by the Investor under a SubscriptionLimited Partner Loan or other loan. Financing under the Limited Partner Loans was arranged by the Partnership with the Bank as provided in the Limited Partner Loan Commitment, Continental shall attached hereto as Appendix B. Prospective Investors should review carefully all the provisions contained in the Limited Partner Loan Commitment and the terms of the Limited Partner Note and Loan and Security Agreement with their counsel and financial advisors. Neither the Partnership nor the General Partner endorses or recommends to the prospective Investors the desirability of obtaining financing from the Bank nor does the summary of the Loan Documents provided herein constitute legal advice. If the prospective Investor wishes to finance a portion of the purchase price of his Units as provided herein, he must deliver to the Sales Agent upon submission of his Subscription Packet an executed Limited Partner Note payable to the Bank and Note Addendum, the form of which are attached as Exhibit A to the Limited Partner Loan Commitment, a Loan and Security Agreement, the form of which is attached as Exhibit B to the Limited Partner Loan Commitment, a Security Agreement, the form of which is attached as Exhibit C to the Limited Partner Loan Commitment and two UCC-1's, the form of which are attached to the Subscription Packet (collectively, the "Loan Documents"). In no event may the maximum amount borrowed per Unit exceed $8,663. The Limited Partner Note is repayable in twelve (12) predetermined installments in the respective amounts set forth in the Limited Partner Loan Commitment. The installments are payable on each January 15th, April 15th, June 15th and September 15th commencing on January 15, 2001 (assuming the Closing occurs prior to August 31, 2000), with a thirteenth (13th) and final installment in an amount equal to the principal balance then owed on the Limited Partner Note and all accrued, unpaid interest thereon due and payable on the third anniversary of the first installment date. Interest accrues at the Bank's "Prime Rate," as the same may change from time to time during time. The Prime Rate refers to that rate of interest established by the offering:
(a) Hold all monies received Bank and identified as such in literature published and circulated within the Bank's offices. Such term is used as a dedicatedmeans of identifying a rate of interest index and not as a representation by the Bank that such rate is necessarily the lowest or most favorable rate of interest offered to borrowers of the Bank generally. A prospective Investor will have no claim or right of action based on such premise. Under the terms of the Limited Partner Loan, non-interest bearing account the Bank may extend the maturity date for the benefit Limited Partner Note and increase installment payments thereunder in the event interest rates substantially increase. See the form of the Company. Promptly following Limited Partner Note attached as Exhibit A to the Expiration Time, Continental shall, upon the receipt of the Distribution Letter in the form Limited Partner Loan Commitment which is attached hereto as Exhibit 3 and executed Appendix B. The Limited Partner Note will be secured by the Company and Maxim Group LLC, distribute to the Company the funds from exercise of the Basic Subscription Rights and Over-Subscription Rights in such account and following the Expiration Date issue (in physical form or electronically through the facilities of DTC, in each case in a manner approved by the Company) certificates for shares of Common Stock issuable cash flow distributions payable with respect to Subscriptions that have been acceptedthe prospective Investor's Partnership Interest as provided in the Loan and Security Agreement and the Security Agreement and as evidenced by the UCC-1s. Continental will not be obligated By executing the Loan and Security Agreement, the prospective Investor requests the Bank to calculate or extend the Limited Partner Loan Commitment to him if he is approved for a Limited Partner Loan. The Loan and Security Agreement also authorizes (i) the Bank to pay interest to any holder or any other party claiming through a holder or otherwise. It is hereby agreed immediately following the effective date proceeds of the Subscription, immediately available funds, Limited Partner Note directly to the Partnership; and (ii) the Partnership to remit funds directly to the Bank out of the prospective Investor's share of any Distributions represented by certified check, money order, or wire transfer but not personal check, will be deposited with Continentalthe prospective Investor's percentage Partnership Interest to fund installment payments due on the prospective Investor's Limited Partner Note. In the event that the Rights Offering is not consummated because Distributions are insufficient for full payment of any installment due under the Company (i) has cancelled or terminated Limited Partner Note, the Rights Offering or (ii) is unable to raise a minimum Limited Partner himself shall be liable for the timely payment of $2,500,000 (net any remaining sums due under the Limited Partner Note. See the form of expenses) in the Rights Offering prior Loan and Security Agreement attached as Exhibit B to the Expiration Date (unless such minimum Limited Partner Loan Commitment which is waived or reduced by the Company’s board of directors and with the prior written consent of Maxim Group LLC (which consent will not be unreasonably withheld)), Continental shall, upon the receipt of the Liquidation Letter in the form attached hereto as Exhibit 4 and executed Appendix B. If the prospective Investor is approved by the Company Bank and Maxim Group LLC, liquidate the segregated account in which the subscription monies were held as promptly as practicable and distribute the funds to each respective subscribing stockholder who elected to exercise its Rights.
(b) Advise the Company daily by facsimile transmission and confirm by letter is acceptable to the attention General Partner, the Escrow Agent will, upon acceptance of ▇▇the Investor's subscription by the General Partner, release the Loan Documents to the Bank and the Bank will pay the proceeds of the Limited Partner Note to the Partnership to fund a portion of the Investor's Unit purchase. The prospective Investor will have substantial exposure under the Limited Partner Note. Regardless of the results of Partnership operations, a prospective Investor will remain liable to the Bank under his Limited Partner Note according to its terms. The Bank can accelerate the entire principal amount of the Limited Partner Note in the event the Bank in good faith believes the prospect of timely payment or performance by the prospective Investor is impaired or the Bank otherwise in good ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ itself or its collateral insecure and upon certain other events, including, but not limited to, nonpayment of any installment. The Bank may also request additional collateral in the event it deems the Limited Partner Note insufficiently secured. A Limited Partner's liability under a Limited Partner Note also continues regardless of whether the Limited Partner remains a limited partner in the Partnership. A Limited Partner's liability under a Limited Partner Note is directly with the Bank. As a consequence, such liability cannot be avoided by claims, defenses or set-offs the Limited Partner may have against the Partnership, the General Partner or their Affiliates. In addition to the suitability requirements discussed below, the prospective Investor must be approved by the Bank for purposes of his delivery of the Limited Partner Note. The Bank has established its own criteria for approving the creditworthiness of a prospective Investor and has not established objective minimum suitability standards. Instead, the Bank is empowered to accept or reject prospective Investors. See "Risk Factors - Other Investment Risks - Liability Under Limited Partner Loan." Subscription Period; Closing The subscription period will commence on the date hereof and will terminate at 5:00 p.m., Eastern time, on August 9, 2000 (the “Company Representative”) as "Closing Date"), unless sooner terminated by the General Partner or unless extended for an additional period up to the total number 180 days. See "Plan of shares of Common Stock Subscribed for, the total number of Rights partially Subscribed for and the amount of funds received, with cumulative totals for each; and in addition advise the Company Representative, by telephone at (▇▇▇) ▇▇▇-▇▇▇▇, confirmed by facsimile transmission, 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 Subscribed for and the number of shares of Common Stock unsubscribed forDistribution."
