Exhibit 99.3
FORM OF EXCHANGE AGENT AGREEMENT
EXCHANGE AGENT AGREEMENT
EXCHANGE OFFER
As of , 1998
U.S. Bank Trust National Association
Xxxx Building, Suite 740
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Numatics, Incorporated, a Michigan corporation (the "Issuer"), is offering (the
"Exchange Offer") to exchange $1,000 principal amount of its 9-5/8% Series B
Senior Subordinated Notes due 2008 (the "Exchange Notes") for each $1,000
principal amount of its 9-5/8% Senior Subordinated Notes due 2008 (the "Notes"),
upon the terms and conditions set forth in the Prospectus dated , 1998
(the "Prospectus") and the related Letter of Transmittal (the "Letter of
Transmittal") and Notice of Guaranteed Delivery (the "Notice of Guaranteed
Delivery"), copies of all of which are attached to this Agreement as Exhibit A.
The Exchange Offer is being made by the Issuer to any and all holders of the
Notes who were such on or about , 1998 or who become such prior to the
Expiration Date of the Exchange Offer. The Letter of Transmittal that will
accompany the Prospectus, which is addressed to you and is to be used by holders
of the Notes to accept the Exchange Offer, contains instructions with respect to
the delivery of certificates for, or book-entry delivery of, Notes tendered in
the Exchange Offer.
This will confirm our agreement with you to act as Exchange Agent in connection
with the Exchange Offer. In such capacity, you will act as agent for the holders
of the Notes to receive and exchange Exchange Notes for Notes tendered pursuant
to the Exchange Offer. In carrying out your duties as Exchange Agent, you are to
act in accordance with the following:
1. The Exchange Offer will expire at 5:00 p.m., New York City time, on ,
1998 (the "Initial Expiration Date") or at any subsequent time to which the
Issuer may extend the Exchange Offer. The Issuer expressly reserves the right
to extend the Exchange Offer from time to time by giving written notice to
you before 9:00 a.m., New York City time, on the next business day after the
previously scheduled Expiration Date. In this Agreement, "Expiration Date"
means the later of the Initial Expiration Date or the latest time and date to
which the Exchange Offer may be so extended.
2. Promptly following the commencement of the Exchange Offer, you will establish
a book entry account with The Depository Trust Corporation ("DTC") for
purposes of the Exchange Offer. Any financial institution that is a
participant in DTC may make book-entry delivery of Notes by causing DTC to
transfer such Notes into the account maintained by you pursuant to this
paragraph in accordance with procedures for such transfer.
3. You are to examine the Letters of Transmittal, the certificates for Notes and
the other documents delivered or mailed to you in connection with tenders of
Notes to ascertain whether they are filled out and executed in accordance
with the instructions set forth in the Letter of Transmittal. If any Letter
of Transmittal has been improperly completed or executed, or the certificates
for Notes accompanying such Letter of Transmittal are not in proper form for
transfer (as required by the instructions) or are not received, or no
Automated Tender Offer Program ("ATOP") message with respect to delivery of
book-entry Notes has been received, or if some other irregularity in
connection with the acceptance of the Exchange Offer exists, you will
endeavor to take such action as may be necessary to cause such irregularity
to be corrected.
4. If a holder desires to tender Notes pursuant to the Exchange Offer but such
holder's certificates for such Notes are not immediately available, or time
will not permit all required documents to reach you before the Expiration
Date, or the procedure for book-entry tender cannot be completed on a timely
basis, such Notes may nevertheless be tendered if all the following
conditions are satisfied:
(i) the tender is made by or through an Eligible Institution (as defined
in the Prospectus);
(ii) a properly completed and duly executed Notice of Guaranteed Delivery
is received by you as provided below before the Expiration Date; and
(iii) the certificates for all tendered Notes, in proper form for transfer
(or a confirmation of a book-entry transfer of such Notes into your
account at DTC), together with a properly completed and duly
executed Letter of Transmittal (or facsimile) and any other
documents required by the Letter of Transmittal, are received by you
within three New York Stock Exchange trading days after the
Expiration Date.
The Notice of Guaranteed Delivery may be delivered by hand or transmitted by
telegram, telex, facsimile transmission or mail to you and must include a
guarantee by an Eligible Institution in the form set forth in the Notice of
Guaranteed Delivery.
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If necessary or advisable, you may communicate with Eligible Institutions which
have tendered Notes by means of the procedures described above to ascertain
additional information in connection therewith.
Notwithstanding any other provision of this Agreement, exchange for Notes
tendered pursuant to the Exchange Offer will in all cases be made only after
timely receipt by you of certificates for such Notes (or a confirmation of a
book-entry transfer), a properly completed and duly executed Letter of
Transmittal (or a facsimile) and any other documents required by the Letter of
Transmittal.
