Exhibit 4.9


 





 


FORM OF SUBSCRIPTION AGENT
AGREEMENT


 


This SUBSCRIPTION
AGENT AGREEMENT (this “Agreement”) is entered into as of [●], 20[●], by and between American Stock Transfer
& Trust Company, LLC (the “Subscription Agent”) and Crossroads Systems, Inc. (the “Company”).


 


		1.	The Company is distributing to the holders
                                         of record of shares of its common stock, par value $0.001 per share (“Common Stock”),
                                         as of [●] p.m., New York City time, on [●], 20[●] (the “Record
                                         Date”), at no charge, non-transferable subscription rights (“Rights”)
                                         to purchase [●] share[s] of [type of security] (the “Rights Offering”).
                                         Except as set forth in Sections 8 and 9 below, Rights shall cease to be exercisable at
                                         [●] p.m., New York City time, on [________], 20[●] or such later date of
                                         which the Company notifies the Subscription Agent orally and confirms in writing (the
                                         “Expiration Date”). One Right is being issued for each share of Common Stock
                                         held on the Record Date. Each Right entitles the holder thereof to purchase [●]
                                         share[s] of [type of security] at a subscription price of $[●] per share
                                         (the “Subscription Price”), subject to certain limitations (the “Basic
                                         Subscription Right”). [If over-subscription privileges are included in the Rights
                                         Offering: Each Right holder that fully exercises his or her Basic Subscription Rights
                                         will be entitled to exercise an over-subscription privilege, subject to certain limitations
                                         and subject to allotment (the “Over-Subscription Privilege”), to purchase,
                                         at the Subscription Price, a portion of the shares, if any, not purchased by other stockholders
                                         pursuant to their Basic Subscription Rights (such shares, the “Over-Subscription
                                         Shares”).] Rights are evidenced by non-transferable subscription certificates in
                                         registered form (“Subscription Certificates”). The Rights Offering will be
                                         conducted in the manner and upon the terms set forth in the Company’s prospectus
                                         for the Rights Offering (the “Prospectus”).



 


		2.	The Subscription Agent is hereby appointed
                                         by the Company to effect the Rights Offering as set forth herein, and the Subscription
                                         Agent accepts such appointment. The Subscription Agent may rely on, and shall be protected
                                         in acting upon, any certificate, instrument, opinion, representation, notice letter or
                                         other document delivered to it and believed by it to be genuine and to have been signed
                                         by the proper party or parties.



 


		3.	Enclosed herewith are the following,
                                         the receipt of which the Subscription Agent acknowledges by its execution hereof:



 


		(a)	a copy of the Prospectus;



 


		(b)	the form of Subscription Certificate;



 


		(c)	resolutions adopted by the board
                                         of directors of the Company in connection with the Rights Offering, certified by the
                                         secretary of the Company;



 




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		(d)	the form of Instructions for Use
                                         of Rights Certificate;



 


		(e)	the form of Letter to Stockholders
                                         Who are Record Holders;



 


		(f)	the form of Letter to Nominee Holders
                                         Whose Clients are Beneficial Owners;



 


		(g)	the form of Letter to Clients of
                                         Nominee Holders;



 


		(h)	the form of Beneficial Owner Election
                                         Form;



 


		(i)	the form of Nominee Holder Election
                                         Form;



 


		(j)	the form of Notice of Guaranteed
                                         Delivery; and



 


		(k)	the form of Notice of Important Tax
                                         Information.



 


The forms described in items
(d) through (k) of this paragraph 3 are collectively referred to herein as the “Forms.”


