SUBSCRIPTION AND INFORMATION AGENCY AGREEMENT
SUBSCRIPTION AND INFORMATION AGENCY AGREEMENT dated as of __________,
1997 by and between ATLANTIC GULF COMMUNITIES CORPORATION (the "Company") and
AMERICAN STOCK TRANSFER & TRUST COMPANY as subscription agent and information
agent (the "Agent").
WHEREAS, the Company has caused a Registration Statement on Form S-3
(Registration No. 333-31939) under the Securities Act of 1933, as amended (the
"Act"), to be filed with the Securities and Exchange Commission (the
"Commission") relating to the distribution by the Company of transferable
subscription rights (the "Rights") to subscribe for units (the "Units"), each
Unit consisting of a share of Series B 20% Cumulative Redeemable Convertible
Preferred Stock ("Series B Preferred Stock") and warrants (the "Warrants") to
purchase two shares of the Company's common stock ("Common Stock"), which
registration statement was declared effective by the Commission on ______, 1997
(the "Effective Date") (such Registration Statement, in the form in which it
first becomes effective under the Act, and as it may thereafter be amended from
time to time, is referred to herein as the "Registration Statement"; the
distribution of the Rights and the issuance and sale, respectively, of the
Warrants and of Series B Preferred Stock, upon the exercise of Rights, as
contemplated by the Registration Statement, is referred to herein as the "Rights
Offering");
WHEREAS, the Rights will be distributed to holders of record of Common
Stock as of the close of business on October 8, 1997 (the "Record Date") at a
rate of .08898 of a Right for each share of Common Stock held on the Record Date
and the Rights will be evidenced by the Subscription Certificates (as defined)
in a form satisfactory to the Agent and the Company;
WHEREAS, the Company has reserved for issuance, and has authorized the
issuance of, an aggregate number of authorized and unissued shares of Common
Stock and of Series B Preferred Stock (the "Underlying Shares") equal to, in the
case of Common Stock, twice the aggregate number of Rights to be distributed
pursuant to the Rights Offering, and, in the case of Series B Preferred Stock,
the aggregate number of Rights to be distributed pursuant to the Rights
Offering;
WHEREAS, Rights holders will be entitled to subscribe to purchase Units
at a price of $10.00 per Unit (the "Subscription Price"); and
WHEREAS, the Company desires the Agent to act on its behalf in
connection with the Rights Offering as set forth herein, and the Agent is
willing so to act.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto hereby agree as follows:
SECTION 1. APPOINTMENT OF AGENT AND SERVICES OF INFORMATION AGENT.
(a) The Company hereby appoints the Agent to act as
subscription agent and information agent for the Company in accordance with the
instructions set forth in this Agreement, and the Agent hereby accepts such
appointment. The Company may from time to time appoint such co-Agents as it may
deem necessary or desirable.
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(b) The services to be provided by the Agent in its capacity
as information agent shall be as follows: (i) counseling the Company concerning
the operational elements of organization and timing of the offering; (ii)
assisting in the coordination of printing activities; (iii) determining the
material requirements; (iv) facilitating the distribution of materials to the
registered and beneficial owners of the Common Stock; (v) building a file of
eligible participants, including registered holders and beneficial holders
identified through the Agent's research; (vi) establishing a toll-free telephone
number for incoming calls; (vii) managing the calling campaign (including
calls); (viii) status reporting to management; and (ix) payment of all broker
forwarding invoices, subject to collection from the Company of monies for this
purpose.
SECTION 2. ISSUE OF SECURITIES.
(a) The Company has distributed or will distribute the Rights
to holders of record of Common Stock as of the close of business on the Record
Date. The Company will promptly notify the Agent upon the effectiveness of the
Registration Statement. As transfer agent for the Common Stock, the Agent shall
provide such assistance as the Company may require to effect the distribution of
the Rights to holders of record of Common Stock as of the close of business on
the Record Date, it being understood that Subscription Certificates (as defined
in Section 3(a) hereof) shall be mailed to record holders (except those located
outside of the United States) of the Common Stock together with a copy of the
Prospectus no later than two business days following the Effective Date or the
Record Date, whichever is later.