5. Determination of all questions as to the validity, form, eligibility
(including timeliness of receipt) and acceptance of any Notes tendered or
delivered shall be determined by you on behalf of the Issuer in the first
instance, but final decisions on all matters shall be made by the Issuer. The
Issuer will reserve in the Prospectus the absolute right to reject any or all
tenders of Notes not properly tendered or any Notes the acceptance of which
would, in the opinion of the Issuer's counsel, be unlawful and to waive any
of the conditions of the Exchange Offer or any defect or irregularity in the
tender of any Notes, and the Issuer's interpretation of the terms and
conditions of the Exchange Offer will be final and binding.
6. Exchange Notes issuable in exchange for Notes duly tendered shall be
delivered as soon as practicable after notice of acceptance of the Notes by
the Issuer is received by you.
Notes tendered pursuant to the Exchange Offer may be withdrawn as set forth
in the section of the Prospectus entitled "The Exchange Offer -- Withdrawals
of Tenders." As promptly as possible after notification of such withdrawal,
you shall return the certificates for such Notes to, or in accordance with
the instruction of, such noteholder and such Notes shall no longer be
considered properly tendered. All questions as to the form and validity of
notices of withdrawal, including timeliness of receipt, shall be determined
by the Issuer, whose determination shall be final and binding.
7. On each business day up to and including the Expiration Date you shall advise
by telephone, not later than 5:00 p.m., New York City time, either of Xxxx X.
Xxxxxx or Xxxxxx X. Xxxxxxx, each an officer of the Issuer, at (248) 887-
4111, and such other persons as either of them may direct in writing, of the
principal amount of Notes which have been duly tendered on that day, stating
separately the principal amount of Notes tendered by book-entry delivery, the
principal amount of Notes tendered by Notice of Guaranteed Delivery, the
principal amount of Notes tendered about which you have questions concerning
validity and the cumulative principal amount of Notes tendered through the
time of such call. Promptly thereafter (by the next business day), if
requested, you shall
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confirm such advice to one of the above named persons in writing, to be
transmitted by telecopier, pouch or other special form of delivery. You
shall also inform one of the above named persons, and such other persons as
may be designated by either of them, upon request made from time to time,
of such other information as either of them may request, including, without
limitation, the names and addresses of registered holders of tendered
Notes.
8. Originals of Letters of Transmittal or facsimile transmissions submitted in
lieu of Letters of Transmittal pursuant to the Prospectus prior to the
Expiration Date shall be preserved by you in accordance with your standard
practices. If any Letters of Transmittal or facsimiles are received by you
on or after the Expiration Date, such documents shall be stamped by you to
show the date and time of receipt. You shall keep a record of all electronic
communications with respect to Notes tendered by ATOP.
9. You shall follow and act upon these instructions, and upon any further
instructions given to you in connection with the Exchange Offer, any of
which may be given to you by the Issuer or such other persons as it may
authorize.
10. If, pursuant to the provisions of Instruction 3 of the Letter of
Transmittal, fewer than all the Notes evidenced by any certificate submitted
to you are to be tendered, you shall, promptly after the Expiration Date,
return a new certificate for the remainder of such Notes not being tendered
to, or in accordance with the instructions of, each of such noteholders who
has made a partial tender of Notes.
11. The Issuer shall not be required to exchange any Notes tendered if there
shall occur any of the events set forth in the Section of the Prospectus
entitled "The Exchange Offer - Conditions" or if any of the other conditions
set forth in the Prospectus are not met. Notice of any decision by the
Issuer not to exchange any Notes tendered shall be given in writing by the
Issuer to you.
12. If, pursuant to the Exchange Offer, the Issuer does not accept for exchange
all or part of the Notes tendered, you shall promptly, after receipt of
instructions from the Issuer, return the deposited certificates for such
Notes or, as the case may be, issue an ATOP message with respect to Notes
tendered by book-entry delivery, with any related required documents that
are in your possession, to or in accordance with the instructions of the
persons who deposited the same, together with a notice in form satisfactory
to the Issuer explaining the reasons for their return.
13. Certificates for unexchanged Notes, or newly issued certificates for
Exchange Notes, shall be forwarded promptly by first-class mail under a
blanket surety bond protecting you and the Issuer from loss or liability
arising out of the non-receipt or non-delivery of such certificates.