 


		4.	As soon as is reasonably practical,
                                         the Subscription Agent shall mail or cause to be mailed, or deliver or cause to be delivered
                                         (which delivery may be done electronically through the facilities of the Depository Trust
                                         Company (“DTC”)), to each holder of Common Stock as of [●] p.m., New
                                         York City time, on the Record Date (each, a “Record Holder”) a Subscription
                                         Certificate evidencing the Rights to which such holder is entitled, the applicable Forms,
                                         a Prospectus and an envelope addressed to the Subscription Agent. Prior to mailing, the
                                         Company shall provide the Subscription Agent with the form of Subscription Certificate,
                                         which the Subscription Agent shall duplicate, prepare and issue in the names of the Record
                                         Holders and for the respective number of Rights to which each Record Holder is entitled.
                                         The Company shall provide the Subscription Agent with (a) a sufficient number of copies
                                         of the Prospectus to be mailed with the Subscription Certificates and (b) a digital copy
                                         of each Form, which the Subscription Agent shall duplicate in sufficient quantities to
                                         be mailed with the Subscription Certificates.



 


		5.	Subscription Procedure.



 


		(a)	Upon the Subscription Agent’s
                                         receipt prior to [●] p.m., New York City time, on the Expiration Date (by mail
                                         or delivery, including electronic delivery through the facilities of the DTC) of (i)
                                         any Subscription Certificate completed and endorsed for exercise, as provided on the
                                         reverse side of the Subscription Certificate (except as provided in Section 8 hereof),
                                         and (ii) payment in full of the Subscription Price in U.S. funds by check, bank draft
                                         or money order (without deduction for bank service charges or otherwise) to the order
                                         of “American Stock Transfer & Trust Company, LLC” or by wire transfer
                                         in accordance with the wire instruction set forth on Exhibit A hereto, the Subscription
                                         Agent shall as soon as practicable after the Expiration Date, but after performing the
                                         procedures described in subsections (b) through (d) below, (1) mail to the subscriber’s
                                         registered address on the books of the Company (or such other address as the subscriber
                                         may request in his or her properly completed Subscription Certificate) (x) certificates
                                         representing the shares of [type of security] duly subscribed for (pursuant to
                                         the subscriber’s Basic Subscription Rights [If over-subscription privileges
                                         are included in the Rights Offering: and Over-Subscription Privilege]) and (y) remittance
                                         of any amount overpaid by such subscriber, including amounts calculated in accordance
                                         with clause (e) below, and (2) furnish a list of all such information to the Company.



 




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		(b)	[If over-subscription privileges
                                         are included in the Rights Offering: As soon as practicable after the Expiration
                                         Date, the Subscription Agent shall calculate the number of Over-Subscription Shares available
                                         for purchase pursuant to the Over-Subscription Privilege. Only those Record Holders who
                                         purchase all of the shares of [type of security] available to them pursuant to
                                         their Basic Subscription Rights may exercise their Over-Subscription Privilege, provided
                                         that the number of Over-Subscription Shares for which a Record Holder may subscribe pursuant
                                         to the Over-Subscription Privilege may not exceed the number of shares of [type of
                                         security] available to such Record Holder pursuant to his or her Basic Subscription
                                         Rights. If a sufficient number of Over-Subscription Shares are available to satisfy all
                                         additional subscriptions by holders exercising their Over-Subscription Privilege (collectively
                                         the “Over-Subscribing Holders”), each Over-Subscribing Holders shall be allotted
                                         the number of Over-Subscription Shares subscribed for. If the aggregate number of shares
                                         subscribed for pursuant to the Over-Subscription Privilege exceeds the number of Over-Subscription
                                         Shares, the number of Over-Subscription Shares allotted to each Over-Subscribing Holder
                                         shall be the product obtained by multiplying the number of Over-Subscription Shares by
                                         a fraction, the numerator of which is the number of Basic Subscription Rights exercised
                                         by such Over-Subscribing Holder and the denominator of which is the total number of Basic
                                         Subscription Rights exercised by all Over-Subscribing Holders. If, following allotment,
                                         there are Over-Subscription Shares that remain unpurchased (the “Excess Shares”),
                                         the Company may, in its sole discretion, instruct the Subscription Agent to allocate
                                         such Excess Shares among those Over-Subscribing Holders (such Over-Subscribing Holders,
                                         the “Excess Holders”) who were allocated a number of Over-Subscription Shares
                                         that was less than the number of Over-Subscription Shares for which they subscribed (such
                                         unfulfilled subscriptions, the “Remaining Subscriptions”). If the Company
                                         elects to sell the Excess Shares and a sufficient number of Excess Shares are available
                                         to satisfy all Remaining Subscriptions in full, each Excess Holders shall be allotted
                                         the number of Excess Shares necessary to satisfy such holder’s Remaining Subscription.
                                         If the aggregate number of shares subscribed for pursuant to the Remaining Subscriptions
                                         exceeds the number of Excess Shares, the number of Excess Shares allotted to each Excess
                                         Holder shall be the product obtained by multiplying the number of Excess Shares by a
                                         fraction, the numerator of which is the total number of Over-Subscription Shares subscribed
                                         for by such Excess Holder and the denominator of which is the total number of Over-Subscription
                                         Shares subscribe for by all Excess Holders. Fractional shares or cash in lieu of fractional
                                         shares will not be issued in the Rights Offering. Instead, fractional shares resulting
                                         from the exercise of Basic Subscription Rights or the Over-Subscription Privilege will
                                         be eliminated by rounding down to the nearest whole share.]