Appears in 1 contract
Sources: Confidential Private Placement Memorandum (Prime Medical Services Inc /Tx/)
Acceptance of Subscriptions. Upon acceptance (a) The Company hereby authorizes and directs the ADS Rights Agent to accept subscriptions for New ADSs on behalf of a Subscriptionthe Company upon payment of the Subscription Price and the exercise of ADS Rights Certificates in accordance with the terms thereof and hereof. The Company further authorizes the ADS Rights Agent to refuse to accept, Continental in its discretion, any improperly completed or unexecuted ADS Rights Certificate. Notwithstanding the foregoing, without further authorization from the Company, the ADS Rights Agent shall from time to time during accept, on or before the offeringExpiration Date, except where otherwise specified, any of the following:
(ai) Hold all monies any subscription effected in accordance with the terms of the ADS Rights Certificates and received by the ADS Rights Agent on or before the Expiration Date;
(ii) any subscription with respect to which a subscriber has failed to execute an ADS Rights Certificate in the manner provided by the terms thereof, provided that (A) the subscriber has indicated on such ADS Rights Certificate, or by written communication, the manner in which the subscriber wishes to subscribe and (B) proper payment has been made by such subscriber;
(iii) any subscription by payment of the Subscription Price accompanied by a dedicatedcheck drawn on a U.S. bank, non-interest bearing account notwithstanding that such check may not be cleared prior to the Expiration Date, provided, however, that the ADS Rights Agent will not deliver the new ADRs evidencing the New ADSs to the subscribing party until such subscribing party’s check has cleared and provided, further, that in the event such party’s check does not clear, the ADS Rights Agent shall use its best efforts to sell such New ADSs to cover the payment for such subscription at a public or private sale, at such place or places and upon such terms as it may deem proper, and the ADS Rights Agent may allocate the proceeds of such sales for the benefit account of the Companysubscribers upon an averaged or other practicable basis without regard to any distinctions among such subscribers because of exchange restrictions or otherwise, and provided, further, that if such proceeds of sale are insufficient to cover the payment for such subscription, the Company shall indemnify the ADS Rights Agent against any losses it may incur in the event such check is not cleared by the paying bank. Promptly following In connection with any funds advanced by the Expiration TimeADS Rights Agent pending clearance (or failure of clearance) of any checks, Continental shallthe Company shall reimburse, upon and pay, the receipt ADS Rights Agent any and all of the Distribution Letter its expenses incurred in connection therewith plus interest on all funds advanced as if such advanced funds were in the form attached hereto as Exhibit 3 of a loan by the ADS Rights Agent to the Company.
(iv) any subscription by an individual (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by an individual (and not by a corporation, partnership or fiduciary) other than the subscriber, provided, that (a) the ADS Rights Certificate surrendered therewith has been duly executed by the Company subscriber, (b) the subscriber is the registered holder of such ADS Rights Certificate, (c) the check tendered in payment of such subscription is drawn for the proper amount and Maxim Group LLC, distribute to the Company the funds from exercise order of the Basic Subscription ADS Rights Agent, and Overis otherwise in order and (d) there is no evidence indicating that such check was delivered to the subscriber by the drawer thereof for any purpose other than the payment of the accompanying subscription;
(v) any subscription by a custodian on behalf of a minor which is accompanied by a check drawn by such custodian, if the provisos set forth in clause (iv) above are satisfied; and
(vii) any subscription by an individual, (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by a corporation, partnership or fiduciary other than the subscriber, if the provisos set forth in clause (iv) above are satisfied.
(b) The Company authorizes the ADS Rights Agent to waive proof of authority to sign (including the right to waive signatures of co-Subscription Rights in such account fiduciaries and following the Expiration Date issue (in physical form proof of appointment or electronically through the facilities authority of DTC, in each case any fiduciary or other person acting in a manner approved by the Companyrepresentative capacity) certificates for shares of Common Stock issuable in connection with any subscription with respect to Subscriptions which:
(i) the surrendered ADS Rights Certificate is registered in the name of an executor, administrator, trustee, custodian for a minor or other fiduciary and has been executed by such registered holder, provided that have the New ADSs subscribed for are to be issued in the name of such registered holder;
(ii) the surrendered ADS Rights Certificate is registered in the name of a corporation and has been accepted. Continental will executed by an officer of such corporation, provided that the New ADSs subscribed for are to be issued in the name of such corporation;
(iii) the surrendered ADS Rights Certificate has been executed by a bank, trust company or broker as agent for the registered holder thereof, provided that the New ADSs subscribed for are to be issued in the name of such registered holder; or
(iv) the surrendered ADS Rights Certificate is registered in the name of a decedent and has been executed by a person who purports to act as the executor or administrator of such decedent’s estate, provided that (a) such subscription is for not more than 50 New ADSs, (b) the New ADSs are to be obligated issued in the name of such person as executor or administrator of such decedent’s estate, (c) the check tendered in payment of such subscription is drawn for the proper amount and to calculate or pay interest to any holder or any other party claiming through a holder or otherwise. It is hereby agreed immediately following the effective date order of the SubscriptionADS Rights Agent, immediately available funds, represented by certified check, money and is otherwise in order, or wire transfer but and (d) there is no evidence indicating that such person is not personal checkthe duly authorized representative which such person purports to be. In all cases other than those described in clauses (i) through (iv) above, the ADS Rights Agent will be deposited required to obtain all necessary proof of authority to sign in connection with Continental. In subscriptions for New ADSs; provided, however, that in the event that such proof of authority has not been received on or prior to the Expiration Date, the ADS Rights Offering is not consummated because Agent may obtain advice from the Company (i) has cancelled or terminated its U.S. counsel as to whether any such subscriptions may be accepted and the ADS Rights Offering or (ii) is unable to raise a minimum of $2,500,000 (net of expenses) Agent shall have no liability whatsoever in the event it acts in good faith in accordance with such advice nor shall the ADS Rights Offering Agent be required to issue such New ADSs in the event it does not receive such advice from the Company prior to the Expiration Date (unless and shall have no liability whatsoever for any such minimum is waived or reduced by the Company’s board of directors and with the prior written consent of Maxim Group LLC (which consent will not be unreasonably withheld)), Continental shall, upon the receipt of the Liquidation Letter in the form attached hereto as Exhibit 4 and executed by the Company and Maxim Group LLC, liquidate the segregated account in which the subscription monies were held as promptly as practicable and distribute the funds to each respective subscribing stockholder who elected to exercise its Rightsaction.
(b) Advise the Company daily by facsimile transmission and confirm by letter to the attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Company Representative”) as to the total number of shares of Common Stock Subscribed for, the total number of Rights partially Subscribed for and the amount of funds received, with cumulative totals for each; and in addition advise the Company Representative, by telephone at (▇▇▇) ▇▇▇-▇▇▇▇, confirmed by facsimile transmission, 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 The Company authorizes the ADS Rights Agent to accept customary letters of indemnification from Eligible Institutions with respect to non-conforming aspects of documents delivered in any event on or before 3:30 p.m., connection with subscriptions for 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 Subscribed for and the number of shares of Common Stock unsubscribed forADSs.
Appears in 1 contract
Acceptance of Subscriptions. Upon The acceptance of a Subscription, Continental shall from time to time during subscriptions is at the offering:
(a) Hold all monies received in a dedicated, non-interest bearing account for the benefit discretion of the Company. Promptly following the Expiration Time, Continental shall, upon the receipt of the Distribution Letter in the form attached hereto as Exhibit 3 and executed The Company may require additional information prior to determining whether to accept a subscription. Subscription payments should be made by the Company and Maxim Group LLC, distribute wire to the Company the funds from exercise of the Basic Subscription Rights and Over-Subscription Rights in such account and following the Expiration Date issue (in physical form or electronically through the facilities of DTC, in each case in a manner approved by the Company) certificates for shares of Common Stock issuable with respect to Subscriptions that have been accepted“Clean Energy Solutions”. Continental will not be obligated to calculate or pay interest to any holder or any other party claiming through a holder or otherwise. It is hereby agreed immediately following the effective date of the Subscription, immediately available funds, represented by certified check, money order, or Payments via wire transfer but not personal checkshould be made pursuant to instructions provided in Exhibit B hereto. For additional information or to have any questions answered, will be deposited with Continentalplease contact M▇. In the event that the Rights Offering is not consummated because the Company (i) has cancelled or terminated the Rights Offering or (ii) is unable to raise a minimum of $2,500,000 (net of expenses) in the Rights Offering prior to the Expiration Date (unless such minimum is waived or reduced by the Company’s board of directors and with the prior written consent of Maxim Group LLC (which consent will not be unreasonably withheld)), Continental shall, upon the receipt of the Liquidation Letter in the form attached hereto as Exhibit 4 and executed by the Company and Maxim Group LLC, liquidate the segregated account in which the subscription monies were held as promptly as practicable and distribute the funds to each respective subscribing stockholder who elected to exercise its Rights.
