EXHIBIT 4.3
SUBSCRIPTION AND INFORMATION
AGENT AGREEMENT
This Subscription and Information Agent
Agreement (the “Agreement”) is entered into as of this
29 day of September, 2010 by and between, Zoom Telephonics Inc.,
organized and existing under the laws of the Delaware (the
“Corporation”), and StockTrans, Inc., a Broadridge
Company, a corporation having its principal offices in Ardmore,
Pennsylvania (“StockTrans”).
WHEREAS, pursuant to a public rights offering
(the “Rights Offering”), the record and beneficial
holders of the Corporation’s common stock (the “Common
stock”), par value $0.0001 per share (the “Common
Stock”) will be given the right (the “Subscription
Rights”) to subscribe for an aggregate of approximately
7,923,912 shares of Common Stock, in each case as more fully set
forth in a prospectus and related offering documents (the
“Offering Documents”) to be prepared by the Corporation
and filed with the Securities and Exchange Commission for the
purpose of effecting the Rights Offering; and
WHEREAS, the Corporation has authorized and
directed the Agent to hold funds submitted by stockholders
who exercise Subscription Rights (the “Subscription
Funds”) in accordance with the terms
and provisions of this Agreement; and
WHEREAS, upon the terms and conditions set forth
in the applicable Offering Documents, the Agent will record
properly exercised Subscription Rights from holders of the Common
Stock on the Record Date (as defined in the applicable Offering
Documents), as well as record and deposit the Subscription Funds
for the purchase of the shares of Common Stock pursuant to the
Rights Offering; and
WHEREAS, the Corporation desires that StockTrans
act as both Subscription Agent and Information Agent under the
Rights Offering (the “Agent”), and StockTrans has
indicated its willingness to do so.
NOW, THEREFORE, in consideration of the mutual
covenants contained herein, the parties hereto agree as
follows:
1. Appointment of Subscription and
Information Agent. The Corporation hereby confirms the
appointment of StockTrans as Agent, and StockTrans hereby agrees to
serve as Agent, upon the terms and conditions set forth
herein.
2. Acceptance and Receipt of Subscription
Documents.
A. After receiving from the Corporation
acknowledgement of the commencement of the Rights Offering, the
Agent shall promptly mail to each holder of Common Stock as of the
Record Date (a) the appropriate Offering Documents as approved
by the Corporation (which shall specify that the exercise of
Subscription Rights shall be effected, and risk of loss of
Subscription Funds shall pass, only upon receipt by the Agent of
the properly completed Subscription Certificate (as
defined in the Offering Documents) and Subscription Funds required
to effect the exercise of Subscription Rights under the Rights
Offering) and (b) an envelope addressed to the Agent for use
by such holder in exercising his or her Subscription Rights
(the “Mailing”).
B. The Agent, upon receipt of Subscription
Funds and duly, completely and correctly executed Subscription
Certificates and other documents for the exercise of Subscription
Rights, shall make note of such subscriptions and Subscription
Funds with respect of the amount of shares subscribed for,
etc. Upon closing of the Rights Offering and
as promptly as feasible upon the Agent’s receipt of the
Company’s acceptance and approval of said Subscription
Certificates, the Corporation will (i) authorize the Agent to no
longer accept any subscription documents and to prepare the final
subscription list, representing the number of shares of Common
Stock for which said stockholder has subscribed, for the issuance
of stock certificates by the Corporation’s Transfer Agent,
(the “Certificates”) and (ii) release to the
Corporation the aggregate Subscription Funds minus any fees and
expense reimbursements (incurred or reserved for disbursements) due
to the Agent from the Corporation (sections (i) and (ii) directly
preceding constituting the “Closing”). No
interest on the Subscription Funds will accrue to either the
Corporation or the Corporation’s stockholders.