(b) The Company has authorized the issuance of and will hold
in reserve the Underlying Shares, and upon the valid exercise of Rights, the
Company will issue Series B Preferred Stock and Warrants to validly exercising
Rights holders as set forth in the Registration Statement.
SECTION 3. SUBSCRIPTION PRIVILEGE; FORM OF SUBSCRIPTION CERTIFICATES.
(a) The Rights shall be evidenced by subscription certificates
(the "Subscription Certificates"). The Subscription Certificates (and the form
of election to exercise Rights to be printed on the reverse thereof) shall be
substantially in the form attached as Exhibit A hereto. Any Subscription
Certificate may be transferred, split up, combined, or exchanged for another
Subscription Certificate provided that any resulting Subscription Certificate(s)
shall represent a whole number of Rights that is a multiple of three Rights. Any
Rights holder desiring to transfer, split up, combine, or exchange any
Subscription Certificate(s) shall make a request therefor by properly completing
the assignment section of the Subscription Certificate(s) and surrendering such
Certificate(s) at least one business days prior to the Expiration Date at the
principal office of the Agent. Thereupon the Agent shall date and deliver
Subscription Certificate(s) to the person(s) entitled to Subscription
Certificate(s) as so requested.
(b) Each Subscription Certificate shall, subject to the
provisions thereof, entitle the holder in whose name it is recorded to the
following:
(1) each Right will entitle the holder thereof
to purchase, at the Subscription Price, one Unit (the "Basic Subscription
Privilege"); and
(2) each holder of Rights who elects to exercise
the Basic Subscription Privilege in full will be entitled to subscribe (the
"Oversubsrciption Privilege") at the Subscription Price
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for additional Units not subscribed for through the exercise of the Basic
Subscription Privilege by other Rights holders (the "Excess Units"). If the
Excess Units are not sufficient to satisfy all subscriptions pursuant to the
Oversubscription Privilege, the Excess Units shall be allocated pro rata
(subject to the elimination of fractional shares) among those Rights holders
exercising the Oversubscription Privilege, in proportion to the number of shares
each beneficial holder subscribed for pursuant to the Basic Subscription
Privilege; provided, however, that if such pro rata allocation results in any
Rights holder being allocated a greater number of Excess Units than such holder
subscribed for pursuant to the exercise of such holder's Oversubscription
Privilege, then such holder shall be allocated only such number of Excess Units
as such holder subscribed for and the remaining Excess Units shall be allocated
among all other holders exercising the Oversubscription Privilege.
SECTION 4. SIGNATURE AND REGISTRATION.
(a) The Subscription Certificates shall be executed on behalf
of the Company by two of its executive officers. Any Subscription Certificate
may be signed on behalf of the Company by any person who, at the actual date of
the execution of such Subscription Certificate, shall be a proper officer of the
Company to sign such Subscription Certificate, even if at the date of the
execution of this Agreement or the date of the actual issuance of such
certificate any such person is not such an officer.
(b) The Agent will keep or cause to be kept, at its principal
offices in New York, books for registration and transfer of the Rights issued
hereunder. Such books shall show the names and addresses of the respective
holders of the Rights and the number of Rights evidenced by each outstanding
Subscription Certificate.
SECTION 5. MUTILATED, DESTROYED, LOST OR STOLEN SUBSCRIPTION
CERTIFICATES. Upon receipt by the Company and the Agent of evidence reasonably
satisfactory to them of the loss, theft, destruction or mutilation of a
Subscription Certificate, and, in case of loss, theft or destruction, of
indemnity and/or security satisfactory to them which may be in the form of an
open penalty bond, and reimbursement to the Company and the Agent of all
reasonable expenses incidental thereto, and upon surrender and cancellation of
the Subscription Certificate if mutilated, the Company will make and deliver a
new Subscription Certificate of like tenor to the Agent for delivery to the
registered owner in lieu of the Subscription Certificate so lost, stolen,
destroyed or mutilated. If required by the Company or the Agent, an indemnity
bond must be sufficient in the judgment of both to protect the Company, the
Agent or any agent thereof from any loss which any of them may suffer if a
Subscription Certificate is replaced.
SECTION 6. SUBSEQUENT ISSUE OF SUBSCRIPTION CERTIFICATES. Subsequent to
their original issuance, no Subscription Certificates shall be issued except
such Subscription Certificates issued in replacement of mutilated, destroyed,
lost or stolen Subscription Certificates pursuant to Section 5 hereof.
