EXHIBIT 99.4
EXCHANGE AGENT AGREEMENT
_________________, 1998
Marine Midland Bank
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Ladies and Gentlemen:
Tekni-Plex, Inc., a Delaware corporation (the "Company"), is
offering to issue, upon the terms and subject to the conditions set forth in
the Prospectus dated ____________ (the "Prospectus") and the related Letter of
Transmittal (which together constitute the "Offer"), $1,000 principal amount
of the Company's Series B 9(1)/(4)% Senior Subordinated Notes due 2008 (the
"Exchange Notes"), in exchange for each outstanding $1,000 principal amount of
its 9(1)/(4)% Senior Subordinated Notes due 2008 (the "Old Notes" and together
with the Exchange Notes, the "Notes"). Exchange Notes will be issued only in
minimum denominations of $1,000 and integral multiples thereof to each
tendering holder of Old Notes whose Old Notes are accepted in the Offer.
You are hereby appointed and authorized to act as agent (the
"Exchange Agent") to effectuate the exchange of Old Notes for Exchange Notes,
on the terms and subject to the conditions of this agreement (the
"Agreement"). In that regard, the following documents have been delivered to
you:
(i) the Prospectus;
(ii) the Letter of Transmittal to be used by the registered holders of
the Old Notes, including instructions;
(iii) the Notice of Guaranteed Delivery to be used by any registered
holder of the Old Notes when the Old Notes are not immediately
available or when the holder cannot deliver the Old Notes and
other required documents to the Exchange Agent or cannot complete
the procedure for book-entry transfer prior to the Expiration
Date;
(iv) the Instructions to Registered Holder and/or Book-Entry Transfer
Facility Participant from Beneficial owner to be used by any
beneficial owner of the Old Notes;
(v) the cover letter from the Company to brokers, dealers, commercial
banks, trust companies and other nominees generally describing
the Offer; and
(vi) the form of cover letter from brokers, dealers, commercial banks,
trust companies and other nominees to their respective clients
generally describing the Offer.
The Offer shall expire at the time and on the date specified in the Prospectus
(the "Initial Expiration Date") or at any subsequent time and date to which the
Company, in its sole discretion, may extend the Offer. The later of the Initial
Expiration Date and the latest time and date to which the Offer is so extended
is referred to herein as "Expiration Date."
You are hereby requested, and you hereby agree, to act as
follows:
1. You are to accept, subject to any withdrawal rights, Old
Notes that are accompanied by a Letter of Transmittal (or facsimile thereof),
properly completed and duly executed in accordance with the instructions
thereon and any requisite related collateral documents and all other
instruments and communications submitted to you in connection with the Offer
and to hold the same upon the terms and conditions set forth in this
Agreement. You shall advise the Company with respect to any Old Notes received
subsequent to the Expiration Date and accept the instructions of the Company
with respect to disposition of such Old Notes.
2. You are to examine the Letters of Transmittal, the Old
Notes, and the other documents delivered or mailed to you by or for the
holders of the Old Notes as soon as practicable after receipt to ascertain
whether (i) the Letters of Transmittal are properly completed and duly
executed in accordance with the instructions set forth therein, (ii) the Old
Notes have otherwise been properly tendered and (iii), if applicable, the
other documents are properly completed and duly executed. You need not pass on
the legal sufficiency of any signature or verify any signature guarantee.
3. In the event any Letter of Transmittal or other document has
been improperly executed or completed or any of the Old Notes are not in
proper form or have been improperly tendered, or if some other irregularity in
connection with the delivery of Old Notes by a registered holder thereof
exists, you shall promptly report such information to the Company and you are
authorized, upon consultation with the Company and its counsel, to endeavor to
take such action as may be necessary to cause such irregularity to be
corrected. You are authorized, upon consultation with the Company or one of
its representatives, to request from any person tendering Old Notes such
additional documents or undertakings as you may deem appropriate. All
questions as to the form of all documents and the validity, form, eligibility
(including time of receipt), acceptance and withdrawal of tendered Old Notes
will be determined by the Company, in its reasonable discretion, whose
determinations will be final and binding. The Company reserves the absolute
right to reject any or all tenders that are not in proper form or to refuse
the acceptance of any particular Old Notes that would, in the opinion of the
Company's counsel, be unlawful. The Company also reserves the absolute right
to waive any of the conditions of the Offer or any defect or irregularity in
the tender of any Old Notes, and the Company's interpretation of the terms and
conditions of the Offer (including the Letter of Transmittal and the
instructions set forth therein) will be final and binding; provided, however,
that any direction by the Company to accept a nonconforming Old Note, Letter
of Transmittal or other document, or to reject an Old Note, Letter of
Transmittal or other document believed by you to be conforming, shall be set
forth in writing by an Officer of the Company.
