1
EXHIBIT 99.4
EXCHANGE AGENT AGREEMENT
______, 1997
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 11 1/4% Senior Subordinated Notes due 2007 (the "Exchange
Notes"), in exchange for each outstanding $1,000 principal amount of its 11 1/4%
Senior Subordinated Notes due 2007 (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."
2
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.
2
3
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
3
4
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 cancelled 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;
4
5
(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.
5
6
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 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: Winthrop, Stimson, Xxxxxx & Xxxxxxx
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxx
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, Inc.
By:______________________________
Name:
Accepted: Title:
MARINE MIDLAND BANK,
As Exchange Agent
By:______________________________
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
6
