EXHIBIT 99.5
SUBSCRIPTION AGENT AGREEMENT
Date:
Mellon Bank, N.A.
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Attn: REORGANIZATION DEPARTMENT
Gentlemen:
, a corporation (the "Company") is making
an offer to issue (the "Subscription Offer") to the holders of record of its
outstanding shares of common stock par value $ per share (the "Common Stock"),
at the close of business on (the "Record Date"), the right to subscribe for
and purchase (each a "Right") shares of Series D preferred stock (the "Preferred
Stock") at a purchase price of $0.85 per share of Preferred Stock (the
"Subscription Price"), payable by cashier's or certified check, upon the terms
and conditions set forth herein. The term "Subscribed" shall mean submitted for
purchase from the Company by a stockholder in accordance with the terms of the
Subscription Offer, and the term "Subscription" shall mean any such submission.
The Subscription Offer will expire at , New York City Time, on
(the "Expiration Time"), unless the Company shall have extended the
period of time for which the Subscription Offer is open, in which event the term
"Expiration Time" shall mean the latest time and date at which the Subscription
Offer, as so extended by the Company from time to time, shall expire.
The Company filed a Registration Statement relating to the Subscription
Offer with the Securities and Exchange Commission under the Securities Act of
1933, as amended, on . Said Registration Statement was declared effective
on . The terms of the Preferred Stock are more fully described in the
Prospectus forming part of the Registration Statement as it was declared
effective, and the accompanying Letter of Instruction. Copies of the Prospectus,
the Letter of Instruction and the Notice of Guaranteed Delivery are annexed
hereto as Exhibit 1, Exhibit 2 and Exhibit 3, respectively. All terms used and
not defined herein shall have the same meaning as in the Prospectus. Promptly
after the Record Date, the Company will provide you with a list of holders of
Preferred Stock as of the Record Date (the "Record Stockholders List").
The Rights are evidenced by a non-transferable, non-saleable, subscription
certificate, (the "Certificate"), a copy of the form of which is annexed hereto
as Exhibit 4. The Certificate entitles the holders to subscribe, upon payment of
the Subscription Price, for shares of Preferred Stock at the rate of 2.56
share(s) for each Right evidenced by a Certificate (the "Basic Subscription
Privilege"). No fractional shares will be issued and holders are not permitted
to make a partial exercise of a Right. If, upon a holder's exercise of Right(s),
the total number of shares of Preferred Stock being purchased pursuant to the
Right(s) is not evenly divisible by one, the holder of the Right(s) can round up
or down to the nearest whole share of Preferred Stock. Reference is made to the
Prospectus for a complete description of the Subscription Privilege.
The Company hereby appoints you as subscription agent (the "Subscription
Agent") for the Subscription Offer and agrees with you as follows:
1) As Subscription Agent, you are authorized and directed to:
(A) Issue the Certificates in accordance with this Agreement in the names
of the holders of the Common Stock of record on the Record Date, keep such
records as are necessary for the purpose of recording such issuance, and furnish
a copy of such records to the Company. The Certificates may be signed on behalf
of the Subscription Agent by the manual or facsimile signature of a Vice
President or Assistant Vice President of the Subscription Agent, or by the
manual signature of any of its other authorized officers.