4. In carrying out your duties as Exchange Agent, you have
established an account with respect to the Old Notes at each of The Depository
Trust Company ("DTC"), the Midwest Securities Trust Company and the
Philadelphia Depository Trust Company (collectively referred to as the
"Book-Entry Facilities") for purposes of the Offer, and any financial
institution that is a participant in the Book-Entry Facilities system may make
book-entry delivery of the Old Notes into your account in accordance with each
such Book-Entry Facility's procedure for such transfer. You have confirmed
with DTC that any financial institution that is a participant in DTC's system
(a "Participant") may utilize DTC's Automated Tender Offer Program ("ATOP")
to tender the Old Notes for exchange in the Offer. You will request that DTC
establish an account with respect to the Old Notes for purposes of the Offer
within two business days after the date on which the Offer commences. Any
Participant may make book-entry delivery of Old Notes by causing DTC to
transfer such Old Notes into such account in accordance with DTC's ATOP
transfer procedures. However, the acceptance for exchange of the Old Notes so
tendered will only be made after timely confirmation (a "Book-Entry
Confirmation") of such book-entry transfer of Old Notes into such account, and
timely receipt by you of an Agent's Message (as such term is defined in the
next sentence) and any other documents required by the Letter of Transmittal
or the Prospectus. The term "Agent's Message" means a message, transmitted by
DTC and received by you and forming part of a Book-Entry Confirmation, which
states that DTC has received an express acknowledgment from a Participant
tendering for exchange Old Notes which are the subject of such Book-Entry
Confirmation that such Participant has received and agrees to be bound by the
terms of the Letter of Transmittal, and that the Company may enforce such
agreement against such Participant. No tender of Old Notes will be deemed to
have been properly made until all defects and irregularities have been cured
or waived.
5. Tender of Old Notes shall be made only as set forth in the
Prospectus and the Letter of Transmittal, and Old Notes shall be considered
properly tendered to you only when:
(a) a properly completed and duly executed Letter of
Transmittal (or facsimile thereof), with any required signature
guarantee and any other required documents, are received by you
at your address set forth in the Prospectus or in the Letter of
Transmittal and Old Notes are received by you at such address or
pursuant to book-entry delivery at your account at DTC; or a
properly completed and duly executed Notice of Guaranteed
Delivery substantially in the form provided by the Company, with
an appropriate guarantee of signature and delivery from an
Eligible Guarantor Institution within the meaning of Rule
17Ad-15 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), is received by you at or prior to the
Expiration Date. For purposes of this Agreement, an "Eligible
Guarantor Institution" within the meaning of Rule 17Ad-15 under
the Exchange Act shall mean a bank, broker, dealer, credit
union, savings association, clearing agency or other institution
that is a member of a recognized signature guarantee medallion
program (i.e. Securities Transfer Agents Medallion Program,
Stock Exchange Medallion Program or New York Stock Exchange
Medallion Signature Program). The Notice of Guaranteed Delivery
may be delivered to you by hand or transmitted by telegram,
facsimile transmission or letter;
(b) Old Notes (in respect of which there has been
delivered to you prior to the Expiration Date a properly
completed and duly executed Notice of Guaranteed Delivery) in
proper form for transfer together with a properly completed and
duly executed Letter of Transmittal (or facsimile thereof), and
any other required documents, are received by you within three
(3) trading days of The New York Stock Exchange, Inc. after the
Expiration Date; and
(c) the adequacy of the items relating to Old Notes, and
the Letters of Transmittal therefor and any Notice of Guaranteed
Delivery has been favorably passed upon as above provided.
Notwithstanding the provisions of the preceding paragraph, Old
Notes that the Company shall approve as having been properly tendered shall be
considered to be properly tendered.
6. (a) A tendering holder of Old Notes may withdraw tendered
Old Notes in accordance with the procedures set forth in the Prospectus at any
time on or prior to 5:00 p.m. New York City time on the Expiration Date, in
which event, except as may be otherwise specified in the holder's notice of
withdrawal, all items in your possession that shall have been received from
such holder with respect to those Old Notes shall be returned to or upon the
order of the holder as soon as practicable and the Old Notes covered by those
items shall no longer be considered to be properly tendered.
(b) A withdrawal of tender of Old Notes may not be rescinded
and any Old Notes withdrawn will thereafter be deemed not validly tendered for
purposes of the Offer, provided, however, that withdrawn Old Notes may be
retendered by again following one of the procedures therefor described in the
Prospectus at any time on or prior to the Expiration Date.