 




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		(c)	The Company reserves the right, in
                                         its sole discretion, to limit the number of shares of [type of security] any person
                                         or entity, together with any related persons or entities, may purchase in the Rights
                                         Offering, where such purchase, when aggregated with their existing ownership, would result
                                         in such person or entity, together with any related persons or entities, owning 4.95%
                                         or more of the Company’s [type of security] following consummation of the
                                         Rights Offering.



 


		(d)	Upon calculating (i) the aggregate
                                         number of shares of [type of security] to be issued pursuant to the Basic Subscription
                                         Rights, (ii) [If over-subscription privileges are included in the Rights Offering:
                                         the number of shares of [type of security] to be received by each Over-Subscribing
                                         Holder pursuant to the Over-Subscription Privilege] and (iii) the amount overpaid, if
                                         any, by each Record Holder, the Subscription Agent shall, as soon as practicable, furnish
                                         a list of all such information to the Company.



 


		(e)	[If over-subscription privileges
                                         are included in the Rights Offering: If, pursuant to the procedures set forth in
                                         clause (b) above, a lesser number of shares of [type of security] is allotted
                                         to a subscriber under the Over-Subscription Privilege than the subscriber has tendered
                                         payment for, the Subscription Agent shall remit the difference to the subscriber, without
                                         interest, penalty or deduction, at the same time as certificates representing the shares
                                         of [type of security] issued pursuant to the Rights Offering are mailed to the
                                         subscribing holders.]



 


		(f)	Funds received by the Subscription
                                         Agent pursuant to the Rights Offering shall be held by the Subscription Agent in a segregated
                                         non-interest bearing account. Upon mailing certificates representing the shares of [type
                                         of security] issued in the Rights Offering and refunding Record Holders for any shares
                                         subscribed for but not allocated, if any, the Subscription Agent shall promptly remit
                                         to the Company all funds received in payment of the Subscription Price for the shares
                                         of [type of security] issued in the Rights Offering. The Subscription Agent will
                                         not be obligated to calculate or pay interest to any holder or party.



 


		(g)	In the event that the Rights Offering
                                         is not consummated because the Company has withdrawn, cancelled or terminated the Rights
                                         Offering, the Subscription Agent shall, upon receipt of notice from the Company of such
                                         withdrawal, cancellation or termination, liquidate the segregated account in which the
                                         monies were held as promptly as practicable and remit to each subscribing Record Holder
                                         the funds tendered by such holder upon exercise of his or her Rights.



 




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		6.	The Company shall have the absolute
                                         right to reject any defective exercise of Rights or to waive any defect in exercise.
                                         Unless requested to do so by the Company, the Subscription Agent shall not be under any
                                         duty to give notification to holders of Subscription Certificates of any defects or irregularities
                                         in subscriptions. If so requested by the Company, the Subscription Agent shall as soon
                                         as practicable return Subscription Certificates with defects or irregularities which
                                         have not been cured or waived to the holder of the Rights. Subscriptions will not be
                                         deemed to have been made until any such defects or irregularities have been cured or
                                         waived within such time as the Company shall determine. If any Subscription Certificate
                                         is alleged to have been lost, stolen or destroyed, the Subscription Agent should follow
                                         the same procedures followed for lost stock certificates representing Common Stock it
                                         uses in its capacity as transfer agent for the Company’s Common Stock.



