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Exhibit 10.1
EXCHANGE AGENT AGREEMENT
December __, 1998
American Stock Transfer & Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with the merger (the "Merger") of GMC Acquisition
Corporation, a New York corporation ("Acquisition") and wholly-owned subsidiary
of Xxxxxx Industries, Inc. ("Xxxxxx"), with and into General Microwave
Corporation, a New York corporation ("GMC"), pursuant to the Agreement and Plan
of Merger dated as of August 21, 1998, as amended (the "Agreement"), a copy of
which is annexed hereto, at the effective time of the Merger (the "Effective
Time"), each outstanding share of common stock of GMC will be converted into the
right to receive $18.00 in cash and a Warrant to purchase one share of Xxxxxx
common stock at a price of $14.40 per share, if exercised on or before January
11, 1999 and $15.60 per share if exercised after January 11, 1999 and each
outstanding option to purchase GMC common stock under GMC's stock option plans
(the "Options") will be converted into the right to receive for each share of
GMC common stock subject to the option, cash in an amount equal to $18.00 minus
the per share exercise price plus a Warrant. You will be notified of the
Effective Time by no later than the first business day following the Effective
Time.
GMC and Xxxxxx have delivered or will deliver to you (i) a copy of the
letter of transmittal ("Letter of Transmittal") to be sent to holders of record
of shares of GMC common stock ("GMC Shareholders"), (ii) copies of all other
documents or materials, if any, to be forwarded to GMC Shareholders, (iii) a
certified copy of resolutions adopted by the Board of Directors of each of GMC
and Xxxxxx authorizing the Merger, the appointment of an exchange agent and
execution of an exchange agent agreement, (iv) a list showing the names and
addresses of all GMC Shareholders as of the Effective Time and the number of
shares of GMC common stock held by each GMC Shareholder immediately prior to the
Effective Time, (v) a list of certificates (including certificate numbers)
representing shares of GMC common stock that have been or are, as such date,
lost, stolen, destroyed or replaced or restricted as to transfer (noting the
text of the restrictive legends applicable thereto) or with respect to which a
stop transfer order has been noted, (vi) a certification ("Certification") to be
sent to all holders of record of Options ("GMC Optionholders"), and (vii) a list
showing the names and addresses of all GMC Optionholders as of the Effective
Time indicating the number of shares of GMC common stock purchasable upon the
exercise of each Option immediately prior to the Effective Time, the per share
exercise price for each Option and the net amount payable to each such GMC
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Optionholder upon his or her delivery of a Certification (the "Option Amount")
(such lists being herein referred to as the "Lists").
As soon as practicable after the Effective Time, the Exchange Agent (as
defined below) will mail to each GMC Shareholder (a) a notice advising such
holder of the effectiveness of the Merger and the applicable terms of the
exchange effected thereby, (b) a Letter of Transmittal with instructions, (c) a
self-addressed return envelope, (d) tax certification guidelines, and (e) any
other material deemed appropriate by Xxxxxx, Acquisition and GMC.
As soon as practicable after the Effective Time, the Exchange Agent will
mail to each GMC Optionholder (a) a notice advising such holder of the
effectiveness of the Merger and the applicable terms of the exchange effected
thereby, (b) a Certification with instructions, (c) a self-addressed return
envelope, (d) tax certification guidelines, and (e) any other material deemed
appropriate by Xxxxxx, Acquisition and GMC.
This will confirm the appointment by Xxxxxx, Acquisition and GMC of
American Stock Transfer & Trust Company as the exchange agent ("Exchange Agent")
as provided in the Merger Agreement and, in that capacity, the authorization of
the Exchange Agent to act as agent for the GMC Shareholders and GMC
Optionholders for the purpose of receiving from Xxxxxx the Warrants and cash to
be issued in exchange for shares of GMC common stock and Options and
transmitting the same to the GMC Shareholders and GMC Optionholders upon
satisfaction of the conditions set forth herein. Your duties, liabilities and
rights as Exchange Agent are as set forth herein and will be governed, in
addition, by the applicable terms of the Merger Agreement.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following:
1. Examination of Letters of Transmittal. You are to examine
Letters of Transmittal, certificates representing shares of GMC common stock and
other documents delivered or mailed to you by or for GMC Shareholders to
ascertain, to the extent reasonably determined by you, whether:
(a) the Letters of Transmittal appear to be duly executed
and properly completed in accordance with the instructions set forth therein;
(b) the certificates for shares of GMC common stock appear
to be properly surrendered and, if applicable, endorsed for transfer;
(c) the other documents, if any, used in the exchange
appear to be duly executed and properly completed and in the proper form; and
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(d) the certificates for shares of GMC common stock are
free of restrictions on transfer or stop orders, except as set forth on the
Lists.
