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Exhibit 99.3
EXCHANGE AGENCY AGREEMENT
as of November 7, 1997
Boston EquiServe, L.P.
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Ladies and Gentlemen:
High Voltage Engineering Corporation, a Delaware corporation (the
"Company"), intends to make an offer (the "EXCHANGE OFFER") to exchange its
12 1/2% Series A Exchange Senior Redeemable Preferred Stock, liquidation
preference $1,000 per share (the "SERIES A PREFERRED STOCK",) for its
outstanding 12 1/2% Series A Senior Redeemable Preferred Stock, liquidation
preference $1,000 per share (the "SERIES A EXCHANGE PREFERRED STOCK"). The terms
and conditions of the Exchange Offer as currently contemplated are set forth in
a prospectus, dated _________ __, 1997 (the "PROSPECTUS"), distributed to all
record holders of the Series A Preferred Stock. The Series A Preferred Stock and
the Series A Exchange Preferred Stock are collectively referred to herein as the
"PREFERRED STOCK."
The Company hereby appoints Boston EquiServe, L.P. ("BOSTON EQUISERVE")
to act as exchange agent (the "EXCHANGE AGENT") in connection with the Exchange
Offer. References hereinafter to "you" shall refer to Boston EquiServe.
The Exchange Offer is expected to be commenced by the Company on or
about the date of the Prospectus. The Letter of Transmittal accompanying the
Prospectus is to be used by the holders of the Series A Preferred Stock to
accept the Exchange Offer, and contains instructions with respect to the
delivery of certificates representing the shares of Series A Preferred Stock
tendered.
The Exchange Offer shall expire at 5:00 P.M., Boston time, on the 30th
day after the effective date of the Registration Statement of which the
Prospectus is a part or on such later date or time to which the Company may
extend the Exchange Offer (the "EXPIRATION DATE"). Subject to the terms and
conditions set forth in the Prospectus, the Company expressly reserves the
right to extend the Exchange Offer from time to time and may extend the
Exchange Offer by giving oral (confirmed in writing) or written notice to you
before 5:00 P.M., Boston
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time, on the previously scheduled Expiration Date.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus captioned "Exchange
Offer" or as specifically set forth herein, provided, however, that in no way
will your general duty to act in good faith be discharged by the foregoing.
2. You are to examine each of the Letters of Transmittal and
certificates representing shares of Series A Preferred Stock and any other
documents delivered or mailed to you by or for holders of the Series A Preferred
Stock to ascertain whether: (i) the Letters of Transmittal and any such other
documents are duly executed and properly completed in accordance with the
instructions set forth therein and (ii) the shares of Series A Preferred Stock
have otherwise been properly tendered. In each case where the Letter of
Transmittal or any other document has been improperly completed or executed or
any of the certificates representing shares of Series A Preferred Stock are not
in proper form for transfer or some other irregularity in connection with the
acceptance of the Exchange Offer exists, you will endeavor promptly to inform
the presenters of the need for fulfillment of all requirements and promptly to
take any other action as may be necessary or advisable to cause such
irregularity to be corrected, and you will promptly notify the Company thereof.
3. With the approval of any of the Treasurer, any Assistant
Treasurer, the Chief Executive Officer, the President, any Vice President and
the Clerk (each, a "DESIGNATED OFFICER") of the Company, or of counsel to the
Company (such approval, if given orally, to be confirmed in writing) or any
other party designated by such a Designated Officer, you are authorized to waive
any irregularities in connection with any tender of shares of Series A Preferred
Stock pursuant to the Exchange Offer.
4. Tenders of shares of Series A Preferred Stock may be made only as
set forth in the Letter of Transmittal and in the section of the Prospectus
captioned "Exchange Offer -- Procedures for Tendering Series A Preferred Stock,"
and shares of Series A Preferred Stock shall be considered properly tendered to
you only when tendered in accordance with the procedures set forth therein.