 


		7.	If prior to [●] p.m., New York
                                         City time, on the Expiration Date the Subscription Agent receives (i) payment in full
                                         of the Subscription Price for all shares of [Type of Security] subscribed for
                                         pursuant to the Record Holder’s Basic Subscription Rights [If over-subscription
                                         privileges are included in the Rights Offering: and Over-Subscription Privilege,
                                         if applicable], and (ii) a guarantee notice substantially in the form of the form of
                                         Notice of Guaranteed Delivery (“Notice of Guaranteed Delivery”) delivered
                                         with the Subscription Certificate, from a financial institution having an office or correspondent
                                         in the United States, or a member firm of any registered United States national securities
                                         exchange or of FINRA stating the certificate number of the Subscription Certificate relating
                                         to the Rights, the name and address of the exercising subscriber, the number of Rights
                                         represented by the Subscription Certificate held by such exercising subscriber, the number
                                         of shares of [type of security] being subscribed for pursuant to the Rights and
                                         guaranteeing the delivery to the Subscription Agent of the Subscription Certificate evidencing
                                         such Rights within three (3) Business Days (as defined below) following the date of the
                                         Notice of Guaranteed Delivery, then the Rights may be exercised even though the Subscription
                                         Certificate was not delivered to the Subscription Agent prior to [●] p.m., New
                                         York City time, on the Expiration Date, provided that within three Business Days following
                                         the date of the Notice of Guaranteed Delivery the Subscription Agent receives the properly
                                         completed Subscription Certificate evidencing the Rights being exercised, with signatures
                                         guaranteed if required. As used in herein, “Business Day” shall mean any
                                         day other than a Saturday, a Sunday, or a day on which banking institutions in the State
                                         of New York are authorized or obligated by law or executive order to close.



 


		8.	The Subscription Agent shall deliver
                                         to the Company the exercised Subscription Certificates in accordance with written directions
                                         received from the Company and shall deliver to the subscribers who have duly exercised
                                         Rights at their registered addresses (or such other address as the subscriber may request
                                         in his or her properly completed Subscription Certificate) certificates representing
                                         the shares of [type of security] subscribed for as instructed on the reverse side
                                         of the Subscription Certificates.



 


		9.	The Subscription Agent shall notify
                                         the Company by email (a “daily notice”) before the close of business on each
                                         Business Day during the period commencing five (5) Business Days after the mailing of
                                         the Rights and ending at the Expiration Date (and in the case of guaranteed deliveries,
                                         ending three (3) Business Days after the Expiration Date), of:



 




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		(a)	the aggregate number of Rights properly
                                         exercised through and including the day covered by such daily notice (other than Rights
                                         that are subject to guaranteed delivery);



 


		(b)	the aggregate number of Rights exercised
                                         through and including the day covered by such daily notice that are subject to guaranteed
                                         delivery;



 


		(c)	the aggregate number of Rights for
                                         which defective exercises have been received through and including the day covered by
                                         such daily notice;



 


		(d)	the cumulative total of the information
                                         set forth in clauses (a) through (c) above;



 


		(e)	the aggregate amount of funds received
                                         through and including the day covered by such daily notice;



 


		(f)	the aggregate number of shares of
                                         [type of security] subscribed for pursuant to the Basic Subscription Rights through
                                         and including the day covered by such daily notice;



 


		(g)	[If over-subscription privileges
                                         are included in the Rights Offering: the aggregate number of shares of [type of
                                         security] subscribed for pursuant to the Over-Subscription Privilege through and
                                         including the day covered by such daily notice;] and



 


		(h)	the cumulative total of the information
                                         set forth in clauses (f) and (g) above.