(b) Advise the Company daily by facsimile transmission and confirm by letter to the attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Company Representative”) as to the total number of shares of Common Stock Subscribed for, the total number of Rights partially Subscribed for and the amount of funds received, with cumulative totals for each; and in addition advise the Company RepresentativeCompany’s Chief Executive Officer, by telephone at (▇▇▇) ▇▇▇-▇▇▇▇▇ Ext. 814. No prospective investor will be deemed to have purchased any Securities unless and until such time as all of the following conditions to closing have occurred: (1) a Subscription Agreement and (2) a Purchaser Questionnaire have been fully completed and duly and validly executed by such prospective investor, confirmed delivered to the Company, and this Subscription Agreement is accepted in writing by facsimile transmissionthe Company and (3) the Purchase Price (as defined in the Subscription Agreement) shall have been paid in full. Ladies and Gentlemen: The undersigned understands that Clean Energy Technologies, Inc., incorporated under the laws of the State of Nevada (the “Company”), is offering units (each, a “Unit”) with each Unit consisting of one (1) share of common stock, par value $0.001, of the amount Company (the “Common Stock” and a warrant (the “Warrant”) to purchase one (1) share of funds received identified Common Stock, at an exercise price of $1.60 per share, expiring one year from the date hereof (the “Offering”) to the undersigned pursuant to the terms of this Subscription Agreement. The Unit, together with the Common Stock issued thereunder, the Warrant and the Common Stock issuable upon the exercise of the Warrant are referred to as the “Securities”).The undersigned further understands that (i) the Offering is being made without registration of the Securities under the Securities Act of 1933, as amended (the “Securities Act”), and is being made only to “accredited investors” (as defined in accordance with Rule 501(a) of Regulation D under the Securities Act) under an exemption available under Rule 506(b) of Regulation D, and (aii) above, deposited, available the undersigned will not be deemed to have purchased any Units unless and until such time as all of the following conditions to closing have occurred: (A) this Subscription Agreement and such other supplemental subscription or transferred in accordance with (a) above, with cumulative totals; and
(c) As promptly stock purchase agreements or documentation 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 are requested by the Company Representative have been duly and validly executed by the undersigned, delivered to the Company and accepted by the Company (B) the undersigned has completed and executed a Purchaser Questionnaire and (C) the Purchase Price for the Units shall have been paid in accordance with (b) above of the number of shares Subscribed for and the number of shares of Common Stock unsubscribed forfull.
Appears in 1 contract
Sources: Subscription Agreement (Clean Energy Technologies, Inc.)
Acceptance of Subscriptions. Upon acceptance 4.1. The ADS Rights Agent is hereby authorized and directed to receive subscriptions for New ADSs relating to newly issued Shares on behalf of the Company throughout the Subscription Period. Record Owners shall make payment to the ADS Rights Agent of the Deposit Amount in U.S. dollars. Such payment must be received by the ADS Rights Agent no later than 5:00 p.m., New York time, on the Expiration Date. Any funds that the ADS Rights Agent receives during the Subscription Period from Record Owners in respect of payments for New ADSs shall be deposited in an account at the ADS Rights Agent that the ADS Rights Agent designates solely for such purpose (the "Deposit Account") and such funds shall remain in the Deposit Account until they are distributed in accordance with Section 6.2. As promptly as practicable after the ADS Rights Agent receives each Subscription Form, the ADS Rights Agent shall determine whether the Record Owner sending such Subscription Form has properly completed and executed such form and has submitted the correct Deposit Amount for the New ADSs. If such form is not properly completed, is unexecuted or if such Record Owner did not send the correct Deposit Amount, then the ADS Rights Agent will send a notice to such Record Owner requesting such Record Owner to correct its Subscription Form or submit the proper Deposit Amount, as the case may be. Except as set forth below, if such Record Owner does not correct its Subscription Form or submit the proper Deposit Amount, as the case may be, by the Expiration Date, such Record Owner’s right to purchase New ADSs in the ADS Rights Offer shall be deemed to be unexercised and the ADS Rights Agent shall promptly refund the amount deposited to such Record Owner. The ADS Rights Agent will require that payment of the Deposit Amount be in the form of a Subscriptioncertified or official bank check, Continental money order or wire transfer. Notwithstanding the foregoing, without further authorization from the Company, except where otherwise specified or as otherwise notified in writing by the Company prior to the Expiration Date, the following Subscription Forms shall from time be deemed to time during the offeringbe properly completed:
(a) Hold all monies received in any subscription with respect to which a dedicated, non-interest bearing account for the benefit of the Company. Promptly following the Expiration Time, Continental shall, upon the receipt of the Distribution Letter Record Owner has failed to execute a Subscription Form in the form attached hereto as Exhibit 3 manner provided by the terms thereof, provided that (1) the Record Owner has indicated on such Subscription Form or by written communication, the manner in which the Record Owner wishes to subscribe and (2) proper payment has been made by such Record Owner;
(b) any subscription by an individual (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by an individual (and not by a corporation, partnership or fiduciary) other than the Record Owner, provided that (1) the Subscription Form submitted therewith has been duly executed by the Company Record Owner, (2) the Record Owner is the Record Owner to which such Subscription Form relates, (3) the check tendered in payment of such subscription is drawn for the proper amount and Maxim Group LLC, distribute to the Company order of The Bank of New York and is otherwise in order, and (4) there is no evidence actually known to the funds from exercise ADS Rights Agent indicating that such check was delivered to the Record Owner by the drawer thereof for any purpose other than the payment of the Basic Subscription accompanying subscription;
(c) any subscription by a custodian on behalf of a minor which is accompanied by a check drawn by an individual (and not by a corporation, partnership or fiduciary) other than the Record Owner, if the provisos set forth in clause (b) above are satisfied; or
(d) any subscription by an individual (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by a corporation, partnership or fiduciary other than the Record Owner, if the provisos set forth in clause (b) above are satisfied.
4.2. The ADS Rights and Over-Subscription Rights in such account and following the Expiration Date issue (in physical form or electronically through the facilities of DTC, in each case in a manner approved by the Company) certificates for shares of Common Stock issuable with respect to Subscriptions that have been accepted. Continental will not be obligated to calculate or pay interest to any holder or any other party claiming through a holder or otherwise. It Agent is hereby agreed immediately following the effective date authorized to accept subscriptions for New ADSs relating to newly issued Shares on behalf of the Subscription, immediately available funds, represented by certified check, money order, or wire transfer but not personal check, will be deposited with Continental. In the event that the Rights Offering is not consummated because the Company (i) has cancelled or terminated the Rights Offering or (ii) is unable to raise a minimum of $2,500,000 (net of expenses) in the Rights Offering prior to on the Expiration Date (unless such minimum is waived or reduced by the Company’s board of directors and with the prior written consent of Maxim Group LLC (which consent will not be unreasonably withheld)), Continental shall, upon the receipt of the Liquidation Letter in the form attached hereto as Exhibit 4 and executed by the Company and Maxim Group LLC, liquidate the segregated account in which the subscription monies were held as promptly as practicable and distribute the funds to each respective subscribing stockholder who elected to exercise its Rights.