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Notwithstanding the provisions of this paragraph 4, shares of Series A
Preferred Stock that a Designated Officer of the Company shall approve as having
been properly tendered shall be considered to be properly tendered.
5. You shall advise the Company with respect to any shares of
Series A Preferred Stock received subsequent to the Expiration Date and accept
its instructions with respect to disposition of such shares of Series A
Preferred Stock.
6. You shall accept tenders:
(a) in cases where the shares of Series A Preferred Stock, are
registered in two or more names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter
of Transmittal) is acting in a fiduciary or a representative capacity
only when proper evidence of his or her authority so to act is
submitted; and
(c) from persons other than the registered holder of shares of
Series A Preferred Stock provided that customary transfer requirements,
including payment of any applicable transfer taxes, have been
satisfied.
You shall accept partial tenders of shares of Series A Preferred Stock
where so indicated and as permitted in the Letter of Transmittal and deliver
certificates representing shares of Series A Preferred Stock to the transfer
agent or split-up and return any untendered shares of Series A Preferred Stock
to the holder (or such person as may be designated in the Letter of Transmittal)
as promptly as practicable.
7. The Company will exchange shares of Series A Preferred Stock duly
tendered for shares of Series A Exchange Preferred Stock on the terms and
subject to the conditions set forth in the Prospectus and the Letter of
Transmittal. Delivery of shares of Series A Exchange Preferred Stock will be
made on behalf of the Company at the rate of one share of Series A Exchange
Preferred Stock for each share of Series A Preferred Stock tendered as soon as
practicable after notice (such notice if given orally, to be confirmed in
writing) of acceptance of said shares of Series A Preferred Stock by the
Company, provided, however, that in all cases, shares of Series A Preferred
Stock tendered pursuant to the Exchange Offer will be exchanged only after
timely receipt by you of certificates
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representing such shares of Series A Preferred Stock, a properly completed and
duly executed Letter of Transmittal with any required signature guarantees and
any other required documents. Unless otherwise instructed by the Company, you
shall issue only whole shares of Series A Exchange Preferred Stock.
8. Tenders pursuant to the Exchange Offer are irrevocable, except
that, subject to the terms and upon the conditions set forth in the Prospectus
and the Letter of Transmittal, shares of Series A Preferred Stock tendered
pursuant to the Exchange Offer may be withdrawn at any time prior to the
Expiration Date.
9. The Company shall not be required to exchange any shares of
Series A Preferred Stock tendered if any of the conditions set forth in the
Exchange Offer are not met. Notice of any decision by the Company not to
exchange any shares of Series A Preferred Stock tendered shall be given (and
confirmed in writing) by the Company to you.
10. If, pursuant to the Exchange Offer, the Company does not accept
for exchange all or party of the shares of Series A Preferred Stock tendered
because of an invalid tender, the occurrence of certain other events set forth
in the Prospectus under the caption "The Exchange Offer -- Certain Conditions to
the Exchange Offer" or otherwise, you shall as soon as practicable after the
expiration or termination of the Exchange Offer return those certificates
representing unaccepted shares of Series A Preferred Stock (or effect
appropriate book-entry transfer), together with any related required documents
and the Letters of Transmittal relating thereto that are in your possession, to
the persons who deposited them.
11. All certificates representing reissued shares of Series A
Preferred Stock, unaccepted shares of Series A Preferred Stock or shares of
Series A Exchange Preferred Stock shall be forwarded by (a) first-class
certified mail, return receipt requested under a blanket surety bond protecting
you and the Company from loss or liability arising out of the non-receipt or
non-delivery of such certificates or (b) by registered mail insured separately
for the replacement value of each of such certificates.
12. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
13. As Exchange Agent hereunder you:
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(a) shall have not duties or obligations other than those
specifically set forth herein or as may be subsequently agreed to in
writing by you and the Company.