 


At or before [●] p.m.,
New York City time, on the first Business Day following the Expiration Date, the Subscription Agent shall certify in writing to
the Company the cumulative total through the Expiration Date of all the information set forth in clauses (a) through (h) above.
At or before 10:00 a.m., New York City time, on the fifth Business Day following the Expiration Date, the Subscription Agent will
execute and deliver to the Company a certificate setting forth the number of Rights exercised pursuant to a Notice of Guaranteed
Delivery and as to which Subscription Certificates have been timely received. The Subscription Agent shall also maintain and update
a listing of Record Holders who have fully or partially exercised their Rights and Record Holders who have not exercised their
Rights. The Subscription Agent shall provide the Company or its designees with such information compiled by the Subscription Agent
pursuant to this Section 9 as any of them shall request.


 


		10.	The Subscription Agent shall arrange
                                         to comply with all requirements under the tax laws of the United States, including those
                                         relating to missing tax identification numbers, and shall file any appropriate reports
                                         with the Internal Revenue Service (“IRS”) (e.g., 1099, 1099B, etc.).



 


		11.	With respect to notices or instructions
                                         to be provided by the Company hereunder, the Subscription Agent may rely and act on any
                                         written instruction signed by any one or more of the following authorized officers or
                                         employees of the Company:



 




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	Name	 	Title
	 	 	 
	 	 	 
	 	 	 
	 	 	 


 


		12.	Whether or not the Rights Offering
                                         is consummated, the Company agrees to pay the Subscription Agent for services rendered
                                         hereunder, as set forth in the schedule attached as Exhibit B to this Agreement.



 


		13.	This Agreement shall terminate upon
                                         demand by the Company, at which time the Subscription Agent shall remit to each subscribing
                                         Record Holder all funds received from such holder in payment of the Subscription Price
                                         for the shares of [type of security] subscribed for by such holder, without interest
                                         or penalty.



 


		14.	The Subscription Agent may rely on
                                         the written advice or opinion of counsel, which shall be full and complete authorization
                                         and protection in respect of any action taken, suffered or omitted by the Subscription
                                         Agent hereunder in good faith and in accordance with such advice or opinion. Additionally,
                                         the Subscription Agent shall identify, report and deliver any unclaimed property and/or
                                         payments to all states and jurisdictions for the Company in accordance with applicable
                                         abandoned property law.



 


		15.	The Company hereby covenants and agrees
                                         to indemnify, reimburse and hold the Subscription Agent and its officers, directors,
                                         employees and agents harmless against any loss, liability or reasonable expense (including
                                         legal and other fees and expenses) incurred by the Subscription Agent arising out of
                                         or in connection with entering into this Agreement or the performance of its duties hereunder,
                                         except for such losses, liabilities or expenses incurred as a result of its gross negligence,
                                         bad faith or willful misconduct. The Company shall not be liable under this indemnity
                                         with respect to any claim against the Subscription Agent unless the Company is notified
                                         of the written assertion of a claim against it, or of any action commenced against it,
                                         promptly after it shall have received any such written information as to the nature and
                                         basis of the claim; provided, however, that failure by the Subscription Agent to provide
                                         such notice shall not relieve the Company of any liability hereunder if no prejudice
                                         occurs.



 


Without the prior written consent
of the Company (which consent shall not be unreasonably withheld), the Subscription Agent will not settle, compromise or consent
to the entry of any judgment in any pending or threatened claim or proceeding in respect of which indemnification could be sought
in accordance with the indemnification provisions of this Agreement (whether or not the Subscription Agent, the Company or any
directors, officers or affiliates of the Subscription Agent or the Company is an actual or potential party thereto). Under no
circumstances shall the Company be liable for the expense or loss of any settlement of any claim or proceeding effected by the
Subscription Agent without the prior written consent of the Company.


 




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In no event shall the Subscription
Agent have any liability for any incidental, special, statutory, indirect or consequential damages.