(B) Promptly after you receive the Record Stockholders List:
(a) mail or cause to be mailed, by first class mail, to each holder of
Common Stock of record on the Record Date whose address of record is within
the United States and Canada, (i) a Certificate evidencing the Rights to
which such stockholder is entitled under the Subscription Offer, (ii) a
copy of the Prospectus, (iii) a Letter of Instruction, (iv) a Notice of
Guaranteed Delivery and (v) a return envelope addressed to the Subscription
Agent; and
(b) mail or cause to be mailed, by air mail, to each holder of Common Stock
of record on the Record Date whose address of record is outside the United
States and Canada, or is an A.P.O. or F.P.O. address (i) a copy of the
Prospectus, (ii) a Notice of Guaranteed Delivery and (iii) a Letter of
Instruction (different from the Letter of Instruction sent to stockholders
whose address of record is within the United States and Canada). You shall
refrain from mailing Certificates issuable to any holder of Common Stock of
record on the Record Date whose address of record is outside the United
States and Canada, or is an A.P.O. or F.P.O. address, and hold such
Certificates for the account of such stockholder subject to such
stockholder making satisfactory arrangements with the Subscription Agent
for the exercise or other disposition of the Rights evidenced thereby, and
follow the instructions of such stockholder for the exercise, sale or other
disposition of such Rights if such instructions are received at or before
11:00 a.m., New York City Time;
(C) Mail or deliver a copy of the Prospectus (i) to each assignee or
transferee of Certificates upon your receiving appropriate documents to register
the assignment or transfer thereof and (ii) with Certificates for shares of
Preferred Stock when such are issued to persons other than the registered holder
of the Certificate.
(D) Accept Subscriptions upon the due exercise (including payment of the
Subscription Price) on or prior to the Expiration Time of Rights in accordance
with the terms of the Certificates and the Prospectus.
(E) Subject to the next sentence, accept Subscriptions from stockholders
whose Certificates are alleged to have been lost, stolen or destroyed upon
receipt by you of an affidavit of theft, loss or destruction and a bond of
indemnity in form and substance satisfactory to you, accompanied by payment of
the Subscription Price for the total number of shares of Preferred Stock
Subscribed for. Upon receipt of such affidavit and bond of indemnity and
compliance with any other applicable requirements, stop orders shall be placed
on said Certificates and you shall withhold delivery of the shares of Preferred
Stock Subscribed for until after the Certificates have expired and it has been
determined that the Rights evidenced by the Certificates have not otherwise been
purported to have been exercised or otherwise surrendered.
(F) Accept Subscriptions, without further authorization or direction from
the Company, without procuring supporting legal papers or other proof of
authority to sign (including without limitation proof of appointment of a
fiduciary or other person acting in a representative capacity), and without
signatures of co-fiduciaries, co-representatives or any other person:
(a) if the Certificate is registered in the name of a fiduciary and is
executed by and the Preferred Stock is to be issued in the name of such
fiduciary;
(b) if the Certificate is registered in the name of joint tenants and is
executed by one of the joint tenants, provided the certificate representing
the Preferred Stock is issued in the names of, and is to be delivered to,
such joint tenants;
(c) if the Certificate is registered in the name of a corporation and is
executed by a person in a manner which appears or purports to be done in
the capacity of an officer, or agent thereof, provided the Preferred Stock
is to be issued in the name of such corporation; or
(d) if the Certificate is registered in the name of an individual and is
executed by a person purporting to act as such individual's executor,
administrator or personal representative, provided, the Preferred Stock is
to be registered in the name of the subscriber as executor or administrator
of the estate of the deceased registered holder and there is no evidence
indicating the subscriber is not the duly authorized representative that he
purports to be.
(G) Accept Subscriptions not accompanied by Certificates if submitted by a
firm having membership in the New York Stock Exchange or another national
securities exchange or by a commercial bank or trust company having an office in
the United States together with the Notice of Guaranteed Delivery and
accompanied by proper payment for the total number of shares of Preferred Stock
Subscribed for.
(H) Accept Subscriptions even though unaccompanied by Certificates, under
the circumstances and in compliance with the terms and conditions set forth in
the Prospectus under the heading "SUBSCRIPTION OFFER - Method of Exercising
Rights".
(I) Refer to the Company for specific instructions as to acceptance or
rejection, Subscriptions received after the Expiration Time, Subscriptions not
authorized to be accepted pursuant to this Paragraph 1, and Subscriptions
otherwise failing to comply with the requirements of the Prospectus and the
terms and conditions of the Certificates.