(b) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness
of any of the certificates or the shares of Series A, Preferred Stock
represented thereby deposited with you pursuant to the Exchange Offer,
provided, however, that in no way will your general duty to act in good
faith be discharged by the foregoing:
(c) shall not be obligated to take any legal action hereunder
which might in your reasonable judgment involve any expense or
liability, unless you shall have been furnished with reasonable
indemnity;
(d) may reasonably rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice, letter,
telegram or other document or security delivered to you and reasonably
believed by you to be genuine and to have been signed by the proper
party or parties:
(e) may reasonably act upon any tender, statement, request,
comment, agreement or other instrument whatsoever not only as to its
due execution and validity and effectiveness of its provisions, but
also as to the truth and accuracy of any information contained therein,
which you shall in good faith believe to be genuine or to have been
signed or represented by a proper person or persons;
(f) may rely on and shall be protected in acting upon written or
oral instructions from any Designated Officer of the Company;
(g) may consult with your counsel with respect to any questions
relating to your duties and responsibilities and the written opinion of
such independent counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be
taken by you hereunder in good faith and in accordance with the written
opinion of such counsel; and
(h) shall not advise any person tendering shares of Series A
Preferred Stock pursuant to the Exchange Offer as to the wisdom
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of making such tender or as to the market value or decline or appreciation
in market value of any shares of Series A Preferred Stock.
14. You shall take such action as may from time to time be requested
by the Company (and such other action as you may reasonably deem appropriate) to
furnish copies of the Prospectus, Letter of Transmittal and the Notice of
Guaranteed Delivery of such other forms as may be approved from time to time by
the Company, to all persons requesting such documents and to accept and comply
with telephone requests for information relating to the Exchange Offer, provided
that such information shall relate only to the procedures for accepting (or
withdrawing from) the Exchange Offer. The Company will furnish you with copies
of such documents at your request.
15. You shall advise by cable, telex, facsimile transmission or
telephone, and promptly thereafter confirm in writing to the Company and such
other person or persons as it may request, daily (and more frequently during the
week immediately preceding the Expiration Date and if otherwise requested) up to
and including the Expiration Date, as to the number of shares of Series A
Preferred Stock that have been tendered pursuant to the Exchange Offer and the
items received by you pursuant to this Agreement, separately reporting and
giving cumulative totals as to items properly received and items improperly
received. In addition, you will also inform, and cooperate in making available
to, the Company or any such other person or persons upon oral request made form
time to time prior to the Expiration Date such other information as it, he or
she reasonably requests. Such cooperation shall include, without limitation, the
granting by you to the Company and such person as the Company may request of
access to those persons on your staff who are responsible for receiving tenders,
in order to ensure that immediately prior to the Expiration Date the Company
shall have received information in sufficient detail to enable it to decide
whether to extend the Exchange Offer. You shall prepare a final list of all
persons whose tenders were accepted, the aggregate number of shares of Series A
Preferred Stock tendered, the aggregate number of shares of Series A Preferred
Stock accepted and deliver said list to the Company.
16. Letters of Transmittal and Notices of Guaranteed Delivery shall be
stamped by you as to the date and the time of receipt thereof and shall be
preserved by you for a period of time at least equal to the period of time you
preserve other records pertaining to the transfer of securities. You shall
dispose of unused Letters of Transmittal and other surplus materials by
returning them to the Company.
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17. You hereby expressly waive any lien, encumbrance or right of
set-off whatsoever that you may have with respect to funds deposited with you
for the payment of transfer taxes by reasons of amounts, if any, borrowed by the
Company, or any of its subsidiaries or affiliates pursuant to any loan or credit
agreement with your or for compensation owed to you hereunder.
18. For services tendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on SCHEDULE I attached hereto.
19. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal and further acknowledge that you have examined each of them. Any
inconsistency between this Agreement, on the one hand, and the Prospectus and
the Letter of Transmittal (as they may be amended from time to time), on the
other hand, shall be resolved in favor of the latter two documents, except with
respect to the duties, liabilities and indemnification of you as Exchange Agent
which shall be controlled by this Agreement.