SECTION 7. EXERCISE OF RIGHTS; EXERCISE PRICE; EXPIRATION DATE.
(a) The holder of any Subscription Certificate may exercise
some or all of the Rights evidenced thereby (but not in amounts of less than
three Rights or an integral multiple thereof) by delivering to the Agent, on or
prior to 5:00 p.m., New York time, on ______, 1997 (the "Expiration Date"), a
properly completed and executed Subscription Certificate, including, if
required, a signature guarantee from an Eligible Institution (as defined in
Section 7(d) hereof) and mailing or delivering the Subscription Certificate to
the Agent at its corporate office specified in the Prospectus, together with
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payment of the Subscription Price for each Unit subscribed for pursuant to the
Basic Subscription Privilege and the Oversubscription Privilege.
(b) In the case of holders of Rights that are held of record
through The Depository Trust Company ("DTC"), (1) exercises of the Basic
Subscription Privilege may be effected by instructing DTC to transfer Rights
(such rights being "DTC Exercised Rights") from the DTC account of such holder
to the DTC account of the Agent, together with payment of the Subscription Price
for each Unit subscribed for pursuant to the Basic Subscription Privilege and
(2) exercises of the Oversubscription Privilege may be effected by properly
executing and delivering to the Agent on or prior to the Expiration Date, a DTC
Participant Oversubscription Exercise Form, the form of which is attached hereto
as Exhibit B, together with payment of the appropriate Subscription Price for
the number of Units for which the Oversubscription Privilege is to be exercised.
(c) If a Rights holder wishes to exercise Rights, but time
will not permit such holder to cause the Subscription Certificate(s) evidencing
such Rights to reach the Agent on or prior to the Expiration Date, such Rights
may nevertheless be exercised if all of the following conditions (the
"Guaranteed Delivery Procedures") are satisfied:
(1) such holder has caused payment in full of
the Subscription Price for each Unit being subscribed for pursuant to the Basic
Subscription Privilege and the Oversubscription Privilege to be received (in the
manner set forth in Section 7(g) hereof) by the Agent on or prior to the
Expiration Date;
(2) the Agent receives, on or prior to the
Expiration Date, a notice of guaranteed delivery (a "Notice of Guaranteed
Delivery"), substantially in the form provided with the Instructions distributed
with the Subscription Certificates, from a member firm of a registered national
securities exchange or a member of the National Association of Securities
Dealers, Inc., or a commercial bank or trust company having an office or
correspondent in the United States, stating the name of the exercising Rights
holder, the number of Rights represented by the Subscription Certificate(s) held
by such exercising holder, the number of Units being subscribed for pursuant to
the Basic Subscription Privilege and the number of Units, if any, being
subscribed for pursuant to the Oversubscription Privilege, and guaranteeing the
delivery to the Agent of any Subscription Certificate(s) evidencing such Rights
within three National Market System trading days following the date of the
Notice of Guaranteed Delivery; and
(3) the properly completed and duly executed
Subscription Certificate(s), including any required signature guarantees,
evidencing the Rights being exercised is received by the Agent within three
National Market System trading days following the date of the Notice of
Guaranteed Delivery relating thereto. The Notice of Guaranteed Delivery may be
delivered to the Agent in the same manner as Subscription Certificates at the
addresses set forth in the Prospectus, or may be transmitted to the Agent by
facsimile transmission (facsimile no. _____________).
(d) Unless a Subscription Certificate (1) provides that the
Units to be issued pursuant to the exercise of Rights represented thereby are to
be delivered to the record holder of such Rights or (2) is submitted for the
account of a member firm of a registered national securities exchange or a
member of the National Association of Securities Dealers, Inc., or a commercial
bank or trust company having an office or correspondent in the United States,
signatures on such Subscription
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Certificate must be guaranteed by an eligible guarantor institution ("Eligible
Institution") as defined in Rule 17Ad-15 of the Exchange Act, subject to the
standards and procedures adopted by the Agent.