In the event you ascertain that any Letter of Transmittal or
other document has been improperly completed or executed, that any of the
certificates for shares of GMC common stock are not in proper form or some other
irregularity exists, you shall attempt to resolve promptly the irregularity and
may use your best efforts to contact the appropriate GMC Shareholder by whatever
means of communication you deem most expedient to correct the irregularity and,
upon consultation with Xxxxxx, shall endeavor to take such other reasonable
action as may be necessary to cause such irregularity to be corrected, and the
determination of any questions referred to Xxxxxx or its counsel by you as to
the validity, form and eligibility, as well as the proper completion or
execution of the Letters of Transmittal and other documents, shall be final and
binding, and you may rely thereon as provided in Section 12(a) hereof. Any costs
of contacting GMC Shareholders for the purposes of correcting irregularities
shall be incurred for the account of Acquisition.
2. Exchange of Shares and Options. (a) As soon as practicable after
the Effective Time and after surrender to you of the certificates for shares of
GMC common stock registered to a particular record holder or holders (and only
after surrender of all such certificates) and the return of a properly completed
and signed Letter of Transmittal relating thereto, you shall cause to be issued
and distributed to the holder(s) in whose name such certificates were registered
(or such other person as shall have been specified pursuant to the terms hereof)
(i) the whole number of Warrants issuable pursuant to the Merger Agreement,
registered in the name of such holder(s) and (ii) a check in the amount of
$18.00 per share of GMC common stock registered in the name of such holder(s)
(the "Cash Amount"). Prior to the Effective Time, Xxxxxx shall provide you the
amount of cash sufficient to make all payments of the Cash Amount.
(b) As soon as practicable after the Effective Time and after
delivery to you of a Certification in respect of the outstanding Options, you
shall cause to be issued and distributed to the Optionholder(s) specified by GMC
and Xxxxxx (or such other person as shall have been specified pursuant to the
terms hereof) (i) the whole number of Warrants issuable pursuant to the Merger
Agreement, registered in the name of such holder(s) and (ii) a check in the
amount of the applicable Option Amount. Prior to the Effective Time, Xxxxxx
shall provide you the amount of cash sufficient to make all payments of the
Option Amount.
(c) Until so surrendered, each certificate as to which a Letter of
Transmittal was received which immediately prior to the Effective Time
represented outstanding shares of GMC common stock shall, at and after the
Expiration Date, entitle the holder(s) thereof only to receive, upon surrender
of it and all other identically registered certificates, the certificates
representing Warrants and the Cash Amount contemplated by paragraph (a) above.
Until so surrendered, each option agreement as to which a Certificate was
received which immediately prior to the Effective Time represented the right to
purchase outstanding shares of GMC
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common stock shall, at and after the Expiration Date, entitle the holder(s)
thereof only to receive the certificates representing Warrants and the Option
Amount contemplated by paragraph (b) above.
(d) If any certificates representing Warrants are to be issued
in, or a Cash Amount or Option Amount is to be paid to, a name other than that
in which the certificate for shares of GMC common stock is registered or the GMC
Optionholder listed in the applicable List is listed, it shall be a condition of
the issuance or payment thereof that the certificate so surrendered shall be
properly endorsed and otherwise in proper form for transfer or the Certification
returned shall be properly completed and that the person requesting such
exchange shall pay to you any transfer or other taxes required, or shall
establish to your satisfaction that such tax has been paid or is not payable.
(e) Certificates to be delivered by mail shall be forwarded by
first class mail under the Exchange Agent's blanket surety bond, which Xxxxxx
and GMC understand protects Xxxxxx, GMC, Acquisition and the Exchange Agent from
loss or liability arising by virtue of the non- receipt or non-delivery of such
certificates. It is understood that the market value of the securities in any
one shipment sent by first class mail under this procedure will not be in excess
of $250,000. In the event the market value shall exceed $250,000, the envelope
shall be mailed by registered mail and shall be insured separately for the
replacement value of its contents at the time of mailing.
3. Lost Stolen or Destroyed Certificates. In the event that any GMC
Shareholder claims that any certificates representing shares of GMC common stock
is lost, stolen or destroyed, the Exchange Agent shall mail to such GMC
Shareholder an affidavit of loss and an indemnity bond. The Exchange Agent shall
make the distribution of certificates representing Warrants only upon receipt of
a properly completed affidavit of loss and indemnity bond.
4. Reports. The Exchange Agent shall furnish, until otherwise notified,
monthly, or more frequently if requested by Xxxxxx or GMC, reports to Xxxxxx
showing:
(a) the number of shares of GMC common stock surrendered and number of
full Warrants issued in exchange therefor (previous, herewith and total);
(b) cash paid as part of the Cash Amount (previous, herewith and total);
and
(c) cash paid as part of the Option Amount (previous, herewith and
total).
