Exhibit 99.3
_______, 2000
EXCHANGE AGENT AGREEMENT
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The Bank of New York
Corporate Trust Administration
000 Xxxxxxx Xxxxxx, 00X
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Raytheon Company (the "Company") proposes to make an offer (the "Exchange
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Offer") to exchange its (i) outstanding floating rate notes due 2002 (the
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"Floating Rate Notes"), for floating rate exchange notes (the "Exchange Floating
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Rate Notes"), (ii) outstanding 7.90% Notes Due 2002 (the "Notes Due 2002"), for
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7.90% Exchange Notes Due 0000 (xxx "Xxxxxxxx Xxxxx Xxx 0000"), (xxx) outstanding
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8.20% Notes Due 2006 (the "Notes Due 2006"), for 8.20% Exchange Notes Due 2006
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(the "Exchange Notes Due 2006"), and (iv) outstanding 8.30% Notes Due 2010 (the
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"Notes Due 2010" and, together with the Floating Rate Notes, the Notes Due 2002
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and the Notes Due 2006, the "Initial Notes"), for 8.30% Exchange Notes Due 2010
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(the "Exchange Notes Due 2010" and, together with the Exchange Floating Rate
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Notes, the Exchange Notes Due 2002 and the Exchange Notes Due 2006, the
"Exchange Notes"). The terms and conditions of the Exchange Offer as currently
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contemplated are set forth in a prospectus, dated ________, 2000 (the
"Prospectus"), and a letter of transmittal (the "Letter of Transmittal"), which
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are proposed to be distributed to all record holders of the Initial Notes. The
Initial Notes and the Exchange Notes are collectively referred to herein as the
"Notes."
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The Company hereby appoints The Bank of New York to act as exchange agent
(the "Exchange Agent") in connection with the Exchange Offer. References
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hereinafter to "you" shall refer to The Bank of New York.
The Exchange Offer is expected to be commenced by the Company on or about
_______, 2000. The Letter of Transmittal accompanying the Prospectus (or in the
case of book entry notes, the ATOP system) is to be used by the holders of the
Initial Notes to accept the Exchange Offer and contains instructions with
respect to the delivery of certificates for Initial Notes tendered in connection
therewith.
The Bank of New York
Corporate Trust Administration
_______, 2000
Page -2-
The Exchange Offer shall expire at 5:00 P.M., New York City time, on
_______, 2000 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
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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 9:00 A.M., New York
City time, on the business day following the previously scheduled Expiration
Date.
The Company expressly reserves the right to amend or terminate the Exchange
Offer, and not to accept for exchange any Initial Notes not theretofore accepted
for exchange, upon the occurrence of any of the conditions of the Exchange Offer
specified in the Prospectus under the caption "Exchange Offer -- Certain
Conditions to the Exchange Offer." The Company will give oral (confirmed in
writing) or written notice of any amendment, termination or nonacceptance to you
as promptly as practicable.
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
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general duty to act in good faith be discharged by the foregoing.
2. You will establish an account with respect to the Initial Notes at The
Depository Trust Company (the "Book-Entry Transfer Facility") for purposes of
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the Exchange Offer within two business days after the date of the Prospectus,
and any financial institution that is a participant in the Book-Entry Transfer
Facility's systems may make book-entry delivery of the Initial Notes by causing
the Book-Entry Transfer Facility to transfer such Initial Notes into your
account in accordance with the Book-Entry Transfer Facility's procedure for such
transfer.
3. You are to examine each of the Letters of Transmittal and certificates
for Initial Notes (or confirmation of book-entry transfer into your account at
the Book-Entry Transfer Facility) and any other documents delivered or mailed to
you by or for holders of the Initial Notes to ascertain whether: (i) the Letters
of Transmittal and any such other documents are duly executed and properly
completed in accordance with instructions set forth therein and (ii) the Initial
Notes have otherwise been properly tendered. In each case where the Letter of
Transmittal or any other
The Bank of New York
Corporate Trust Administration
_______, 2000
Page -3-
document has been improperly completed or executed or any of the certificates
for Initial Notes are not in proper form for transfer or some other irregularity
in connection with the acceptance of the Exchange Offer exists, you will
endeavor to inform the presenters of the need for fulfillment of all
requirements and to take any other action as may be necessary or advisable to
cause such irregularity to be corrected.