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14. As Exchange Agent hereunder you:
(a) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness
of the Notes or any certificates for Notes deposited with you pursuant
to the Exchange Offer and will not be required to and will make no
representation as to the validity, value or genuineness of the Exchange
Offer;
(b) shall not initiate any legal action hereunder without written approval
of the Issuer and then only upon such reasonable indemnity as you may
request;
(c) may 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 believed by you to be genuine
and to have been signed by the proper party or parties;
(d) may rely on and shall be protected in acting upon written or oral
instructions from either of the persons set forth in Section 7 with
respect to any matter relating to your actions as Exchange Agent
specifically covered by this Agreement, or supplementing or qualifying
any such actions;
(e) may consult counsel satisfactory to you (including counsel for the
Issuer), and the written advice or opinion of such counsel shall be
full and complete authorization and protection in respect of any action
taken, suffered or omitted by you hereunder in good faith and in
accordance with the opinion of such counsel;
(f) shall not at any time solicit any person to tender Notes pursuant to
the Exchange Offer or otherwise advise any person tendering Notes
pursuant to the Exchange Offer as to the wisdom of making such tender
or as to the market value or decline or appreciation in market value of
either the Notes or the Exchange Notes; and
(g) shall have no duties or obligations other than those specifically set
forth herein or in an exhibit hereto.
15. It is understood and agreed that the securities to be deposited with or
received by you as Exchange Agent from the Issuer and tendering noteholders
constitute a special trust account, held solely for the benefit of the
Issuer and the noteholders tendering Notes, as their respective interests
may appear. Such securities need not be segregated from the securities,
money, assets or properties of you or any other person, firm or corporation
except to the extent required by law. You hereby waive any and all rights
of lien, attachment or setoff whatsoever, if any, against
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the securities so to be deposited, whether such rights arise by reason of
statutory or common law, by contract or otherwise.
16. For services rendered as Exchange Agent hereunder, you shall be entitled to
payment as specified in Schedule A attached hereto.
17. The Issuer covenants and agrees to indemnify you and to hold you harmless
against any costs, expenses (including reasonable fees of your legal
counsel), losses or damages which may be paid, incurred or suffered by you
or to which you may become subject, arising from or out of, directly or
indirectly, any claim or liability resulting from your actions as Exchange
Agent pursuant hereto; provided, that such covenant and agreement does not
extend to, and you shall not be indemnified and held harmless with respect
to, such costs, expenses, losses and damages incurred or suffered by you as
a result of, or arising out of, your negligence, bad faith or willful
failure to perform your obligations hereunder. Promptly after you have
received any written assertion of a claim or have been served with a summons
or other first legal process giving information as to the nature and basis
of the claim, you shall notify the Issuer, by letter or by cable or telex
confirmed by letter, of the written assertion of such claim against you or
of any action commenced against you or of the service of any summons on you,
or other first legal process giving information as to the nature and basis
of the claim. If you fail to supply the Issuer with the notification
required pursuant to the preceding sentence, the Issuer shall not be liable
to you under this Section 17 to the extent that your failure to so give
notification actually prejudiced the Issuer or otherwise increased its
obligations under this Section 17. The Issuer will be entitled to
participate at its own expense in the defense. If the Issuer so elects at
any time after receipt of such notice and agree in writing that such claim
is a claim for which you are entitled to be indemnified and held harmless
hereunder or if you in such notice request and the Issuer agrees, the Issuer
will assume the defense of any suit brought to enforce any such claim. In
the event the Issuer assumes the defense of any such suit, the Issuer may
select counsel of its own choosing for such purpose provided such counsel is
reasonably satisfactory to you, and the Issuer will not be liable for the
fees and expenses of any additional counsel thereafter retained by you,
except that if you have reasonably concluded that there may be legal
defenses available to you which are not available to the Issuer, you shall
have the right to select separate counsel and to assume such legal defense
and to otherwise participate in the defense of such action at the Issuer's
expense. The Issuer shall not be required to pay for any settlement made
without their consent.
18. This Agreement and your appointment as Exchange Agent shall be governed and
construed in accordance with the laws of the State of Michigan applicable to
agreements made and to be performed entirely within such state and shall
inure to
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the benefit of, and the obligations created hereby shall be binding
upon, the successors and assigns of the parties hereto.
19. This Agreement may be executed in separate counterparts, each of which when
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
20. This Agreement may not be amended except in a writing executed by the Issuer
and you.
If the foregoing is acceptable to you, please acknowledge receipt of this letter
and confirm the arrangements herein provided by signing and returning the
enclosed copy hereof.
Sincerely,
Numatics, Incorporated
By:_________________________________________
Xxxxxx X. Xxxxxxx
Vice President, Treasurer and Chief
Financial Officer
Accepted and agreed to as of the
date first above written:
U.S. Bank Trust National Association
By:_________________________________________
Xxxxx X. Xxxxx
Vice President
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Schedule A
Numatics, Incorporated
Schedule of Fees
to act as
Exchange Agent
As Exchange Agent $1,500
Exhibit A
See Following Documents
A-1