(e) Banks, brokers and other nominee holders of Rights who
exercise the Basic Subscription Privilege and the Oversubscription Privilege on
behalf of beneficial owners of Rights shall be required to certify to the Agent
and the Company in connection with the exercise of the Oversubscription
Privilege, as to the aggregate number of Rights that have been exercised and the
number of Units that are being subscribed for pursuant to the Oversubscription
Privilege by each beneficial owner of Rights on whose behalf such nominee is
acting.
(f) The Rights shall expire at 5:00 p.m., New York time, on
the Expiration Date.
(g) The "Subscription Price" shall be $10.00 per Unit
subscribed for pursuant to the Basic Subscription Privilege and the
Oversubscription Privilege payable (in United States dollars) (i) by check or
bank draft drawn upon a U.S. bank or postal, telegraphic or express money order
payable to the Agent or (ii) by wire transfer of funds to the account maintained
by the Agent for such purpose at _________________________. The Subscription
Price shall be deemed to have been received by the Agent only upon (i) clearance
of any uncertified check, (ii) receipt by the Agent of any certified check or
bank check drawn upon a U.S. bank or of any postal, telegraphic or express money
order, or (iii) receipt of good funds in the Agent's account designated above,
in payment of the Subscription Price.
(h) A Rights holder may exercise Rights only in integral
multiples of three Rights. If either the number of Rights being exercised is not
specified on a Subscription Certificate, or the payment delivered is not
sufficient to pay the full aggregate Subscription Price for all Units stated to
be subscribed for, the Rights holder will be deemed to have exercised the
maximum number of Rights that is an integral multiple of three and that could be
exercised for the amount of the payment delivered by such Rights holder. If the
payment delivered by the Rights holder exceeds the aggregate Subscription Price
for the number of Rights evidenced by the Subscription Certificate(s) delivered
by such Rights holder, the payment will be applied, until depleted, to subscribe
for Units in the following order: (1) to subscribe for the number of Units, if
any, indicated on the Subscription Certificate(s) pursuant to the Basic
Subscription Privilege; (2) to subscribe for Units until the Basic Subscription
Privilege has been fully exercised with respect to all of the Rights represented
by the Subscription Certificate; and (3) to subscribe for additional Units
pursuant to the Oversubscription Privilege (subject to any applicable
proration), all in integral multiples of three Rights. Any excess payment
remaining after the foregoing allocation will be returned to the Rights holder
by mail as soon as practicable after the Expiration Date and after all
prorations have been effected, without interest or deduction.
(i) Funds received in payment of the Subscription Price for
Excess Units subscribed for pursuant to the Oversubscription Privilege will be
held in a segregated account pending issuance of such Excess Units. If a Rights
holder exercising the Oversubscription Privilege is allocated less than all of
the Excess Units that such holder wished to subscribe for pursuant to the
Oversubscription Privilege, the excess funds paid by such holder in respect of
the Subscription Price for Units not issued will be returned by mail as soon as
practicable after the Expiration Date and after all prorations have been
effected, without interest or deduction.
(j) Once a holder of Rights has exercised a Right, such
exercise may not be revoked.
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SECTION 8. PAYMENT FOR AND DELIVERY OF THE UNITS.
(a) On a daily basis, the Agent shall pay to the Company
and/or its designees as specified in writing, by wire transfer, certified or
bank check or other method acceptable to the Company and/or its designees, the
amount of all funds received (and not previously paid to the Company) by the
Agent in payment of the Subscription Price for Units subscribed for pursuant to
the Basic Subscription Privilege. As soon as practicable after any receipt of
such funds by the Company, the Company shall deliver, or arrange to have
delivered, the number of Units as are properly subscribed for pursuant to the
Basic Subscription Privilege.
(b) The closing of the sale of the Units upon exercise of the
Rights pursuant to the Oversubscription Privilege (the "Closing") will take
place at 10:00 a.m., New York time, on the third business day after the
Expiration Date (such date and time being referred to herein as the "Closing
Date"). At the Closing, the Agent shall pay to the Company and/or its designees
as specified in writing, by wire transfer, certified or bank check or other
method acceptable to the Company and/or its designees, the amount of all funds
received by the Agent in payment of the Subscription Price for Units subscribed
for pursuant to the Oversubscription Privilege less the aggregate proceeds to be
returned to the Rights holders pursuant to Sections 7(h) and (i). The Company
shall deliver, or arrange to have delivered, at the Closing the number of Units
as are properly subscribed for pursuant to the Oversubscription Privilege and as
soon as practicable after the Closing, the Agent shall deliver to each
exercising Rights holder certificate(s) representing the shares of Series B
Preferred Stock and the Warrants, purchased pursuant to the Oversubscription
Privilege.