4. With the approval of the Chief Executive Officer, Chief Financial
Officer or Senior Vice President and Secretary of the Company (such approval, if
given orally, to be confirmed in writing) or any other party designated by such
an officer in writing, you are authorized to waive any irregularities in
connection with any tender of Initial Notes pursuant to the Exchange Offer.
5. Tenders of Initial Notes 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 Initial Notes", and Initial Notes shall be
considered properly tendered to you only when tendered in accordance with the
procedures set forth therein.
Notwithstanding the provisions of this paragraph 5, Initial Notes which the
Chief Executive Officer, Chief Financial Officer or Senior Vice President and
Secretary of the Company shall approve as having been properly tendered shall be
considered to be properly tendered (such approval, if given orally, shall be
confirmed in writing).
6. You shall advise the Company with respect to any Initial Notes
received subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Initial Notes.
7. You shall accept tenders:
(a) in cases where the Initial Notes 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
The Bank of New York
Corporate Trust Administration
_______, 2000
Page -4-
(c) from persons other than the registered holder of Initial Notes
provided that customary transfer requirements (including those imposed by the
Indenture), including any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Initial Notes where so indicated and as
permitted in the Letter of Transmittal and return any untendered Initial Notes
to the holder (or such other person as may be designated in the Letter of
Transmittal) as promptly as practicable after expiration or termination of the
Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Company will notify you (such notice if given orally, to be confirmed
in writing) of its acceptance, promptly after the Expiration Date, of all
Initial Notes properly tendered and you, on behalf of the Company, will exchange
such Initial Notes for Exchange Notes and cause such Initial Notes to be
cancelled. Delivery of Exchange Notes will be made on behalf of the Company by
you at the rate of $1,000 principal amount of Exchange Notes for each $1,000
principal amount of the corresponding series of Initial Notes tendered promptly
after notice (such notice if given orally, to be confirmed in writing) of
acceptance of said Initial Notes by the Company; provided, however, that in all
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cases, Initial Notes tendered pursuant to the Exchange Offer will be exchanged
only after timely receipt by you of certificates for such Initial Notes (or
confirmation of book-entry transfer into your account at the Book-Entry Transfer
Facility), a properly completed and duly executed Letter of Transmittal (or
facsimile thereof) with any required signature guarantees and any other required
documents. You shall issue Exchange Notes only in denominations of $1,000 or an
integral multiple thereof.
9. 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, Initial Notes tendered pursuant to the Exchange Offer may
be withdrawn at any time prior to 5:00 p.m., New York City time, on the business
day prior to the Expiration Date.
10. The Company shall not be required to exchange any Initial Notes
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 Initial Notes tendered
shall be given (and confirmed in writing) by the Company to you.
11. If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Initial Notes tendered because of an invalid tender,
the occurrence of certain other events set forth in the Prospectus under the
caption
The Bank of New York
Corporate Trust Administration
_______, 2000
Page -5-
"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 for unaccepted Initial Notes (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.
12. All certificates for reissued Initial Notes, unaccepted Initial Notes
or for Exchange Notes shall be forwarded by first-class mail.
13. 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.
14. As Exchange Agent hereunder you:
(a) shall have no 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 Initial Notes represented thereby 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;
(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 and customary 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 (whether in original or facsimile form) 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;
The Bank of New York
Corporate Trust Administration
_______, 2000
Page -6-
(f) may rely on and shall be protected in acting upon written
instructions from the Chief Executive Officer, Chief Financial Officer and
Senior Vice President and Secretary of the Company;
(g) may consult with counsel of your own selection with respect to
any questions relating to your duties and responsibilities and the advice or
opinion of such 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 advice or opinion of such counsel; and
(h) shall not advise any person tendering Initial 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 any Initial Notes.