(c) All questions as to the validity (including time of
receipt) of notices of withdrawal will be determined by the Company, whose
determination will be final and binding.
7. You are to record and to hold all tenders received by you
and to promptly notify by telephone (with confirmation by facsimile
transmission) Dr. F. Xxxxxxx Xxxxx of the Company (telephone 000-000-0000 and
facsimile 000-000-0000 on a weekly basis or more frequently if so requested by
the Company, as to the total number of Old Notes tendered during such week (or
other period) and the cumulative numbers with respect to the Old Notes
received and not withdrawn through the time of such notice. Each such report
should be divided into the Old Notes represented by (i) book-entry delivery
and/or certificates and (ii) Notices of Guaranteed Delivery actually received
by you through the time of the report. The foregoing information should also
be sent to the Company in a weekly written report. Each report should also
indicate the number of Old Notes tendered in good form and the number of Old
Notes tendered with a defect or irregularity (as well as the name of the
beneficial owner of each such Old Note, if such information has been provided
to you and a brief description of the nature of each such defect or
irregularity). In addition, you will also provide, and cooperate in making
available to the Company, such other information as it may reasonably request
and access to those persons on your staff who are responsible for receiving
tenders of Old Notes in order to insure 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 Offer.
8. Each Letter of Transmittal, Old Note, Notice of Guaranteed
Delivery and any other document received by you in connection with the Offer
shall be noted by you as to the date and time of receipt and, if defective,
the date and time the last defect was waived by the Company or was cured. Each
Letter of Transmittal and Old Note that is accepted by the Company shall be
retained in your Possession until the Expiration Date. As promptly as
practicable thereafter, you will deliver by registered mail with proper
insurance those items, together with all properly tendered and canceled Old
Notes, to the Company, Attention Dr. F. Xxxxxxx Xxxxx.
9. You are to satisfy requests of brokers, dealers, commercial
banks, trust companies and other persons for copies of the documents and other
materials specified in items (i) through (vi) of the introduction to this
Agreement and such other forms as may be approved in writing from time to time
by the Company. You are not authorized to offer any concessions or to pay any
commissions to any brokers, banks or other persons or to engage or to utilize
any persons to solicit tenders.
10. You are to follow up and act upon any amendments,
modifications or supplements to these instructions and upon any further
information in connection with the terms of the Offer, any of which may be
given to you by the Company, including instructions with respect to any
extension of or the modification of the Offer and the cancellation of the
Offer.
11. Unless otherwise instructed by the Company no exchange
shall be made as to any Old Notes held in certificated form until you
physically receive a certificate or certificates representing those Old Notes,
a properly completed and duly executed Letter of Transmittal (or facsimile
thereof) and any other required documents. Promptly after the Expiration Date,
the Company will notify you (such notice if given orally, to be confirmed in
writing) of the tendered Old Notes which it has accepted and you, on behalf of
the Company, will exchange such Old Notes for Exchange Notes and cause such
Old Notes to be canceled all in accordance with this Agreement, the Prospectus
and the Letter of Transmittal.
12. For performing your services hereunder, you shall be
entitled to receive from the Company a fee in accordance with the Schedule of
Fees attached hereto. You shall also be reimbursed by the Company for all
reasonable expenses, including, but not limited to, reasonable counsel fees
and expenses, if any, you may incur in connection with the performance of your
duties hereunder. This paragraph will survive any termination of this
Agreement.
13. As Exchange Agent hereunder, you:
(a) shall not have duties or obligations other that those
specifically set forth herein or as may subsequently be agreed
to by you and the Company in writing;
(b) shall not be obligated to take any legal action
hereunder that might in your reasonable judgment involve any
expense or liability unless you have been furnished with
indemnification from the Company reasonably satisfactory to you;
(c) may rely on and shall be protected and fully
indemnified pursuant to paragraph 16 in acting in reliance upon
any instruction, direction, officers' certificate, instrument,
opinion, notice, letter, facsimile transmission, telex, telegram
or other document delivered to you and reasonably believed by
you to be genuine and to have been signed by the proper party or
parties;
(d) will be regarded as making no representations and
having no responsibilities in respect to the validity,
sufficiency, value or genuineness of any Prospectus, Letter of
Transmittal, Notice of Guaranteed Delivery or any other
disclosure materials delivered in connection therewith, or
certificates deposited with you hereunder, and will not make any
representation as to the validity, value or genuineness of the
Offer;
(e) may rely on and shall be protected and fully
indemnified pursuant to Paragraph 16 in acting upon the terms
and conditions of (i) this Agreement, and (ii) the documents
relating to the Offer, and (iii) any instructions given to you
in writing by the Company by Dr. F. Xxxxxxx Xxxxx or Xx. Xxxxxxx
X. X. Xxxxx of the Company, with respect to any matters relating
to your activities as Exchange Agent covered by this Agreement,
and
(f) may consult with counsel satisfactory to you
(including counsel to the Company), and the opinion of such
counsel shall be full and complete authorization and protection
with respect to any action taken, suffered, or omitted by you in
reliance upon such opinion, provided that you shall promptly
notify the Company of any actions taken or omitted by you in
reliance upon such opinion.