20. The Company covenants and agrees to indemnify and hold you in your
capacity as Exchange Agent hereunder harmless against any loss, liability, cost
or expense, including reasonable attorneys' fees arising out of or in connection
with any act, omission, delay or refusal made by you in reasonable reliance upon
any signature, endorsement, assignment, certificate, order, request, notice,
instruction or other instrument or document reasonably believed by you to be
valid, genuine and sufficient and in accepting any tender or effecting any
transfer of shares of Series A Preferred Stock reasonably believed by you in
good faith to be authorized, and in delaying or refusing in good faith to accept
any tenders or effect any transfer of shares of Series A Preferred Stock;
provided, however, that the Company shall not be liable for indemnification or
otherwise for any loss, liability, cost or expense to the extend arising out of
your gross negligence, willful misconduct or bad faith. In no case shall the
Company be liable under this indemnity with respect to any claim against you
unless the Company shall be notified by you, by letter or cable or be telex
confirmed by letter, of the written assertion of a claim against you or of any
other action commenced against you, promptly after you shall have received any
such written assertion or shall have been served with a summons in connection
therewith.
In addition, the Company shall not be liable for any loss, liability,
cost or expense resulting from a settlement entered into without its
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consent. The Company shall be entitled to participate at its own expense in the
defense of any such claim or other action, and, if the Company so elects, the
Company shall assume the defense of any suit brought to enforce any such claim.
In the event that the Company shall assume the defense of any such suit, the
Company shall not be liable for the fees and expenses of any additional counsel
thereafter retained by you, so long as the Company shall retain counsel
reasonably satisfactory to you to defend such suit.
21. You 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. The Company understands that you are required to deduct 31% on
payments to holders who have not supplied their correct Taxpayer Identification
Number or required certification. Such funds will be turned over to the Internal
Revenue Service.
22. You shall deliver or cause to be delivered, in a timely manner to
each governmental authority to which any transfer taxes are payable in respect
of the exchange of shares of Series A Preferred Stock, your check in the amount
of all transfer taxes so payable, and the Company shall reimburse you for the
amount of any and all transfer taxes payable in respect of the exchange of
shares of Series A Preferred Stock; provided, however, that you shall reimburse
the Company for amounts refunded to you in respect of your payment of any such
transfer taxes, at such time as such refund is received by you.
23. This Agreement and your appointment as Exchange Agent hereunder
shall be construed and enforced in accordance with the laws of the Commonwealth
of Massachusetts applicable to agreements made and to be performed entirely
within such state, and shall inure to the benefit of, and the obligations
created hereby shall be binding upon, the successors and assigns of each of the
parties hereto. This Agreement may not be modified orally.
24. This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
25. In case any provisions of this Agreement shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
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26. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in party, except by a
written instrument signed by a duly authorized representative of the party to be
charged.
27. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including telecopy or
similar writing) and shall be given to such party, addressed to it, at its
address or telecopy number set forth below:
If to the Company:
High Voltage Engineering Corporation
000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000-0000
Phone: 000-000-0000
Telecopier: 000-000-0000
Attention: Chief Financial Officer
If to the Exchange Agent:
Boston EquiServe, L.P.
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Phone: 000-000-0000
Telecopier: 000-000-0000
28. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Upon any termination of
this Agreement, you shall promptly deliver to the Company any certificates,
funds or property then held by you as Exchange Agent under this Agreement.
29. This Agreement shall be binding and effective as of the date
hereof.
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Please acknowledge receipt of this Agreement and confirm the
arrangement herein provided by signing and returning the enclosed copy.
HIGH VOLTAGE ENGINEERING CORPORATION
By: ________________________________________
Name:
Title:
Accepted as of the date first above written.
BOSTON EQUISERVE, L.P.
By: ________________________________________
Name:
Title:
Attested By:
Name:
Title:
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Schedule I
FEE SCHEDULE
Pursuant to Paragraph eighteen of the Exchange Agency Agreement, the
fee for the Agent is $_____ plus out-of-pocket expenses.