(b) Advise the Company daily by facsimile transmission and confirm by letter to the attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Company Representative”) as to the total number of shares of Common Stock Subscribed for, the total number of Rights partially Subscribed for and the amount of funds received, with cumulative totals for each; and in addition advise the Company Representative, by telephone at (▇▇▇) ▇▇▇-▇▇▇▇, confirmed by facsimile transmission, 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 Subscribed for and the number of shares of Common Stock unsubscribed for.Date,
Appears in 1 contract
Acceptance of Subscriptions. Upon acceptance 1. The Rights Agent is hereby authorized and directed to receive subscriptions for the Shares on behalf of a Subscription, Continental shall from time to time the Company throughout the Subscription Period. Any funds that the Rights Agent receives during the offeringSubscription Period from Holders in respect of payments for Shares shall be deposited in an interest-bearing account at The Bank of New York that the Rights Agent designates solely for such purpose (the “Deposit Account”) and such funds shall remain in the Deposit Account until they are distributed to the Company in accordance with Article VI hereof. As promptly as practicable after the Rights Agent receives a Subscription Certificate from a Holder, the Rights Agent shall determine whether the Holder that sent such Subscription Certificate has properly completed and executed such Subscription Certificate and has submitted the correct payment for the Shares being subscribed for. If such Subscription Certificate is not properly completed, is unexecuted or if such Holder did not send the correct payment amount, then the Rights Agent will send a notice to such Holder instructing such Holder to amend its Subscription Certificate or submit the proper payment amount, as the case may be. If such Holder does not amend its Subscription Certificate or submit the proper payment amount, as the case may be, by the Expiration Date, such Holder’s right to purchase Shares in the Rights Offer shall be deemed to be unexercised. Notwithstanding the foregoing, without further authorization from the Company, except where otherwise specified or as otherwise notified in writing by the Company prior to the Expiration Date, the following Subscription Certificates shall be deemed to be properly completed:
(a) Hold all monies received in any subscription with respect to which a dedicated, non-interest bearing account for the benefit of the Company. Promptly following the Expiration Time, Continental shall, upon the receipt of the Distribution Letter Holder has failed to execute a Subscription Certificate in the form attached hereto as Exhibit 3 manner provided by the terms thereof, provided that (1) the Holder has indicated on such Subscription Certificate or by other written communication, the manner in which the Holder wishes to subscribe and (2) proper payment has been made by such Holder;
(b) any subscription by an individual (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by an individual (and not by a corporation, partnership or fiduciary) other than the Holder, provided that (1) the Subscription Certificate submitted therewith has been duly executed by the Company Holder, (2) the Holder is the Holder to which such Subscription Certificate relates, (3) the check tendered in payment of such subscription is drawn for the proper amount and Maxim Group LLC, distribute to the Company order of The Bank of New York and is otherwise in order, and (4) there is no evidence actually known to the funds from exercise Rights Agent indicating that such check was delivered to the Holder by the drawer thereof for any purpose other than the payment of the Basic Subscription accompanying subscription;
(c) any subscription by a custodian on behalf of a minor which is accompanied by a check drawn by an individual (and not by a corporation, partnership or fiduciary) other than the Holder, if the provisos set forth in clause (b) above are satisfied; or
(d) any subscription by an individual (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by a corporation, partnership or fiduciary, if the provisos set forth in clause (b) above are satisfied.
2. The Rights and Over-Subscription Rights in such account and following the Expiration Date issue (in physical form or electronically through the facilities of DTC, in each case in a manner approved by the Company) certificates for shares of Common Stock issuable with respect to Subscriptions that have been accepted. Continental will not be obligated to calculate or pay interest to any holder or any other party claiming through a holder or otherwise. It Agent is hereby agreed immediately following the effective date authorized to accept subscriptions for Shares on behalf of the Subscription, immediately available funds, represented by certified check, money order, or wire transfer but not personal check, will be deposited with Continental. In the event that the Rights Offering is not consummated because the Company (i) has cancelled or terminated at any time during the Rights Offering or Subscription Period, and (ii) upon the proper completion and execution of the applicable Subscription Certificate in accordance with the terms thereof and hereof.
3. The Rights Agent is unable authorized to raise waive proof of authority to sign (including the right to waive signatures of co-fiduciaries and proof of appointment or authority of any fiduciary or other person acting in a minimum of $2,500,000 (net of expensesrepresentative capacity) in connection with any subscription with respect to which:
(a) the Rights Offering prior Shares to which the Expiration Date (unless such minimum is waived or reduced by the Company’s board of directors and with the prior written consent of Maxim Group LLC (which consent will not be unreasonably withheld)), Continental shall, upon the receipt of the Liquidation Letter Subscription Certificate relate are registered in the form attached hereto as Exhibit 4 name of an executor, administrator, trustee, custodian for a minor or other fiduciary and have been executed by such Holder provided that the Company and Maxim Group LLC, liquidate Shares purchased are to be issued in the segregated account in which the subscription monies were held as promptly as practicable and distribute the funds to each respective subscribing stockholder who elected to exercise its Rights.name of such Holder;
(b) Advise the Company daily by facsimile transmission and confirm by letter Shares to which the attention Subscription Certificate relate are registered in the name of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Company Representative”) as to the total number of shares of Common Stock Subscribed for, the total number of Rights partially Subscribed for a corporation and the amount Subscription Certificate has been executed by an officer of funds receivedsuch corporation, with cumulative totals for each; and provided that the Shares purchased are to be issued in addition advise the Company Representative, by telephone at (▇▇▇) ▇▇▇-▇▇▇▇, confirmed by facsimile transmission, name of the amount of funds received identified in accordance with (a) above, deposited, available or transferred in accordance with (a) above, with cumulative totals; andsuch corporation;
(c) As promptly the Subscription Certificate has been executed by a bank, trust company or broker as possible but agent for the Holder to which such Subscription Certificate relates, provided that the Shares purchased are to be issued in any event on the name of such Holder; or
(d) the Shares to which such Subscription Certificate relate are registered in the name of a decedent and the Subscription Certificate has been executed by a person who purports to be the executor or before 3:30 p.m.administrator of such decedent’s estate, provided that (1) the Shares are to be issued in the name of such person as executor or administrator of such decedent’s estate, (2) the check tendered in payment of such subscription is drawn for the proper amount and to the order of The Bank Of New York City Timeand is otherwise in order, on and (3) there is no evidence actually known to the first full business day following Rights Agent indicating that such person is not the Expiration Time, advise the Company Representative in accordance with (b) above of the number of shares Subscribed for and the number of shares of Common Stock unsubscribed forduly authorized executor or administrator which such person purports to be.
Appears in 1 contract
Sources: Rights Agency Agreement (Latin American Export Bank)
Acceptance of Subscriptions. Upon acceptance 1. The ADS Subscription Agent is hereby authorized and directed to receive subscriptions for ADSs on behalf of a Subscription, Continental shall from time to time the Company beginning on the Effective Date and ending on the Expiration Date (the "Subscription Period"). Any funds that the ADS Subscription Agent receives during the offeringSubscription Period from holders in respect of payments for ADSs shall be deposited in a non-interest bearing account that the ADS Subscription Agent designates solely for such purpose (the "Deposit Account") and such funds shall remain in the Deposit Account until they are distributed to the Company in accordance with Article IX hereof.