14. You undertake the duties and obligations imposed herein
upon the following additional terms and conditions:
(a) you shall perform your duties and obligations
hereunder with due care; and
(b) you are not authorized to and shall not make any
recommendation on behalf of the Company as to whether a holder
of Old Notes of the Company should or should not participate in
the Offer.
15. All Exchange Notes shall be forwarded by you to the persons
at the addresses so indicated in the Letter of Transmittal by (i) first-class
mail under, a blanket surety bond protecting you and the Company from loss or
liability arising out of the nonreceipt or nondelivery of such certificate, or
(ii) registered mail, insured separately for the replacement value of such
certificates.
16. The Company shall indemnify and hold you (which for
purposes of this paragraph shall include your directors, officers, agents and
employees) harmless from and against any and all costs, damages, actions,
losses, liabilities, expenses and claims (including, but not limited to, the
reasonable fees and expenses of counsel) ("Losses") incurred by you as a
result of, in connection with or arising out of the performance by you of your
duties under this Agreement or the compliance by you with the instructions set
forth herein or delivered hereunder, other than those Losses resulting from
your bad faith, negligence, or willful misconduct. You shall notify the
Company of the written assertion of a claim against you or of any action
commenced against you, promptly after you shall have received any such written
assertion of a claim or shall have been served with the summons or other first
legal process, giving information as to the nature and basis of the claim;
provided, however, that your failure to so notify shall not affect the
Company's obligations hereunder so long as such failure to notify the Company
does not adversely affect any defense that would have been available to the
Company. The Company shall be entitled to participate in the defense of any
such claim or legal action and if the Company so elects at any time after
receipt of such notice, the Company may assume the defense of any suit brought
to enforce any such claim. Notwithstanding anything to the contrary set forth
herein, you shall be entitled to retain a single counsel of your choice in any
such suit and the Company shall pay the reasonable fees, expenses and
disbursements of such counsel if (i) the Company has failed within a
reasonable time to retain counsel reasonably satisfactory to you or (ii) the
representation of you and the Company by the same counsel would be
inappropriate due to actual or potential differing interests. The Company will
not be liable for any settlement of any proceedings effected without its
written consent (which consent shall not be unreasonably withheld). This
paragraph shall survive any termination of this Agreement.
17. You hereby acknowledge receipt of each of the documents
listed in items (i) through (vi) of the introduction of this Agreement and
further acknowledge that you have examined the same. Any inconsistency between
this Agreement on the one hand and the Prospectus and Letter of Transmittal,
as they may from time to time be amended, on the other, shall be resolved in
favor of the latter, except with respect to the duties, liabilities and
indemnification of you as Exchange Agent, which shall be governed exclusively
by this Agreement.
18. In the event that any of the terms of the Offer are
amended, the Company shall give you prompt written notice thereof describing
such amendment. The parties shall amend this Agreement to the extent necessary
to reflect any material changes to the terms hereof caused by any amendment of
the Offer.
19. You shall preserve, and shall provide the Company access
to, all records pertaining to the Offer and shall permit it to make
reproductions of the same, at its expense during normal business hours, for a
period of five (5) years following the Expiration Date.
20. This Agreement is effective as of the date hereof and is
binding upon and inures to the benefit of the parties' respective successors.
This Agreement shall be governed by and construed in accordance with the laws
of the State of New York.
21. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original, but all of which together
shall constitute one and the same document.
22. All notices and communications hereunder shall be in
writing and shall be deemed to be duly given if delivered or mailed first
class certified or registered mail, postage prepaid, or telecopied as follows:
If to the Company: Tekni-Plex, Inc.
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Attn: Dr. F. Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
and a copy to: Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
if to you: Marine Midland Bank
Corporate Trust Administration
000 Xxxxxxxx--00xx xxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
23. These instructions may be reasonably modified or
supplemented by the Company or by any officer thereof authorized to give
notice, approval or waiver on its behalf.
If the foregoing is acceptable to you, please countersign below
to acknowledge receipt of this letter and to confirm your agreement to the
arrangements herein provided.
Very truly yours,
TEKNI-PLEX
By:_______________________________
Name:
Title:
Accepted
MARINE MIDLAND BANK, as
Exchange Agent
By:_____________________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President