EXHIBIT 99.3
EXCHANGE AGENT AGREEMENT
__________, 2003
Xxxxx Fargo Bank Minnesota, National Association
Attn: Corporate Trust Services
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Ladies and Gentlemen:
DigitalNet, Inc., a Delaware corporation (the "Company"), proposes to make
an offer (the "Exchange Offer") to exchange up to $125,000,000 principal amount
of its 9.00% Senior Subordinated Notes due 2010 (CUSIP No. 25389F AB 0) (the
"New Notes") that have been registered under the Securities Act of 1933, as
amended (the "Securities Act") for a like principal amount of its outstanding
9.00% Senior Subordinated Notes due 2010 (CUSIP Nos. 25389F AA 2 and U25386 AA
8) (the "Old Notes"). The terms and conditions of the Exchange Offer as
currently contemplated are set forth in a prospectus, dated _________, 2003 (the
"Prospectus"), included in the Company's Registration Statement on Form S-4, as
amended (the "Registration Statement"), filed with the Securities and Exchange
Commission. The Old Notes and the New Notes are collectively referred to herein
as the "Securities."
The Company hereby appoints Xxxxx Fargo Bank Minnesota, National
Association as the exchange agent (the "Exchange Agent") in connection with the
Exchange Offer. References hereinafter to "you" refer to Xxxxx Fargo Bank
Minnesota, National Association, in its capacity as Exchange Agent.
The Exchange Offer is expected to be commenced by the Company on or about
____, 2003. The Letter of Transmittal, the Notice of Guaranteed Delivery, the
Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees
and the Letter to Clients (collectively, the "Tender Documents") accompanying
the Prospectus (or in the case of book-entry securities, the Automated Tender
Offer Program ("ATOP") of the Book-Entry Transfer Facility (as defined below))
is to be used by the holders of the Old Notes to accept the Exchange Offer and
contains instructions with respect to the delivery of certificates for Old Notes
tendered in connection therewith.
The Exchange Offers will expire at 5:00 p.m., New York City time, on
____________, 2003 or on such subsequent 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 or written notice to you and by notifying in writing or by public
announcement the registered holders of the Old Notes, 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 Old Notes not therefore accepted for
exchange, upon the occurrence of any of the conditions of the Exchange Offer
specified in the Prospectus under the caption "The exchange offer-Certain
conditions to the exchange offer." The Company will give 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:
1. You shall perform such duties and only such duties as are specifically
set forth in the section of the Prospectus entitled "The 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 shall establish book-entry accounts in accordance with SEC
regulations with respect to each of the Old Notes at The Depository Trust
Company (the "Book Entry Transfer Facility") for purposes of 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, until the Expiration Date, make book-entry delivery of the Old Notes by
causing the Book Transfer Facility to transfer such Old Notes into the
appropriate account in accordance with the Book Entry Transfer Facility's
procedure for such transfer.
3. You shall examine each of the Letters of Transmittal and certificates
for the Old Notes (or confirmation of book-entry transfer into the accounts at
the Book-Entry Transfer Facility) and any other documents delivered or mailed to
you by or for holders of the Old Notes to ascertain whether: (1) the Letters of
Transmittal and any such other documents are duly executed and properly
completed in accordance with the instructions set forth therein; and (2) the Old
Notes 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 for Old Notes are not in proper form for transfer or
some other irregularity in connection with the acceptance of the applicable
Exchange Offer exists, you shall make commercially reasonable efforts to inform
the presenters of the need for fulfillment of all requirements and to take any
other action as may be commercially reasonable to cause such irregularity to be
corrected.
4. With the written approval of the President or Chief Financial Officer
(the "Executive Officers") of the Company, or any other party designated in
writing by such an officer, you may waive any irregularities in connection with
any tender of Old Notes pursuant to the Exchange Offer.
5. Tenders of Old Notes may be made only as set forth in the Letter of
Transmittal and in the section of the Prospectus captioned "The exchange offer
-- Procedures for tendering," and Old Notes shall be considered properly
tendered to you only when tendered in accordance with the procedures set forth
therein. Notwithstanding the provisions of this Section 5, Old Notes which the
President or Chief Financial Officer of the Company shall approve in writing as
having been properly tendered shall be considered to be properly tendered.