2. The Company hereby authorizes and directs the ADS Subscription Agent to accept subscriptions for New ADSs on behalf of the Company upon the proper completion and execution of Warrants in accordance with the terms thereof and hereof. The Company further authorizes the ADS Subscription Agent to refuse to accept, in its discretion, any improperly completed or unexecuted Warrant.
3. Notwithstanding the foregoing, without further authorization from the Company, except where otherwise specified or as otherwise notified in writing by the Company prior to the Expiration Date, the following Warrants shall be deemed to be properly completed:
(a) Hold all monies received in a dedicated, non-interest bearing account for the benefit of the Company. Promptly following the Expiration Time, Continental shall, upon the receipt of the Distribution Letter in the form attached hereto as Exhibit 3 and executed by the Company and Maxim Group LLC, distribute to the Company the funds from exercise of the Basic Subscription Rights and Over-Subscription Rights in such account and following the Expiration Date issue (in physical form or electronically through the facilities of DTC, in each case in a manner approved by the Company) certificates for shares of Common Stock issuable any subscription with respect to Subscriptions that have been accepted. Continental will not be obligated to calculate or pay interest to any holder or any other party claiming through which a holder or otherwise. It is hereby agreed immediately following the effective date of the Subscription, immediately available funds, represented by certified check, money order, or wire transfer but not personal check, will be deposited with Continental. In the event that the Rights Offering is not consummated because the Company (i) has cancelled or terminated the Rights Offering or (ii) is unable failed to raise execute a minimum of $2,500,000 (net of expenses) Warrant in the Rights Offering prior to the Expiration Date (unless such minimum is waived or reduced manner provided by the Company’s board of directors and with terms thereof, provided that (1) the prior holder has indicated on such Warrant or by written consent of Maxim Group LLC (which consent will not be unreasonably withheld))communication, Continental shall, upon the receipt of the Liquidation Letter in the form attached hereto as Exhibit 4 and executed by the Company and Maxim Group LLC, liquidate the segregated account manner in which the subscription monies were held as promptly as practicable holder wishes to subscribe and distribute the funds to each respective subscribing stockholder who elected to exercise its Rights.(2) proper payment has been made by such holder;
(b) Advise any subscription by an individual (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by an individual (and not by a corporation, partnership or fiduciary) other than the Company daily holder, provided that (1) the Warrant submitted therewith has been duly executed by facsimile transmission the holder, (2) the holder is the holder to which such Warrant relates, (3) the check tendered in payment of such subscription is drawn for the proper amount and confirm by letter to the attention order of The Bank of New York - A/C ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ plc and is otherwise in order, and (4) there is no evidence actually known to the “ADS Subscription Agent indicating that such check was delivered to the holder by the drawer thereof for any purpose other than the payment of the accompanying subscription;
(c) any subscription by a custodian on behalf of a minor which is accompanied by a check drawn by an individual (and not by a corporation, partnership or fiduciary) other than the holder, if the provisos set forth in clause (b) above are satisfied; or
(d) any subscription by an individual (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by a corporation, partnership or fiduciary other than the holder, if the provisos set forth in clause (b) above are satisfied.
4. The ADS Subscription Agent is hereby authorized to accept subscriptions for ADSs on behalf of the Company Representative”(i) as to on the Expiration Date, (ii) after determining the total number of shares of Common Stock Subscribed forADSs that an owner is entitled to purchase in the ADS Offering, pursuant to Article 3 hereof, and (iii) upon the total number of Rights partially Subscribed for proper completion and the amount of funds received, with cumulative totals for each; and in addition advise the Company Representative, by telephone at (▇▇▇) ▇▇▇-▇▇▇▇, confirmed by facsimile transmission, execution of the amount of funds received identified Warrant, in accordance with the terms thereof and hereof.
5. The ADS Subscription Agent is hereby authorized to accept subscriptions for ADSs on behalf of the Company if, on or before the Expiration Date (i) the ADS Subscription Agent has received payment in full of the Dollar Subscription Price, plus the UK SDRT and a completed "Notice of Guaranteed Delivery" in the form provided by the ADS Subscription Agent, and (ii) the ADS Subscription Agent has received a properly executed warrant by 12:00 noon (New York City time) on August 30, 2000.
6. The ADS Subscription Agent is authorized to waive proof of authority to sign (including the right to waive signatures of co-fiduciaries and proof of appointment or authority of any fiduciary or other person acting in a representative capacity) in connection with any subscription with respect to which:
(a) abovethe ADSs to which the Warrant relates are registered in the name of an executor, depositedadministrator, available trustee, custodian for a minor or transferred other fiduciary and has been executed by such registered holder provided that the ADSs purchased are to be issued in accordance with the name of such holder;
(ab) abovethe ADSs to which the Warrant relates are registered in the name of a corporation and the Warrant has been executed by an officer of such corporation, with cumulative totals; andprovided that the ADSs purchased are to be issued in the name of such corporation;
(c) As promptly the Warrant has been executed by a bank, trust company or broker as possible but agent for the holder to which such Warrant relates, provided that the ADSs purchased are to be issued in any event on the name of such holder; or
(d) the ADSs to which such Warrant relates are registered in the name of a decedent and the Warrant has been executed by a person who purports to act as the executor or before 3:30 p.m.administrator of such decedent's estate, provided that (1) the ADSs are to be issued in the name of such person as executor or administrator of such decedent's estate, (2) the check tendered in payment of such subscription is drawn for the proper amount and to the order of The Bank Of New York City Timeand is otherwise in order, on and (3) there is no evidence actually known to the first full business day following ADS Subscription Agent indicating that such person is not the Expiration Timeduly authorized representative which such person purports to be.
7. The ADS Subscription Agent is hereby authorized to waive any defect or irregularity, advise or permit a defect or irregularity to be corrected within such time as it may determine, or reject the Company Representative in accordance with (b) above purported exercise of the number of shares Subscribed for and the number of shares of Common Stock unsubscribed forany ADS Right.
Appears in 1 contract
Acceptance of Subscriptions. Upon acceptance (a) The Company hereby authorizes and directs the ADS Rights Agent to accept subscriptions for New ADSs on behalf of a Subscriptionthe Company upon payment of the Subscription Price per New ADS subscribed for and the exercise of ADS Rights Certificates in accordance with the terms thereof and hereof. The Company further authorizes the ADS Rights Agent to refuse to accept, Continental in its discretion, any improperly completed or unexecuted ADS Rights Certificate. The ADS Rights Agent shall only accept subscriptions for New ADSs that are accompanied by bank checks. Neither personal, corporate nor certified checks shall be accepted. Notwithstanding the foregoing, without further authorization from time to time during the offeringCompany, the ADS Rights Agent shall accept, on or before the ADS Expiration Date, except where otherwise specified, any of the following:
(ai) Hold all monies received any subscription effected in a dedicated, non-interest bearing account for accordance with the benefit terms of the Company. Promptly following the Expiration Time, Continental shall, upon the receipt of the Distribution Letter in the form attached hereto as Exhibit 3 ADS Rights Certificates and executed received by the Company and Maxim Group LLC, distribute to ADS Rights Agent on or before the Company the funds from exercise of the Basic Subscription Rights and Over-Subscription Rights in such account and following the ADS Expiration Date issue Date;
(in physical form or electronically through the facilities of DTC, in each case in a manner approved by the Companyii) certificates for shares of Common Stock issuable any subscription with respect to Subscriptions which a subscriber has failed to execute an ADS Rights Certificate in the manner provided by the terms thereof, provided that have been accepted. Continental will not be obligated to calculate or pay interest to any holder or any other party claiming through a holder or otherwise. It is hereby agreed immediately following (A) the effective date of the Subscription, immediately available funds, represented by certified check, money ordersubscriber has indicated on such ADS Rights Certificate, or wire transfer but not personal checkby written communication, will be deposited with Continental. In the event that the Rights Offering is not consummated because the Company (i) has cancelled or terminated the Rights Offering or (ii) is unable to raise a minimum of $2,500,000 (net of expenses) in the Rights Offering prior to the Expiration Date (unless such minimum is waived or reduced by the Company’s board of directors and with the prior written consent of Maxim Group LLC (which consent will not be unreasonably withheld)), Continental shall, upon the receipt of the Liquidation Letter in the form attached hereto as Exhibit 4 and executed by the Company and Maxim Group LLC, liquidate the segregated account manner in which the subscriber wishes to subscribe and (B) proper payment has been made by such subscriber;
(iii) any subscription monies were held as promptly as practicable by payment of the Subscription Price multiplied by the number of New ADSs subscribed for accompanied by a bank check issued by, and distribute the funds to each respective subscribing stockholder who elected to exercise its Rightsdrawn on, a U.S. bank; and
(iv) any subscription by a custodian on behalf of a minor which is accompanied by a bank check issued by, and drawn on, a U.S. bank.