5. IRS Filings. 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 ("IRS") (e.g., 1099, 1099B, etc.). You may be required to deduct
31% from the Cash Amount or Option Amount payable to holders who have not
supplied their correct taxpayer identification number or required
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certification. Such funds will be turned over to the IRS by you.
6. Restricted Certificates of GMC Common Stock. As set forth above, GMC
will deliver to you the Lists which will set forth, among other things,
certificates representing shares of GMC common stock that have been or are, as
of the date of such Lists, restricted as to transfer (noting the text of the
restrictive legends applicable thereto). GMC understands that the Lists will
also set forth a legend or legends to be placed on certificates representing
Warrants to be issued in exchange for such certificates, if any, and you shall
place such legends on such certificates as directed in the Lists. In the event a
certificate bearing a restrictive legend that is not included in the Lists is
presented, you are instructed to delay issuance of a certificate representing
Warrants with respect thereto pending instructions from Xxxxxx and GMC.
7. Restricted Warrant Certificates. Each of the persons listed on
Schedule A hereto may be deemed an "affiliate" of GMC within the meaning of Rule
145 under the Securities Act of 1933, as amended, and applicable rules and
regulations promulgated by the Securities and Exchange Commission.
You are hereby authorized and instructed to place on the face of each of
the certificates representing Warrants issued to each of the aforesaid persons
in exchange for the shares of GMC common stock or Options held by them a legend
reading in its entirety as follows:
"THE WARRANTS REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A
TRANSACTION TO WHICH RULE 000 XXXXX XXX XXXXXX XXXXXX SECURITIES ACT OF
1933, AS AMENDED, APPLIES. THESE WARRANTS AND THE UNDERLYING SHARES MAY
NOT BE SOLD, ASSIGNED, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH WARRANTS AND THE
UNDERLYING SHARES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY
TO THE ISSUER OF THESE WARRANTS TO THE EFFECT THAT REGISTRATION IS NOT
REQUIRED UNDER SUCH ACT AND SUCH STATE SECURITIES LAWS."
8. Copies of Documents. You shall take such action at Acquisition's
expense as may from time to time be reasonably requested by Acquisition to
furnish copies of the Letter of Transmittal to persons designated by
Acquisition.
9. Receipt of Disposal. Letters of Transmittal and telegrams, telexes,
facsimile transmissions and other materials submitted to you by GMC Shareholders
or by Xxxxxx in respect of GMC Optionholders shall be preserved by you until
delivered or otherwise disposed of in accordance with the instructions of Xxxxxx
and GMC at or prior to the termination hereof.
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10. Maintenance of Records. You will keep and maintain complete and
accurate ledgers showing all shares exchanged by you and payments made by you.
You are authorized to cooperate with and furnish information to any organization
or its legal representatives designated from time to time by GMC Shareholders
and GMC Optionholders in any manner reasonably requested by any of them in
connection with the Merger and exchange pursuant thereto.
11. Delivery of Surrendered Shares of GMC Common Stock. All certificates
for shares of GMC Common Stock surrendered to you shall be retained by you and
following exchange thereof shall be forwarded to Acquisition and Xxxxxx or
elsewhere as directed by them.
12. Exchange Agent's Duties and Obligations. As Exchange Agent, you:
(a) will have no duties or obligations other than those
specifically set forth herein, or may subsequently be agreed to in writing by
you, Xxxxxx, Acquisition and GMC;
(b) will be regarded as making no representations or
warranties and having no responsibilities regarding the validity, sufficiency,
value or genuineness of any certificates for shares of GMC common stock
surrendered to you or the shares of GMC common stock represented thereby; will
not be required or requested to make any representations as to the validity or
genuineness of any certificates for Warrants or right to purchase shares of
Xxxxxx common stock represented thereby; and will not be responsible in any
manner whatsoever for the correctness of the statements made herein or in the
Merger Agreement or in any document furnished to you by Xxxxxx, Acquisition and
GMC;
(c) will not be obligated to institute or defend any action,
suit or legal proceeding in connection with the Merger, or your duties
hereunder, or take any other action which might in your judgment involve, or
result in, expense or liability to you, unless Xxxxxx, Acquisition or GMC shall
first furnish you an indemnity satisfactory to you;
(d) may rely on, and shall be protected in acting upon, any
certificate, instrument, opinion, representation, notice, letter, telegram or
other document delivered to you and believed by you to be genuine and to have
been signed by the proper party or parties;
(e) may rely on, and shall be protected in acting upon,
written or oral instructions given by any officer of, or any party authorized
by, Xxxxxx, Acquisition or GMC with respect to any matter relating to your
actions as Exchange Agent;
(f) may consult with counsel satisfactory to you (including
counsel for the Xxxxxx or GMC), and the written advice or opinion of such
counsel shall be full and complete authorization and protection in the respect
of any action taken, suffered or omitted by you hereunder in good faith and in
accordance with such advice or opinion of such counsel; and
(g) may retain an agent or agents of your choice to assist
you in performing
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your duties and obligations hereunder, at your cost and without relieving you of
any liability hereunder.