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6. You shall advise the Company with respect to any Old Notes received
subsequent to the Expiration Date and accept its instructions with respect to
disposition of such Old Notes.
7. You shall accept tenders:
a. in cases where the Old Notes are registered in two or more names
only if signed by all named holders;
b. in cases where the signing person (as indicated in the Letter of
Transmittal) is acting in a fiduciary or a representative capacity only if
proper evidence of his or her authority so to act is submitted; and
c. from persons other than the registered holder of Old Notes, only
if customary transfer requirements, including payment of any applicable
transfer taxes, are fulfilled.
8. You shall accept partial tenders of Old Notes where so indicated and
as permitted in the Letter of Transmittal and deliver certificates for Old Notes
to the registrar for separation and return any untendered Old 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.
9. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Company shall notify you in writing of its acceptance, promptly after
the Expiration Date, of all Old Notes properly tendered and you, on behalf of
the Company, shall exchange such Old Notes for New Notes, and cause such Old
Notes to be cancelled. Delivery of New Notes shall be made on behalf of the
Company by you at the rate of $1,000 principal amount of New Notes for each
$1,000 principal amount of Old Notes tendered promptly after receiving written
notice of acceptance of said Old Notes by the Company; PROVIDED, HOWEVER, that
in all cases, Old Notes tendered pursuant to the Exchange Offer will be
exchanged only after timely receipt by you of certificates for such Old Notes
(or confirmation of book entry transfer into the accounts at the Book Entry
Transfer Facility), and a properly completed and duly executed Letter of
Transmittal (or manually signed facsimile thereof) with any required signature
guarantees and any other required documents or an agent's message (as such term
is defined in the Prospectus) in the case of book-entry transfer. You shall
issue New Notes only in denominations of $1,000 or any integral multiple
thereof.
10. 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, Old Notes tendered pursuant to the Exchange Offer may be
withdrawn at any time prior to the Expiration Date.
11. The Company is not required to exchange any Old Notes tendered if any
of the conditions set forth in the Exchange Offer are not met. Written notice of
any decision by the Company not to exchange any Old Notes tendered shall be
given by the Company to you.
12. If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Old Notes tendered because of an invalid tender, the
occurrence of certain other
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events set forth in the Prospectus under the caption "The exchange offer-Certain
conditions of 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 Old 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 person who
deposited them.
13. You shall forward all certificates for reissued Old Notes, unaccepted
Old Notes or for New Notes by first-class mail.
14. 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.
15. As Exchange Agent hereunder you:
a. are not liable for any action or omission to act in connection
with this Exchange Agent Agreement unless the same constitutes your gross
negligence, willful misconduct or bad faith;
b. have no duties or obligations other than those specifically set
forth herein or incorporated herein from the Prospectus or as may be
subsequently agreed to in writing between you and the Company;
c. are regarded as making no representations as to the validity,
sufficiency, value or genuineness of any of the certificates or the Old
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;
d. are not obligated to take any legal action hereunder which might
in your reasonable judgment involve any expense or liability unless you
have been furnished with a commercially reasonable indemnity;
e. may conclusively rely on and are protected in acting in reliance
upon any certificate, instrument, opinion, notice, letter, telegram or
other document or securities delivered to you and reasonably believed by
you to be genuine and to have been signed or presented by the proper person
or persons;
f. may act upon any tender, statement, request, document, agreement,
certificate 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 in good faith
believe to be genuine and to have been signed or presented by the proper
person or persons;
g. may conclusively rely on and are protected in acting upon written
instructions from any Executive Officer of the Company;
h. may consult with counsel of your selection with respect to any
questions relating to your duties and responsibilities and the advice or
opinion of such counsel shall
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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
i. shall not advise any person tendering Old 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 values of any Old Notes.