(b) Advise The Company authorizes the ADS Rights Agent to waive proof of authority to sign (including the right to waive signatures of co-fiduciaries and proof of appointment or authority of any fiduciary or other person acting in a representative capacity) in connection with any subscription with respect to which:
(i) the surrendered ADS Rights Certificate is registered in the name of an executor, administrator, trustee, custodian for a minor or other fiduciary and has been executed by such registered holder, provided that the New ADSs subscribed for are to be issued in the name of such registered holder;
(ii) the surrendered ADS Rights Certificate is registered in the name of a corporation and has been executed by an officer of such corporation, provided that the New ADSs subscribed for are to be issued in the name of such corporation; or
(iii) the surrendered ADS Rights Certificate has been executed by a bank, trust company or broker as agent for the registered holder thereof, provided that the New ADSs subscribed for are to be issued in the name of such registered holder; or
(iv) the surrendered ADS Rights Certificate is registered in the name of a decedent and has been executed by a person who purports to act as the executor or administrator of such decedent’s estate, provided that (a) such subscription is for not more than 50 New ADSs, (b) the New ADSs are to be issued in the name of such person as executor or administrator of such decedent’s estate, (c) the bank check tendered in payment of such subscription is drawn for the proper amount and to the order of the ADS Rights Agent, and is otherwise in order, and (d) there is no evidence indicating that such person is not the duly authorized representative which such person purports to be. In all cases other than those described in clauses (i) through (iv) above, the ADS Rights Agent will be required to obtain all necessary proof of authority to sign in connection with subscriptions for New ADSs; provided, however, that in the event that such proof of authority has not been received on or prior to the ADS Expiration Date, the ADS Rights Agent may obtain advice from the Company daily by facsimile transmission and confirm by letter to the attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Company Representative”) or its U.S. counsel as to the total number of shares of Common Stock Subscribed for, the total number of Rights partially Subscribed for whether any such subscriptions may be accepted and the amount of funds received, with cumulative totals for each; and ADS Rights Agent shall have no liability whatsoever in addition advise the Company Representative, by telephone at (▇▇▇) ▇▇▇-▇▇▇▇, confirmed by facsimile transmission, of the amount of funds received identified event it acts in good faith in accordance with (a) above, deposited, available or transferred such advice nor shall the ADS Rights Agent be required to issue such New ADSs in accordance with (a) above, with cumulative totals; andthe event it does not receive such advice from the Company prior to the ADS Expiration Date and shall have no liability whatsoever for any such action.
(c) As promptly as possible but The Company authorizes the ADS Rights Agent to accept customary letters of indemnification from Eligible Institutions with respect to non-conforming aspects of documents delivered in any event on or before 3:30 p.m., connection with subscriptions for 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 Subscribed for and the number of shares of Common Stock unsubscribed forADSs.
Appears in 1 contract
Acceptance of Subscriptions. Upon acceptance of a Subscription, Continental shall from time to time during the offering:
(a) Hold all monies received in a dedicated, non-interest bearing account for the benefit of the Company. Promptly following the Expiration Time, Continental shall, upon the receipt of the Distribution Letter in the form attached hereto as Exhibit 3 and executed by the Company and Maxim Group LLCCompany, distribute to the Company the funds from exercise of the Basic Subscription Rights and Over-Subscription Rights in such account and following the Expiration Date issue (in physical form or electronically through the facilities of DTC, in each case in a manner approved by the Company) certificates for shares of Common Stock and Warrants issuable with respect to Subscriptions that have been accepted. Continental will not be obligated to calculate or pay interest to any holder or any other party claiming through a holder or otherwise. It is hereby agreed immediately following the effective date of the Subscription, immediately available funds, represented by certified check, money order, or wire transfer but not personal check, will be deposited with Continental. In the event that the Rights Offering is not consummated because the Company (i) has withdrawn, cancelled or terminated the Rights Offering or (ii) is unable to raise a minimum of $2,500,000 (net of expenses) in the Rights Offering prior to the Expiration Date (unless such minimum is waived or reduced by the Company’s board of directors and with the prior written consent of Maxim Group LLC (which consent will not be unreasonably withheld))Offering, Continental shall, upon the receipt of the Liquidation Letter in the form attached hereto as Exhibit 4 and executed by the Company and Maxim Group LLCCompany, liquidate the segregated account in which the subscription monies were held as promptly as practicable and distribute the funds to each respective subscribing stockholder who elected to exercise its Rights.
(b) Advise the Company daily by facsimile transmission and confirm by letter to the attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ________________ (the “Company Representative”) as to the total number of shares of Common Stock Subscribed for, the total number of Rights partially Subscribed and Warrants subscribed for and the amount of funds received, with cumulative totals for each; and in addition advise the Company Representative, by telephone at (▇▇▇) ▇▇▇-▇▇▇▇_____________, confirmed by facsimile transmission_________________, of the amount of funds received identified in accordance with (a) above, deposited, available 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 Eastern Daylight Savings 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 Subscribed for and the number of shares of Common Stock unsubscribed forunsubscribed.