15. You shall take such action as may from time to time be requested by
the Company or its counsel (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 (as defined in the Prospectus) or 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
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to the procedures for accepting (or withdrawing from) the Exchange Offer. The
Company will furnish you with copies of such documents at your request. All
other requests for information relating to the Exchange Offer shall be directed
to the Company, Attention: Secretary.
16. You shall advise by facsimile transmission or telephone, and promptly
thereafter confirm in writing to the Chief Financial Officer of the Company, its
counsel Xxxxxxx Xxxx LLP, 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 Initial Notes which 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, its counsel Xxxxxxx Xxxx LLP, or any such other
person or persons upon oral request made from time to time prior to the
Expiration Date of such other information as it or 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
re-
The Bank of New York
Corporate Trust Administration
_______, 2000
Page -7-
ceived 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 principal amount of Initial Notes tendered, the
aggregate principal amount of Initial Notes accepted and deliver said list to
the Company and Xxxxxxx Xxxx LLP.
17. 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.
18. 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 you or for compensation owed to you hereunder.
19. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on Schedule I attached hereto.
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20. 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.
21. The Company covenants and agrees to fully indemnify and hold you
harmless in your capacity as Exchange Agent hereunder against any and all loss,
liability, cost, claim, damage or expense, including attorneys' fees and
expenses, arising out of or in connection with this Agreement, performance by
you of the services contemplated by this Agreement and any act, omission, delay
or refusal made by you in 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 Initial Notes 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 Initial Notes; provided, however,
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that the Company shall not be liable for indemnification or otherwise for any
loss, liability, cost or expense to the extent arising out of your negligence,
bad faith or
The Bank of New York
Corporate Trust Administration
_______, 2000
Page -8-
willful misconduct. 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 by facsimile 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 notice of commencement of
action. 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
satisfactory to you to defend such suit, and so long as you have not determined,
in your reasonable judgment, that a conflict of interest exists between you and
the Company.
22. 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 in accordance with applicable regulations.
23. 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 Initial Notes, the Company's 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 Initial Notes;
provided, however, that you shall reimburse the Company for amounts refunded to
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you in respect of your payment of any such transfer taxes, at such time as such
refund is received by you.
24. This Agreement and your appointment as Exchange Agent hereunder shall
be construed and enforced in accordance with the laws of the State of New York
applicable to agreements made and to be performed entirely within such state,
and without regard to conflicts of law principles, 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.
25. This Agreement may be executed in two 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.
The Bank of New York
Corporate Trust Administration
_______, 2000
Page -9-
26. In case any provision 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.
27. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, cancelled or waived, in whole or in part, except by a
written instrument signed by a duly authorized representative of the party to be
charged. This Agreement may not be modified orally.
28. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
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:
Raytheon Company
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Facsimile:
Attention: Xxxxxx X. Xxxx, Esq.
Senior Vice President and General Counsel
with a copy to:
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. X'Xxxxx, Esq.
Xxxxxxx X. Xxxxxxxx, Esq.
If to the Exchange Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx, 00X
Xxx Xxxx xx Xxx Xxxx
Corporate Trust Administration
_______, 0000
Xxxx -00-
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Corporate Trust Administration
29. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the foregoing,
Paragraphs 19, 21 and 23 shall survive the termination of this Agreement. Upon
any termination of this Agreement, you shall promptly deliver to the Company any
certificates for Notes, funds or property then held by you as Exchange Agent
under this Agreement.
30. This Agreement shall be binding and effective as of the date hereof.
Please acknowledge receipt of this Agreement and confirm the arrangements
herein provided by signing and returning the enclosed copy.
RAYTHEON COMPANY
By:_________________________________
Name:
Title:
Accepted as of the date
first above written:
THE BANK OF NEW YORK, as Exchange Agent
By:_____________________
Name:
Title:
SCHEDULE I
FEES
$[____] Acceptance Fee
$[____] per each extension of Exchange Offer