SECTION 9. FRACTIONAL RIGHTS AND SHARES. The Company shall not issue
fractions of shares nor shall the Agent distribute Subscription Certificates
which evidence Rights other than in an integral multiple of three Rights. The
number of Rights issued to each holder will be rounded down to the nearest whole
number that is a multiple of three.
SECTION 10. TRANSFERABILITY OF RIGHTS. The Rights are transferrable in
multiples of three Rights under the procedures set forth in Section 3(a) above.
It is anticipated that the Rights will be quoted for trading on the NASDAQ
National Market System until the close of business on the last National Market
System trading day preceding the Expiration Date. Rights may be purchased or
sold through usual investment channels, including banks and brokers.
SECTION 11. FOREIGN AND CERTAIN OTHER STOCKHOLDERS. Rights may not be
exercised by any person, and neither the Prospectus nor any Subscription
Certificate shall constitute an offer to sell or a solicitation of an offer to
purchase any Units, in any jurisdiction in which such transactions would be
unlawful. The Agent shall reject any subscription pursuant to the exercise of
Rights by Rights holders outside the United States, if in the opinion of the
Company, the Company may not lawfully issue shares to such Rights holders. The
Agent shall not deliver Subscription Certificates, Prospectuses or any ancillary
documents to holders of Common Stock whose addresses are outside the United
States. The Agent shall hold such Subscription Certificates for the account of
such holders and upon notice from such holders shall exercise the Rights on
their behalf. To so exercise such Rights, such stockholders must notify the
Agent and deliver the Subscription Price to the Agent not later than the
Expiration Date. If no instructions and payment have been received by the Agent
prior to the Expiration Date, the Rights shall expire unexercised and be null
and void.
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SECTION 12. REPORTS. The Agent shall notify both the Company and its
designated representatives by telephone as requested during the period
commencing with the mailing of Subscription Certificates and ending on the
Expiration Date (and in the case of guaranteed deliveries pursuant to Section
7(c), the period ending three NASDAQ trading days after the Expiration Date),
which notice shall thereafter be confirmed in writing, of (i) the number of
Rights exercised on the day of such request, (ii) the number of Units subscribed
for pursuant to the Subscription Privilege and the number of such Rights for
which payment has been received, (iii) the number of Rights subject to
guaranteed delivery pursuant to Section 7(c) on such day, (iv) the number of
Rights for which defective exercises have been received on such day and (v)
cumulative totals derived from the information set forth in clauses (i) through
(iv) above. At or before 5:00 p.m., New York time, on the first NASDAQ trading
day following the Expiration Date, the Agent shall certify in writing to the
Company the cumulative totals through the Expiration Date derived from the
information set forth in clauses (i) through (iv) above. The Agent shall also
maintain and update a listing of holders who have fully or partially exercised
their Rights, and holders who have not exercised their Rights. The Agent shall
provide the Company or its designated representatives with the information
compiled pursuant to this Section 12 as any of them shall request.
SECTION 13. FUTURE INSTRUCTIONS AND INTERPRETATION.
(a) All questions as to the timeliness, validity, form and
eligibility of any exercise of Rights will be determined by the Company, whose
determinations shall be final and binding. The Company in its sole discretion
may waive any defect or irregularity, permit a defect or irregularity to be
corrected within such time as it may determine or reject the purported exercise
of any Right. Subscriptions will not be deemed to have been received or accepted
until all irregularities have been waived or cured within such time as the
Company determines in its sole discretion. Neither the Company nor the Agent
shall be under any duty to give notification of any defect or irregularity in
connection with the submission of Subscription Certificates or incur any
liability for failure to give such notification.
(b) The Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from an
authorized officer of the Company, and to apply to such officers for advice or
instructions in connection with its duties, and it shall not be liable for any
action taken or suffered to be taken by it in good faith in accordance with
instructions of any such officer.