(J) Upon acceptance of a Subscription:
(a) hold all monies received in a special account for the benefit of the
Company. Promptly following the Expiration Time you shall distribute
to the Company the funds in such account and issue certificates for
shares of Preferred Stock issuable with respect to Subscriptions which
have been accepted.
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 you and interest shall accrue on such funds ("Payment
Fund") prior to any payment date (date of distribution to the Rights
Holder) for the benefit of the Rights Holder in accordance with the
"Investment Provision" described below:
Mellon Bank, N.A. shall pay interest to the Rights Holder on the
average daily balance of the Payment Fund at the Dreyfus General Money
Market Class B Rate, less an investment service fee equal to $2,500.00
plus 1.00% per annum of the average daily balance of the Payment Fund
for a period up to but not including the date of transfer of funds to
the Company following the expiration of the Subscription.
Immediately available funds must be received prior to 12:00 p.m. Noon
Eastern Daylight Time. Funds received after this time will not earn
interest for the Rights Holder until the following business day.
Interest shall be paid immediately following the expiration and
acceptance of the Rights Subscription by the Company. Interest shall
not be paid unless all outstanding invoices have been paid by the
Company.
(b) advise the Company daily by telecopy and confirm by letter [ to
the attention of ] (the "Company Representative"), with copies
to [Underwriter, Address and Attention Party] as to the total number of
shares of Preferred Stock Subscribed for, total number of Rights sold,
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 [telephone number], confirmed by
telecopy, of the amount of funds received identified in accordance with (a)
above, deposited, available or transferred in accordance with (a) above,
with cumulative totals; and
(c) as promptly as possible but in any event on or before 3:30 p.m., New
York City Time, on the first full business day following the Expiration
Time, advise the Company Representative in accordance with (b) above of the
number of shares Subscribed for, the number of Subscription guarantees
received and the number of shares of Preferred Stock unsubscribed for.
(K) Upon completion of the Subscription Offer, you shall requisition
certificates from the Transfer Agent for the Common Stock for shares of
Preferred Stock Subscribed for.
2) (a) The Certificates shall be issued in registered form only. The
Company shall appoint and have in office at all times a Transfer Agent
and Registrar for the Certificates, satisfactory to you, which shall
keep books and records of the registration and transfers and exchanges
of Certificates (such books and records are hereinafter called the
"Certificate Register"). The Company shall promptly notify the
Transfer Agent and Registrar of the exercise of any Certificates. The
Company shall promptly notify you of any change in the Transfer Agent
and Registrar of the Certificates.
(b) All Certificates issued upon any registration of transfer or
exchange of Certificates shall be the valid obligations of the
Company, evidencing the same obligations, and entitled to the same
benefits under this Agreement, as the Certificates surrendered for
such registration of transfer or exchange.
(c) Any Certificate when duly endorsed in blank shall be deemed
negotiable, and when a Certificate shall have been so endorsed the
holder thereof may be treated by the Company, you and all other
persons dealing therewith as the absolute owner thereof for any
purpose and as the person entitled to exercise the rights represented
thereby, any notice to the contrary notwithstanding, but until such
transfer is registered in the Certificate Register, the Company and
you may treat the registered holder thereof as the owner for all
purposes.
3) You will follow your regular procedures to attempt to reconcile any
discrepancies between the number of shares of Preferred Stock that any
Certificate may indicate are to be issued to a stockholder and the number that
the Record Stockholders List indicates may be issued to such stockholder. In any
instance where you cannot reconcile such discrepancies by following such
procedures, you will consult with the Company for instructions as to the number
of shares of Preferred Stock, if any, you are authorized to issue. In the
absence of such instructions, you are authorized not to issue any shares of
Preferred Stock to such stockholder.