13. Termination of Exchange Agent's Duties and Obligations. This
agreement shall terminate upon demand by Xxxxxx, at which time all undistributed
certificates representing Warrants and amounts deposited in respect of the Cash
Amount and Option Amount shall be delivered by the Exchange Agent to Xxxxxx.
14. Indemnification of Exchange Agent. Xxxxxx, Acquisition and GMC
hereby jointly and severally covenant and agree to reimburse, indemnify and hold
you harmless from and against any and all claims, actions, judgments, damages,
losses, liabilities, costs, transfer or other taxes, and expenses (including,
without limitation, reasonable attorneys' fees and expenses) incurred or
suffered by you, or to which you may become subject and not resulting from any
negligence, bad faith or willful misconduct on your part, arising out of or
incident to this Agreement or the administration of your duties hereunder, or
arising out of or incident to your compliance with the instructions set forth
herein or with any instructions delivered to you pursuant hereto, or as a result
of defending yourself against any claim or liability resulting from your actions
as Exchange Agent, including any claim against you by any tendering GMC
Shareholder, which covenant and agreement shall survive the termination hereof.
You hereby represent that you will notify Xxxxxx, Acquisition and GMC by letter,
or facsimile confirmed by letter, of any receipt by you of a written assertion
of a claim against you, or any action commenced against you, within five (5)
business days after your receipt of written notice of such assertion or your
having been served with the summons or other first legal process giving
information as to the nature and basis of any such assertion. However, your
failure to so notify Xxxxxx, Acquisition and GMC shall not operate in any manner
whatsoever to relieve them from any liability which they may have on account of
this Section 14 if no prejudice occurs. At their election, Xxxxxx, Acquisition
and GMC may assume the conduct of your defense in any such action or claim at
their sole cost and expense. In the event that Xxxxxx, Acquisition and GMC elect
to assume the defense of any such action or claim and confirm to you in writing
that the indemnity provided for in this Section 14 applies to such action or
claim, they shall not be liable for the fees and expenses of any counsel
thereafter retained by you.
15. Compensation and Expenses. For services rendered as Exchange
Agent hereunder, your fees are approved as set forth in the schedule attached to
this agreement.
16. Modification. Except as otherwise provided in Section 12(a)
hereof, (i) the instructions contained herein may be modified or supplemented
only by authorized representatives of each of Xxxxxx, Acquisition and GMC, and
(ii) any inconsistency between this agreement and the Merger Agreement shall be
resolved in favor of the Merger Agreement.
17. Notices. Except as otherwise provided herein, no notice,
instruction or other communication by one party shall be binding upon the other
party unless hand delivered or sent by certified mail, return receipt requested,
nationally recognized overnight courier service or by facsimile transmission
electronically confirmed. Notice to you shall be sent or delivered to
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your above-noted address or such other addresses as you shall hereafter
designate in writing in accordance herewith. Notice to Xxxxxx, Acquisition and
GMC shall be sent or delivered to:
If to Xxxxxx or Acquisition:
00 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx Xxxx, President
If to GMC:
0000 Xxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxx, President
in each case with a copy to:
Blau, Kramer, Wactlar & Xxxxxxxxx, P.C.
000 Xxxxxxx Xxxxxxxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
18. Counterparts. This agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same agreement.
19. Governing Law; Binding Upon Successors and Assigns. This
agreement shall be construed and enforced in accordance with the laws of the
State of New York, without regard to the principles thereof respecting conflicts
of laws, and shall inure to the benefit of, and the
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obligations created hereby shall be binding upon, the successors and assigns of
the parties hereto.
Executed this __ th day of December , 1998.
XXXXXX INDUSTRIES, INC.
By: _________________________________
Name:
Title:
GMC ACQUISITION CORP.
By: _________________________________
Name:
Title:
GENERAL MICROWAVE CORPORATION
By: _________________________________
Name:
Title:
Agreed To and Accepted:
AMERICAN STOCK TRANSFER AND TRUST COMPANY
By: _______________________________________________
Name:
Title:
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Schedule A
Xxxxxxxxx Xxxxx
Xxxxxxx X. Xxxxxx
Xxx Wind
Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx Xxxxxxxxx
Xxxxxx XxXxxxxx
Xxxxxx Xxxxx
Fees
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