16. You shall take such action as may from time to time be requested by
the Company (and such other action as you may deem appropriate) to furnish
copies of the Prospectus, Letter of Transmittal and 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 to the
procedures for accepting (or withdrawing from) the Exchange Offer. The Company
will furnish you with copies of such documents on your request. All other
requests for information relating to the Exchange Offer shall be directed to the
Company, Attn: Xxxx Xxxxxxxxxx, Chief Financial Officer.
17. You shall advise by facsimile transmission the Company ((703)
563-7601), Xxxxxxxx X. Xxxx, Esq. of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
((000) 000-0000) and such other person or persons as the Company may request,
daily (and more frequently during the week immediately preceding the Expiration
Date if requested) up to and including the Expiration Date, as to the number of
Old Notes which have been rendered pursuant to the Exchange Offer and the items
received by you pursuant to this Exchange Agent Agreement, separately reporting
and giving cumulative totals as to each items properly received and items
improperly received. In addition, you shall also inform, and cooperate in making
available to, the Company 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
they may reasonably request. Such cooperation will 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 Expiation 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 principal amount of Old Notes
tendered, the aggregate principal amount of Old Notes accepted, and deliver said
list to the Company.
18. Letters of Transmittal and Notices of Guaranteed Delivery shall be
stamped by you as to the date and, after the expiration of the Exchange Offer,
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.
19. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on Schedule I attached hereto. The
provisions of this section shall survive the termination of this Exchange Agent
Agreement.
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20. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal. Any inconsistency between this Exchange Agent Agreement, on the one
hand, and the Prospectus and the Letters of Transmittal (as they may be amended
from time to time), on the other hand, shall be resolved in favor of the Letter
of Transmittal or Prospectus, except with respect to your duties, liabilities
and indemnification as Exchange Agent.
21. The Company covenants and agrees to fully indemnify and hold you
harmless against any and all loss, liability, reasonable cost or expense,
including reasonable attorneys' fees and expenses, incurred without negligence
or willful misconduct or bad faith on your part, arising out of or in connection
with 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 Old 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 Old Notes. 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 retains
counsel reasonably satisfactory to you to defend such suit, and so long as there
is no conflict of interest that exists between you and the Company. The
provisions of this section shall survive the termination of this Exchange Agent
Agreement.
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.
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 Old Notes, the Company's check in the amount of all transfer taxes
so payable; 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.
24. This Exchange Agent Agreement and your appointment as Exchange Agent
hereunder shall be construed and enforced in accordance with the laws of the
State of New York, and without regard to conflict of law principles, and shall
inure to the benefit of, and the obligations crested hereby shall be binding
upon, the successors and assigns of each of the parties hereto.
25. This Exchange Agent Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same agreement.
26. In case any provision of this Exchange Agent Agreement is invalid,
illegal or unenforceable due validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
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27. This Exchange Agent Agreement is not 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 Exchange Agent 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;
DigitalNet, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Facsimile: 703/563-7601
Attention: Xxxx Xxxxxxxxxx
with copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Facsimile: 202/639-7003
Attention: Xxxxxxxx X. Xxxx
If to the Exchange Agent:
Xxxxx Fargo Bank Minnesota, National Association
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. X'Xxxxxxx
Corporate Trust Services
29. Unless terminated earlier by the parties hereto, this Exchange Agent
Agreement shall terminate 90 days following the Expiration date. Notwithstanding
the foregoing Sections 19 and 21 shall survive the termination of this Exchange
Agent Agreement. Upon any termination of this Exchange Agent Agreement, you
shall promptly deliver to the Company any certificates for Securities, funds or
property then held by you as Exchange Agent under this Exchange Agent Agreement.
[Remainder Of This Page Is Intentionally Left Blank]
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IN WITNESS WHEREOF, each or the parties has caused this Exchange Agent
Agreement to be executed on its behalf by its officers thereunto duly
authorized, all as of the date first above written.
DIGITALNET, INC.
By:
-------------------------------------
Xxxx Xxxxxxxxxx
Chief Financial Officer, Treasurer
and Secretary
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, AS
EXCHANGE AGENT
By:
-------------------------------------
Xxxxxx X. X'Xxxxxxx
Corporate Trust Officer