4) You will examine the Certificates received by you as Subscription Agent
to ascertain whether they appear to you to have been completed and executed in
accordance with the applicable Letter of Instruction. In the event you determine
that any Certificate does not appear to you to have been properly completed or
executed, or where the Certificates do not appear to you to be in proper form
for Subscription, or any other irregularity in connection with the Subscription
appears to you to exist, you will follow, where possible, your regular
procedures to attempt to cause such irregularity to be corrected. You are not
authorized to waive any irregularity in connection with the Subscription, unless
you shall have received from the Company the Certificate which was delivered,
duly dated and signed by an authorized officer of the Company, indicating that
any irregularity in such Certificate has been cured or waived and that such
Certificate has been accepted by the Company. If any such irregularity is
neither corrected nor waived, you will return to the subscribing stockholder (at
your option by either first class mail under a blanket surety bond or insurance
protecting you and the Company from losses or liabilities arising out of the
non-receipt or nondelivery of Certificates or by registered mail insured
separately for the value of such Certificates) to such stockholder's address as
set forth in the Subscription any Certificates surrendered in connection
therewith and any other documents received with such Certificates, and a letter
of notice to be furnished by the Company explaining the reasons for the return
of the Certificates and other documents.
5) Each document received by you relating to your duties hereunder shall be
dated and time stamped when received.
6) (a) For so long as this Agreement shall be in effect, the Company will
reserve for issuance and keep available free from preemptive rights a
sufficient number of shares of Preferred Stock to permit the exercise
in full of all Rights issued pursuant to the Subscription Offer.
Subject to the terms and conditions of this Agreement, you will
request the Transfer Agent for the Common Stock to issue certificates
evidencing the appropriate number of shares of Preferred Stock as
required from time to time in order to effectuate the Subscriptions.
(b) The Company shall take any and all action, including without
limitation obtaining the authorization, consent, lack of objection,
registration or approval of any governmental authority, or the taking
of any other action under the laws of the United States of America or
any political subdivision thereof, to insure that all shares of
Preferred Stock issuable upon the exercise of the Certificates at the
time of delivery of the certificates therefor (subject to payment of
the Subscription Price) will be duly and validly issued and fully paid
and nonassessable shares of Common
Stock, free from all preemptive rights and taxes, liens, charges and
security interests created by or imposed upon the Company with respect
thereto.
(c) The Company shall from time to time take all action necessary or
appropriate to obtain and keep effective all registrations, permits,
consents and approvals of the Securities and Exchange Commission and
any other governmental agency or authority and make such filings under
Federal and state laws which may be necessary or appropriate in
connection with the issuance, sale, transfer and delivery of
Certificates or Preferred Stock issued upon exercise of Certificates.
7) If certificates representing shares of Preferred Stock are to be
delivered by you to a person other than the person in whose name a surrendered
Certificate is registered, you will issue no certificate for Preferred Stock
until the Certificate so surrendered has been properly endorsed (or otherwise
put in proper form for transfer) and the person requesting such exchange has
paid any transfer or other taxes or governmental charges required by reason of
the issuance of a certificate for Preferred Stock in a name other than that of
the registered holder of the Certificate surrendered, or has established to your
satisfaction that any such tax or charge either has been paid or is not payable.
8) Should any issue arise regarding federal income tax reporting or
withholding, you will take such action as the Company instructs you in writing.
9) The Company may terminate this Agreement at any time by so notifying you
in writing. You may terminate this Agreement upon 30 days' prior notice to the
Company. Upon any such termination, you shall be relieved and discharged of any
further responsibilities with respect to your duties hereunder. Upon payment of
all your outstanding fees and expenses, you will forward to the Company or its
designee promptly any Certificate or other document relating to your duties
hereunder that you may receive after your appointment has so terminated.
Sections 11, 12, and 14 of this Agreement shall survive any termination of this
Agreement.