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Acceptance of Subscriptions. Upon acceptance 1. The Rights Agent is hereby authorized and directed to receive subscriptions for ADSs on behalf of a Subscription, Continental shall from time to time the Company throughout the Subscription Period. Any funds that the Rights Agent receives during the offeringSubscription Period from Owners in respect of payments for ADSs shall be deposited in an interest bearing account at the Rights Agent that the Rights Agent designates solely for such purpose (the "Deposit Account") and such funds shall remain in the Deposit Account until they are distributed to the Company in accordance with Article __, paragraph __ hereof. As promptly as practicable after the Rights Agent receives each Owner's Instruction, the Rights Agent shall determine whether the Owner sending such Owner's Instruction has properly completed and executed such forms and has submitted the correct payment for the ADSs. If such form is not properly completed, is unexecuted or, if such Owner did not send the correct payment amount then the Rights Agent will send a notice to such Owner instructing such Owner to amend its Owner's Instruction or submit the proper payment amount, as the case may be. Except as set forth in Section ______ hereof, if such Owner does not amend its Owner's Instruction or submit the proper payment amount, as the case may be, by the Expiration Date, such Owner's right to purchase ADSs in the Rights Offer shall be deemed to be unexercised. Notwithstanding the foregoing, without further authorization from the Company, except where otherwise specified or as otherwise notified in writing by the Company prior to the Expiration Date, the following Owner's Instructions shall be deemed to be properly completed:
(a) Hold all monies received in a dedicated, non-interest bearing account for the benefit of the Company. Promptly following the Expiration Time, Continental shall, upon the receipt of the Distribution Letter any subscription with respect to which an Owner has failed to execute an Owner's Instruction in the form attached hereto as Exhibit 3 manner provided by the terms thereof, provided that (1) the Owner has indicated on such Owner's Instruction or by written communication, the manner in which the Owner wishes to subscribe and (2) proper payment has been made by such Owner;
(b) any subscription by an individual (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by an individual (and not by a corporation, partnership or fiduciary) other than the Owner, provided that (1) the Owner's Instruction submitted therewith has been duly executed by the Company Owner, (2) the Owner is the Owner to which such Owner's Instruction relates, (3) the check tendered in payment of such subscription is drawn for the proper amount and Maxim Group LLC, distribute to the Company order of The Bank of New York and is otherwise in order, and (4) there is no evidence actually known to the funds from exercise Rights Agent indicating that such check was delivered to the Owner by the drawer thereof for any purpose other than the payment of the Basic Subscription accompanying subscription;
(c) any subscription by a custodian on behalf of a minor which is accompanied by a check drawn by an individual (and not by a corporation, partnership or fiduciary) other than the Owner, if the provisos set forth in clause (b) above are satisfied; or
(d) any subscription by an individual (and not by a corporation, partnership or fiduciary) which is accompanied by a check drawn by a corporation, partnership or fiduciary other than the Owner, if the provisos set forth in clause (b) above are satisfied.
2. The Rights and Over-Subscription Rights in such account and following the Expiration Date issue (in physical form or electronically through the facilities of DTC, in each case in a manner approved by the Company) certificates for shares of Common Stock issuable with respect to Subscriptions that have been accepted. Continental will not be obligated to calculate or pay interest to any holder or any other party claiming through a holder or otherwise. It Agent is hereby agreed immediately following the effective date authorized to accept subscriptions for ADSs on behalf of the Subscription, immediately available funds, represented by certified check, money order, or wire transfer but not personal check, will be deposited with Continental. In the event that the Rights Offering is not consummated because the Company (i) has cancelled or terminated on the Rights Offering or Expiration Date, (ii) after determining the total number of ADSs that an owner is unable entitled to raise a minimum of $2,500,000 (net of expenses) purchase in the Rights Offering prior Offer, pursuant to Article VI hereof, and (iii) upon the Expiration Date (unless such minimum is waived or reduced by proper completion and execution of the Company’s board of directors and Owner's Instruction, in accordance with the prior written consent terms thereof and hereof.
3. The Rights Agent is authorized to waive proof of Maxim Group LLC authority to sign (including the right to waive signatures of co-fiduciaries and proof of appointment or authority of any fiduciary or other person acting in a representative capacity) in connection with any subscription with respect to which:
(a) the ADSs to which consent will not be unreasonably withheld)), Continental shall, upon the receipt of the Liquidation Letter Owner's Instruction relates are registered in the form attached hereto as Exhibit 4 name of an executor, administrator, trustee, custodian for a minor or other fiduciary and has been executed by such Owner provided that the Company and Maxim Group LLC, liquidate ADSs purchased are to be issued in the segregated account in which the subscription monies were held as promptly as practicable and distribute the funds to each respective subscribing stockholder who elected to exercise its Rights.name of such Owner;
(b) Advise the Company daily by facsimile transmission and confirm by letter ADSs to which the attention Owner's Instructions relates are registered in the name of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Company Representative”) as to the total number of shares of Common Stock Subscribed for, the total number of Rights partially Subscribed for a corporation and the amount Owner's Instruction has been executed by an officer of funds receivedsuch corporation, with cumulative totals for each; and provided that the ADSs purchased are to be issued in addition advise the Company Representative, by telephone at (▇▇▇) ▇▇▇-▇▇▇▇, confirmed by facsimile transmission, name of the amount of funds received identified in accordance with (a) above, deposited, available or transferred in accordance with (a) above, with cumulative totals; andsuch corporation;
(c) As promptly the Owner's Instruction has been executed by a bank, trust company or broker as possible but agent for the Owner to which such Owner's Instruction relates, provided that the ADSs purchased are to be issued in any event on the name of such Owner; or
(d) the ADSs to which such Owner's Instructions relates are registered in the name of a decedent and the Owner's Instruction has been executed by a person who purports to act as the executor or before 3:30 p.m.administrator of such decedent's estate, provided that (1) the ADSs are to be issued in the name of such person as executor or administrator of such decedent's estate, (2) the check tendered in payment of such subscription is drawn for the proper amount and to the order of The Bank Of New York City Timeand is otherwise in order, on and (3) there is no evidence actually known to the first full business day following Rights Agent indicating that such person is not the Expiration Time, advise the Company Representative in accordance with (b) above of the number of shares Subscribed for and the number of shares of Common Stock unsubscribed forduly authorized representative which such person purports to be.
Appears in 1 contract
Sources: Rights Agency Agreement (Tricom Sa)
Acceptance of Subscriptions. Upon acceptance a. The Company hereby authorizes and directs the Agent to accept subscriptions for New ADSs on behalf of the Company upon the proper completion and execution of an ADS Rights Certificate, surrender of the applicable ADS Rights Certificate and delivery of the U.S. Dollar Payment for the New ADSs, in accordance with the terms thereof and hereof. The Company further authorizes the Agent to refuse to accept, in its reasonable discretion, any improperly completed or unexecuted ADS Rights Certificate.
b. The Company authorizes the Agent to waive proof of authority to sign (including the right to waive signatures of co-fiduciaries and proof of appointment or authority of any fiduciary or other person acting in a Subscription, Continental shall from time representative capacity) in connection with any subscription with respect to time during the offeringwhich:
(ai) Hold all monies received the surrendered ADS Rights Certificate is registered in the name of one or more individuals or an executor, administrator, trustee, custodian for a dedicatedminor or other fiduciary and has been executed by such registered holder or holders, non-interest bearing account provided that the New ADSs subscribed for are to be issued in the name of such registered holder or holders;
(ii) the surrendered ADS Rights Certificate is registered in the name of a corporation and has been executed by an officer of such corporation, provided that the New ADSs subscribed for are to be issued in the name of such corporation;
(iii) the surrendered ADS Rights Certificate has been executed by a bank, trust company or broker as agent for the benefit registered holder thereof, provided that the New ADSs subscribed for are to be issued in the name of such registered holder; and
(iv) the surrendered ADS Rights Certificate is registered in the name of a decedent and has been executed by a person who purports to act as the executor or administrator of such decedent’s estate, provided that (A) such subscription is for not more than New ADSs, (B) the New ADSs are to be issued in the name of such person as executor or administrator of such decedent’s estate, (C) the check tendered in payment of such subscription is drawn for the proper amount and to the order of the Company. Promptly following the Expiration TimeAgent, Continental shall, upon the receipt of the Distribution Letter and is otherwise in the form attached hereto as Exhibit 3 and executed by the Company and Maxim Group LLC, distribute to the Company the funds from exercise of the Basic Subscription Rights and Over-Subscription Rights in such account and following the Expiration Date issue (in physical form or electronically through the facilities of DTC, in each case in a manner approved by the Company) certificates for shares of Common Stock issuable with respect to Subscriptions that have been accepted. Continental will not be obligated to calculate or pay interest to any holder or any other party claiming through a holder or otherwise. It is hereby agreed immediately following the effective date of the Subscription, immediately available funds, represented by certified check, money order, or wire transfer but and (D) there is no evidence indicating that such person is not personal check, will be deposited with Continentalthe duly authorized representative which such person purports to be. In all cases other than those described in clauses (i) through (iv) above, the Agent will obtain all necessary proof of authority to sign in connection with the subscriptions for New ADSs, provided, however, that in the event that the Rights Offering is such proof of authority has not consummated because the Company (i) has cancelled been received on or terminated the Rights Offering or (ii) is unable to raise a minimum of $2,500,000 (net of expenses) in the Rights Offering prior to the Expiration Date (unless Date, the Agent shall obtain advice from the Company as to whether any such minimum is waived subscriptions may be accepted.