SECTION 14. PAYMENT OF TAXES. The Company covenants and agrees that it
will pay when due and payable all documentary, stamp and other taxes, if any,
which may be payable in respect of the issuance or delivery of any Subscription
Certificate or of the Units; PROVIDED, HOWEVER, that the Company shall not be
liable for any tax liability arising out of any transaction which results in, or
is deemed to be, an exchange of Rights or securities or a constructive dividend
with respect to the Rights or securities and provided further that the Company
shall not be required to pay any tax or other governmental charge which may be
payable in respect of any delivery of any Subscription Certificate or the
issuance or delivery of Units in a name other than that of the registered holder
of such Subscription Certificate evidencing the Rights exercised, and the Agent
shall not issue any such certificate until such tax or governmental charge, if
required, shall have been paid.
SECTION 15. CANCELLATION AND DESTRUCTION OF SUBSCRIPTION CERTIFICATES.
All Subscription Certificates surrendered for the purpose of exercise or
substitution shall be canceled by the Agent, and no
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Subscription Certificates shall be issued in lieu thereof except as expressly
permitted by provisions of this Agreement. The Agent shall deliver all canceled
Subscription Certificates to the Company, or shall, at the written request of
the Company, destroy such canceled Subscription Certificates, and in such case
shall deliver a certificate of destruction thereof to the Company.
SECTION 16. RIGHT OF ACTION. All rights of action in respect of this
Agreement are vested in the Company and the respective registered holders of the
Subscription Certificates; and any registered holder of any Subscription
Certificate, without the consent of the Agent or of the holder of any other
Subscription Certificate, may, on his own behalf and for his own benefit,
enforce, and may institute and maintain any suit, action or proceeding against
the Company to enforce, or otherwise act in respect of, his right to exercise
the Rights evidenced by such Subscription Certificate in the manner provided in
such Subscription Certificate and in this Agreement.
SECTION 17. CONCERNING THE AGENT.
(a) The Company agrees to pay to the Agent compensation in the
amount of $_____________ for all services rendered by it hereunder and, from
time to time, on demand of the Agent, its reasonable out-of-pocket expenses and
disbursements for mailing, postage and delivery. The Company also agrees to
indemnify the Agent for, and to hold it harmless against, any loss, liability,
or expense incurred without negligence or bad faith on the part of the Agent for
anything done or omitted by the Agent in connection with the acceptance and
administration of this Agreement, including the costs and expenses of defending
against any claim of liability in the premises, provided that the Agent shall
have provided the Company with notice of any such claim promptly after such
claim became known to the Agent, and provided further that the Company shall
have the right to assume the defense of any such claim upon receipt of written
notice thereof from the Agent. If the Company assumes the defense of any such
claim, the Agent shall be entitled to participate in (but not control) the
defense of any such claim at its own expense. The Company shall not indemnify
the Agent with respect to any claim or action settled without its consent, which
consent shall not be unreasonably withheld.
(b) The Agent shall be protected and shall incur no liability
for or in respect of any action taken, suffered or omitted by it in connection
with its administration of this Agreement in reliance upon any Subscription
Certificate, instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice direction, consent, certificate,
statement or other paper or document reasonably believed by it to be genuine and
to be signed, executed and, where necessary, verified or acknowledged by the
proper person or persons.
SECTION 18. MERGER OR CONSOLIDATION OF AGENT. Any corporation into
which the Agent or any successor Agent may be merged or with which it may be
consolidated or any corporation resulting from any merger or consolidation to
which the Agent or any successor Agent shall be a party, or any corporation
succeeding to the corporate trust business of the Agent or any successor Agent,
shall be the successor to the Agent under this Agreement without the execution
or filing of any paper or any further act on the part of any of the parties
hereto.
SECTION 19. DUTIES OF AGENT. The Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and conditions,
by all of which the Company and the holders of Subscription Certificates by
their acceptance thereof shall be bound:
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(a) The Agent may consult with legal counsel (who may be, but
is not required to be, legal counsel for the Company), and the opinion of such
counsel shall be full and complete authorization and protection to the Agent as
to any actions taken or omitted by it in good faith and in accordance with such
opinion.