10) As agent for the Company hereunder you:
(a) shall have no duties or obligations other than those specifically set
forth herein or as may subsequently be agreed to in writing by you and the
Company;
(b) shall have no obligation to issue any shares of Preferred Stock unless
the Company shall have provided a sufficient number of certificates for
such Preferred Stock;
(c) shall be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value, or genuineness
of any Certificates surrendered to you hereunder or shares of
Preferred Stock issued in exchange therefor, and will not be required to
or be responsible for and will make no representations as to, the
validity, sufficiency, value or genuineness of the Subscription Offer;
(d) shall not be obligated to take any legal action hereunder; if, however,
you determine to take any legal action hereunder, and where the taking of
such action might, in your judgment, subject or expose you to any expense
or liability you shall not be required to act unless you shall have been
furnished with an indemnity satisfactory to you;
(e) may rely on and shall be fully authorized and protected in acting or
failing to act upon any certificate, instrument, opinion, notice, letter,
telegram, telex, facsimile transmission or other document or security
delivered to you and believed by you to be genuine and to have been signed
by the proper party or parties;
(f) shall not be liable or responsible for any recital or statement
contained in the Prospectus or any other documents relating thereto;
(g) shall not be liable or responsible for any failure on the part of the
Company to comply with any of its covenants and obligations relating to the
Subscription Offer, including without limitation obligations under
applicable securities laws;
(h) may rely on and shall be fully authorized and protected in acting or
failing to act upon the written, telephonic or oral instructions with
respect to any matter relating to you acting as Subscription Agent covered
by this Agreement (or supplementing or qualifying any such actions) of
officers of the Company;
(i) may consult with counsel satisfactory to you, including [insert the
name of your in-house counsel], and the advice of such counsel shall be
full and complete authorization and protection in respect of any action
taken, suffered, or omitted by you hereunder in good faith and in
accordance with the advice of such counsel;
(j) may perform any of your duties hereunder either directly or by or
through agents or attorneys and you shall not be liable or responsible for
any misconduct or negligence on the part of any agent or attorney appointed
with reasonable care by you hereunder; and
(k) are not authorized, and shall have no obligation, to pay any brokers,
dealers, or soliciting fees to any person.
11) In the event any question or dispute arises with respect to the proper
interpretation of the Subscription Offer or your duties hereunder or the rights
of the Company or of any stockholders surrendering Certificates pursuant to the
Subscription Offer, you shall not be required to act and shall not be held
liable or responsible for your refusal to act until the question or dispute has
been judicially settled (and, if appropriate, you may file a suit in
interpleader or for a declaratory judgment for such purpose) by final judgment
rendered by a court of competent jurisdiction, binding on all parties interested
in the matter which is no longer subject to review or appeal, or settled by a
written document in form and substance satisfactory to you and executed by the
Company and each such stockholder and party. In addition, you may require for
such purpose, but shall not be obligated to require, the execution of such
written settlement by all the stockholders and all other parties that may have
an interest in the settlement.
12) Any instructions given to you orally, as permitted by any provision of
this Agreement, shall be confirmed in writing by the Company as soon as
practicable. You shall not be liable or responsible and shall be fully
authorized and protected for acting, or failing to act, in accordance with any
oral instructions which do not conform with the written confirmation received in
accordance with this Section.
13) Whether or not any Certificates are surrendered to you, for your
services as Subscription Agent hereunder, the Company shall pay to you
compensation in accordance with the fee schedule attached as Exhibit A hereto,
together with reimbursement for out-of-pocket expenses, including reasonable
fees and disbursements of counsel.
14) (a) The Company covenants to indemnify and hold you harmless from and
against any loss, liability, claim or expense ("Loss") arising out of
or in connection with your duties under this Agreement, including the
costs and expenses of defending yourself against any Loss, unless such
Loss shall have been determined by a court of competent jurisdiction
to be a result of your gross negligence or intentional misconduct.
Anything in this agreement to the contrary notwithstanding, in no
event shall you be liable for special, indirect, incidental or
consequential loss or damage
of any kind whatsoever (including but not limited to lost profits),
even if you have been advised of the likelihood of such damages and
regardless of the form of action. Any liability of yours will be
limited to the amount of fees paid by Client hereunder.