3. Notification and
Processing. The Agent is hereby authorized and directed
to, and hereby agrees to perform certain functions, including but
not limited to the following:
A. accept and respond to all telephone
requests for information relative to the exercise of Subscription
Rights (except that Agent will not answer questions relating to the
sufficiency of the consideration or the tax implications of the
Rights Offering); answer questions regarding the proper method of
exercising Subscription Rights, including the completion of
Subscription Certificates and other documents related to the Rights
Offering; maintain a toll-free number to respond to inquiries;
provide assistance to holders of Common Stock and monitor the
response to the Rights Offering; enclose and re-mail the
Subscriptions to interested holders of Common Stock; and provide
periodic reports as requested to the Corporation as to the status
of the Rights Offering.
B. date stamp each document relating to
its duties hereunder when received;
C. receive and examine all documents
submitted to it in connection with the exercise of rights under the
Rights Offering for proper execution in accordance with the terms
thereof. If Common Stock applicable to a subscription is held by
more than one record holder, the applicable Offering Documents must
be signed by each such holder; if a holder or joint holders
(registrants) hold more than one position in the Corporation, as
indicated by different accounts on the relevant record holder list,
then separate, properly completed and executed subscriptions must
be submitted for each such position held by that or those joint
holders (registrants).
D. retain or return to any holders (as
applicable) those Offering Documents evidencing some deficiency in
execution and make reasonable attempts to inform such holders of
the need to correct any such deficiency;
E. accept Subscription Certificates and
other documents signed by persons acting in a fiduciary or
representative capacity only if such capacity is properly shown on
the subscriptions and proper evidence of their authority so to act
has been submitted;
F. accept subscriptions for Common Stock
to be issued other than in the name that appears on the Corporation
record stockholder list submitted for such subscription,
where (i) the signature thereon is guaranteed by a
financial institution which is a participant in the Securities
Transfer Agents Medallion Program (“STAMP”), the New
York Stock Exchange, Inc. Medallion Signature Program
(“MSP”), or The Stock Exchanges Medallion Program
(“SEMP”), (ii) any necessary stock transfer taxes
are paid and proof of such payment is submitted or funds therefore
are provided to the Agent, or it is established by the holder that
no such taxes are due and payable and (iii) the “Special
Issuance Instructions” on the subscription certificate have
been properly completed;
G. retain all subscriptions accepted and
retain such documents pending further instructions from the
Corporation;
H. return at the Corporation’s
request any and all necessary records, information and material
concerning and representing unsubscribed Common Stock under the
Rights Offering;
I. maintain on a continuing basis a list
of holders of Common Stock that have not yet subscribed
pursuant to the Rights Offering;.
4. Concerning the Subscription and
Information Agent.
The Agent:
A. shall have no duties or obligations
other than those set forth herein;
B. may rely on, and shall be held harmless
by, the Corporation in acting upon any certificate, statement,
instrument, opinion, notice, letter, facsimile transmission,
telegram or other document, or any security delivered to it, and
reasonably believed by it to be genuine and to have been made or
signed by the proper party or parties.
C. may rely on and shall be held harmless
by the Corporation in acting upon written or oral instructions from
the Corporation with respect to any matter relating to its acting
as Agent, and
D. May consult on documents with counsel
satisfactory to it (including counsel for the Corporation) and
shall be held harmless by the Corporation in relying on the advice
or opinion of such counsel in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with
such advice or opinion of such counsel.
E. solely shall make the final
determination as to whether or not a Subscription Certificate
received by Agent is duly, completely and correctly executed in
order to qualify for the Rights Offering and Agent shall be held
harmless by the Corporation in respect of any action taken,
suffered or omitted by Agent hereunder in good faith and in
accordance with its determination.
This agreement does not contemplate any service
to be provided by Agent in the case where the conditions of the
Rights Offering have not been met in a timely manner. If
necessary, service to be provided by Agent under such circumstances
and remuneration to Agent therefore, will be established in a
mutual agreement between Agent and the Corporation, which will
become a part of this agreement.
No later than the business day after the
Mailing, the Corporation will provide Agent with a list of talking
points dealing with anticipated questions from holders of Common
Stock. It is understood and agreed that Agent will not
provide tax advice, will not interpret tax regulations, will not
opine regarding the merits of the Rights Offering, and will not
provide any comments related to any legal proce