 


All provisions regarding indemnification,
liability and limits thereon shall survive the resignation or removal of the Subscription Agent or the termination of this Agreement.


 


		16.	Any notice or communication by the
                                         Subscription Agent or the Company to the other is duly given if in writing and delivered
                                         in person or via first class mail (postage prepaid), or overnight air courier to the
                                         other’s address.



 


If to the Company:


 


Crossroads Systems, Inc.


11000 North Mo-Pac Expressway


Austin, TX 78759


Attention: President and Chief Executive Officer


 


with a copy (which shall not constitute notice) to:


 


Andrews Kurth LLP


111 Congress Avenue, Suite 1700


Austin, TX 78701


Attention: J. Matthew Lyons


 


If to the Subscription Agent:


 


American Stock Transfer & Trust Company, LLC


6201 15th Avenue


Brooklyn, New York 11219


Attn: Corporate Actions


Tel:


 


with copy
to:


 


American
Stock Transfer & Trust Company, LLC


6201 15th Avenue


Brooklyn, New York 11219


Attn: General
Counsel


Tel:


 


The Subscription Agent and the
Company may, by notice to the other, designate additional or different addresses for subsequent notices or communications.


 




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		17.	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 between us to the full extent permitted by applicable law.



 


		18.	This Agreement shall be governed by
                                         and construed in accordance with the laws of the State of New York, without giving effect
                                         to principles of conflicts of law, and shall inure to the benefit of and be binding upon
                                         the successors and permitted assigns of the parties hereto.



 


		19.	EACH PARTY, TO THE EXTENT PERMITTED
                                         BY LAW, WAIVES ANY RIGHT IT MIGHT HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION
                                         ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY,
                                         WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.



 


		20.	Neither this Agreement, nor any rights
                                         or obligations hereunder, may be assigned by either party without the written consent
                                         of the other party. However, the Subscription Agent may assign this Agreement or any
                                         rights granted hereunder, in whole or in part, either to affiliates, another division,
                                         subsidiaries or in connection with its reorganization or to successors of all or a majority
                                         of the Subscription Agent’s assets or business without the prior written consent
                                         of the Company.



 


		21.	No provision of this Agreement may
                                         be amended, modified or waived, except in writing signed by all of the parties hereto.
                                         This Agreement may be executed in counterparts, each of which shall be for all purposes
                                         deemed an original, but all of which together shall constitute one and the same instrument.



 


		22.	Nothing herein contained shall amend,
                                         replace or supersede any agreement between the Company and the Subscription Agent to
                                         act as the Company’s transfer agent, which agreement shall remain of full force
                                         and effect.



 


[signature page follows]


 




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This Subscription
Agent Agreement has been executed by the parties hereto as of the date first written above.


 


	 	CROSSROADS SYSTEMS, INC.
	 	 	 
	 	By:	 
	 	 	Name:
	 	 	Title:


 


Agreed & Accepted:


 


AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC


 


	By:  	 	 
	 	Name:	 
	 	Title:	 


 




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EXHIBIT A


 


Wiring Instructions


 




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EXHIBIT B


 


Fee Schedule


 


[insert fees]


 


The party below is responsible for payment
of the fees:


 


Name:


Attention:


Address:


Address:


Address:


Facsimile:


Phone:


Email:


 


The fees quoted in this schedule apply
to services ordinarily rendered by American Stock Transfer & Trust Company, LLC (“AST”) as subscription agent
and are subject to reasonable adjustment based on final review of documents, or when AST is called upon to undertake unusual duties
or responsibilities, or as changes in law, procedures, or the cost of doing business demand. Furthermore, the fees quoted in this
schedule are based upon information provided to AST and are subject to change upon modification or supplementation of such information
resulting in the provision of additional services by AST. Services in addition to and not contemplated in this Agreement, including,
but not limited to, document amendments and revisions, calculations, notices and reports, legal fees and unanticipated transaction
costs (including charges for wire transfers, checks, internal transfers and securities transactions) will be billed as extraordinary
expenses.


 


AST Confidential and Proprietary Information – Version
August 2012