(b) In the event any question or dispute arises with respect to the
proper interpretation of this Agreement or your duties hereunder or
the rights of the Company or of any stockholders surrendering
certificates for Shares pursuant to the Offer, you shall not be
required to act and shall not be held liable or responsible for your
refusal to act until the question or dispute has been judicially
settled (and you may, if you in your sole discretion deem it
advisable, but shall not be obligated to, file a suit in interpleader
or for a declaratory judgment for such purpose) by final judgment
rendered by a court of competent jurisdiction, binding on all
stockholders and parties interested in the matter which is no longer
subject to review or appeal, or settled by a written document in form
and substance satisfactory to you and executed by the Company and each
such stockholder and party. In addition, you may require for such
purpose, but shall not be obligated to require, the execution of such
written settlement by all the stockholders and all other parties that
may have an interest in the settlement.
The obligations of Company under this section shall survive the termination
of this Agreement.
15) If any provision of this Agreement shall be held illegal, invalid, or
unenforceable by any court, this Agreement shall be construed and enforced as if
such provision had not been contained herein and shall be deemed an Agreement
among us to the full extent permitted by applicable law.
16) The Company represents and Certificates that (a) it is duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation, (b) the making and consummation of the
Subscription Offer and the execution, delivery and performance of all
transactions contemplated thereby (including without limitation this Agreement)
have been duly authorized by all necessary corporate action and will not result
in a breach of or constitute a default under the certificate of incorporation or
bylaws of the Company or any indenture, agreement or instrument to which it is a
party or is bound, (c) this Agreement has been duly executed and delivered by
the Company and constitutes the legal, valid, binding and enforceable obligation
of it, (d) the Subscription Offer will comply in all material respects with all
applicable requirements of law and (e) to the best of its knowledge, there is no
litigation pending or threatened as of the date hereof in connection with the
Subscription Offer.
17) In the event that any claim of inconsistency between this Agreement and
the terms of the Subscription Offer arise, as they may from time to time be
amended, the terms of the Subscription Offer shall control, except with respect
to the duties, liabilities and rights, including compensation and
indemnification of you as Subscription Agent, which shall be controlled by the
terms of this Agreement.
18) Set forth in Exhibit B hereto is a list of the names and specimen
signatures of the persons authorized to act for the Company under this
Agreement. The Secretary of the Company shall, from time to time, certify to you
the names and signatures of any other persons authorized to act for the Company
under this Agreement.
19) Except as expressly set forth elsewhere in this Agreement, all notices,
instructions and communications under this Agreement shall be in writing, shall
be effective upon receipt and shall be addressed, if to the Company, to its
address set forth beneath its signature to this Agreement, or, if to the
Subscription Agent, to Mellon Bank, N.A., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇.▇. ▇.▇.▇▇▇▇▇:
Reorganization Department, or to such other address as a party hereto shall
notify the other parties.
20) This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to conflict of laws
rules or principles, and shall inure to the benefit of and be binding upon the
successors and assigns of the parties hereto; provided that this Agreement may
not be assigned by any party without the prior written consent of all other
parties.
21) No provision of this Agreement may be amended, modified or waived,
except in a written document signed by both parties.
Please acknowledge receipt of this letter and confirm your agreement
concerning your appointment as Subscription Agent, and the arrangements herein
provided, by signing and returning the enclosed copy hereof, whereupon this
Agreement and your acceptance of the terms and conditions herein provided shall
constitute a binding Agreement between us.
Very truly yours,
(Company)
By:_________________
Name:
Title:
Address for notices:
Accepted as of the date
above first written:
MELLON BANK, N.A.
AS SUBSCRIPTION AGENT
By:____________
Name:
Title:
Exhibit 1 Prospectus
Exhibit 2 Letter of Instruction
Exhibit 3 Notice of Guaranteed Delivery
Exhibit 4 Form of Certificate
EXHIBIT A
FEE SCHEDULE
EXHIBIT B
[COMPANY LETTERHEAD]
NAME POSITION SPECIMEN SIGNATURES