c. The Company authorizes the Agent to accept customary letters of indemnification from commercial banks, trust companies or reduced eligible guarantor institutions that are members of a Medallion Signature Guarantee Program with respect to nonconforming aspects of documents delivered in connection with subscriptions for New ADSs.
d. On each business day during the ADS Subscription Period, the Agent shall deposit in the NY Account all U.S. dollar amounts received by the Company’s board Agent on such day in respect of directors payments made upon exercise of Primary ADS Rights and with the prior written consent of Maxim Group LLC (which consent will not be unreasonably withheld)), Continental shall, upon the receipt of the Liquidation Letter in the form attached hereto as Exhibit 4 and executed by the Company and Maxim Group LLC, liquidate the segregated account in which the subscription monies were held as promptly as practicable and distribute the funds to each respective subscribing stockholder who elected to exercise its Oversubscription ADS Rights.
(b) Advise the Company daily by facsimile transmission and confirm by letter to the attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Company Representative”) as to the total number of shares of Common Stock Subscribed for, the total number of Rights partially Subscribed for and the amount of funds received, with cumulative totals for each; and in addition advise the Company Representative, by telephone at (▇▇▇) ▇▇▇-▇▇▇▇, confirmed by facsimile transmission, 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 Subscribed for and the number of shares of Common Stock unsubscribed for.
Appears in 1 contract
Sources: Rights Agency Agreement (Edp Energias De Portugal Sa)
Acceptance of Subscriptions. Upon acceptance 1. The Rights Agent is hereby authorized and directed to receive subscriptions for Common Shares and Additional Common Shares on behalf of the Company throughout the Subscription Period. Any funds that the Rights Agent receives during the Subscription Period from Holders in respect of payments for Common Shares shall be deposited in an interest-bearing account at the Rights Agent that the Rights Agent designates solely for such purpose (the “Deposit Account”). Such funds shall remain in the Deposit Account until they are distributed to the Company in accordance with Article VII, paragraph 1 hereof. As promptly as practicable after the Rights Agent receives each Holder’s Rights Certificate, the Rights Agent shall determine whether the Holder depositing such Holder’s Rights Certificate has properly completed and executed the subscription forms appended thereto and has submitted the correct aggregate Subscription Price for the Common Shares subscribed for under each of the Basic Subscription Privilege and the Additional Subscription Privilege (if applicable). The Subscription Price may only be deposited with the Rights Agent in the form of a Subscriptioncertified cheque, Continental bank draft or money order payable to “Odyssey Transfer and Trust Company, as Rights Agent”. If such subscription form is not properly completed, is unexecuted or, if such Holder did not send the correct aggregate Subscription Price for the Common Shares then the Rights Agent will send a notice to such Holder instructing such Holder to amend its Rights Certificate or submit the proper aggregate Subscription Price, as the case may be. Except as set forth in paragraph 3 below, if such Holder does not amend its Rights Certificate or submit the proper aggregate Subscription Price, as the case may be, by the Expiry Date, such Holder’s right to purchase Common Shares in the Rights Offering shall be deemed to be unexercised. Notwithstanding the foregoing, without further authorization from time the Company, except where otherwise specified or as otherwise notified in writing by the Company prior to time during the offeringExpiry Date, the following Rights Certificate shall be deemed to be properly completed: Any subscription with respect to which an Holder has failed to execute their Rights Certificate in the manner provided by the terms thereof, provided that: (1) the Holder has indicated on such Rights Certificate or by written communication, the manner in which the Holder wishes to subscribe; and (2) the proper aggregate Subscription Price has been made by such Holder to the Rights Agent;
2. The Rights Agent is hereby authorized to accept subscriptions for Common Shares and Additional Common Shares on behalf of the Company (i) on the Expiry Date, (ii) after determining the total number of Common Shares that a Holder is entitled to purchase in the Rights Offer, pursuant to Article II hereof, and (iii) upon the proper completion and execution of the Rights Certificate, in accordance with the terms thereof and hereof.
3. The Rights Agent is authorized to waive proof of authority to sign (including the right to waive signatures of co-fiduciaries and proof of appointment or authority of any fiduciary or other person acting in a representative capacity) in connection with any subscription with respect to which:
(a) Hold all monies received in a dedicated, non-interest bearing account for the benefit of Common Shares to which the Company. Promptly following the Expiration Time, Continental shall, upon the receipt of the Distribution Letter Rights Certificate relates are registered in the form attached hereto as Exhibit 3 name of an executor, administrator, trustee, custodian for a minor or other fiduciary and has been executed by the Company and Maxim Group LLC, distribute to the Company the funds from exercise of the Basic Subscription Rights and Over-Subscription Rights in such account and following the Expiration Date issue (in physical form or electronically through the facilities of DTC, in each case in a manner approved by the Company) certificates for shares of Common Stock issuable with respect to Subscriptions that have been accepted. Continental will not be obligated to calculate or pay interest to any holder or any other party claiming through a holder or otherwise. It is hereby agreed immediately following the effective date of the Subscription, immediately available funds, represented by certified check, money order, or wire transfer but not personal check, will be deposited with Continental. In the event that the Rights Offering is not consummated because the Company (i) has cancelled or terminated the Rights Offering or (ii) is unable to raise a minimum of $2,500,000 (net of expenses) in the Rights Offering prior to the Expiration Date (unless such minimum is waived or reduced by the Company’s board of directors and with the prior written consent of Maxim Group LLC (which consent will not be unreasonably withheld)), Continental shall, upon the receipt of the Liquidation Letter in the form attached hereto as Exhibit 4 and executed by the Company and Maxim Group LLC, liquidate the segregated account in which the subscription monies were held as promptly as practicable and distribute the funds to each respective subscribing stockholder who elected to exercise its Rights.
(b) Advise the Company daily by facsimile transmission and confirm by letter to the attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ provided that the Common Shares purchased are to be issued in the name of such Holder;
(b) the “Company Representative”) as Common Shares to which the total number Rights Certificate relates are registered in the name of shares of Common Stock Subscribed for, the total number of Rights partially Subscribed for a corporation and the amount Rights Certificate has been executed by an officer of funds receivedsuch corporation, with cumulative totals for eachprovided that the Common Shares purchased are to be issued in the name of such corporation; and in addition advise the Company Representative, by telephone at (▇▇▇) ▇▇▇-▇▇▇▇, confirmed by facsimile transmission, of the amount of funds received identified in accordance with (a) above, deposited, available or transferred in accordance with (a) above, with cumulative totals; andor
(c) As promptly the Rights Certificate has been executed by a bank, trust company or broker as possible but agent for the Holder to which such Rights Certificate relates, provided that the Common Shares purchased are to be issued 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 name of the number of shares Subscribed for and the number of shares of Common Stock unsubscribed forsuch Holder.
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