(b) Whenever in the performance of its duties under this
Agreement the Agent shall deem it necessary or desirable that any fact or matter
be proved or established by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively proved and
established by a certificate signed by the Chairman of the Board, the President
or a Vice President (including any Senior or Executive Vice President) and by
the Treasurer or any Assistant Treasurer or the Secretary or any Assistant
Secretary of the Company and delivered to the Agent; and such certificate shall
be full authorization to the Agent for any action taken or suffered in good
faith by it under the provisions of this Agreement in reliance upon such
certificate.
(c) The Agent shall be liable hereunder only for its own
negligence or willful misconduct.
(d) The Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this Agreement or in the
Subscription Certificates or be required to verify the same, but all such
statements and recitals are and shall be deemed to have been made by the Company
only.
(e) The Agent shall not be under any responsibility in respect
of the validity of this Agreement or the execution and delivery hereof (except
the due execution hereof by the Agent) or in respect of the validity or
execution of any Subscription Certificate; nor shall it be responsible for any
breach by the Company of any covenant or condition contained in this Agreement
or in any Subscription Certificate; nor shall it by any act hereunder be deemed
to make any representation or warranty as to the authorization or reservation of
any shares of Series B Preferred Stock or Warrants to be issued pursuant to this
Agreement or any Subscription Certificate or as to whether any shares of Series
B Preferred Stock or Warrants will, when issued, be validly authorized and
issued, fully paid and non-assessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed, acknowledged and
delivered all such further and other acts, instruments and assurances as may
reasonably be required by the Agent for the carrying out or performing by the
Agent of the provisions of this Agreement.
(g) Nothing herein shall preclude the Agent from acting in any
other capacity for the Company.
SECTION 20. NOTICES TO THE COMPANY, HOLDERS, AND AGENT. All notices and
other communications provided for or permitted hereunder shall be made by hand
delivery, prepaid first-class mail, or telecopier:
(a) if to the Company, to:
Atlantic Gulf Communities Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
- ▇ -
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Att: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
Arent Fox ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Att: Carter Strong, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Agent, to:
American Stock Transfer & Trust Company
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Att: Executive Vice-President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to a registered holder, at the address shown on the registry
books of the Company.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; two business
days after being deposited in the mail, postage prepaid, if mailed as aforesaid;
when answered back if telexed; and when receipt is acknowledged, if telecopied.
SECTION 21. SUPPLEMENTS AND AMENDMENTS. The Company and the Agent may
from time to time supplement or amend this Agreement without the approval of any
holders of Subscription Certificates in order to cure any ambiguity or to
correct or supplement any provision contained herein which may be defective or
inconsistent with any other provision herein, or to make any other provisions in
regard to matters or questions arising hereunder which the Company and the Agent
may deem necessary or desirable and which shall not materially adversely affect
the interests of the holders of the Subscription Certificates.
SECTION 22. SUCCESSORS. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Agent shall bind and inure
to the benefit of their respective successors and assigns hereunder.
SECTION 23. TERMINATION. This Agreement shall terminate at 5:00 p.m.,
New York time, on the seventh day following the Expiration Date. Upon
termination of this Agreement, and provided that Units are issued and delivered
by the Company for all Rights accepted for execution prior to such termination,
the Company shall be discharged from all obligations under this Agreement except
for its obligations to the Agent under Sections 14 and 17 hereof and except with
respect to the obligation of the Company to provide instruction and direction to
the Agent as may be provided in this Agreement.
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SECTION 24. GOVERNING LAW. This Agreement and each Subscription
Certificate shall be deemed to be a contract made under the laws of the State of
New York and for all purposes shall be construed in accordance with the internal
laws of said State.
SECTION 25. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall
be construed to give to any person or corporation other than the Company, the
Agent and the holders of the Subscription Certificates any legal or equitable
right, remedy or claim under this Agreement; but this Agreement shall be for the
sole and exclusive benefit of the Company, the Agent and the holders of the
Subscription Certificates.
SECTION 26. COUNTERPARTS. This Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, but all such counterparts shall together constitute one and
the same instrument.
SECTION 27. DESCRIPTIVE HEADINGS. Descriptive headings of the several
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF the undersigned have caused this Subscription and
Information Agency Agreement to be executed by their duly authorized
representative as of the date first above written.
ATLANTIC GULF COMMUNITIES CORPORATION
By:
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Name:
Title:
AMERICAN STOCK TRANSFER & TRUST COMPANY
By:
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Name:
Title:
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