EXHIBIT 99.3
_______, 1999
EXCHANGE AGENT AGREEMENT
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The Bank of New York
Corporate Trust Division
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 outstanding 6% Debentures Due 2010 (the "Initial
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Debentures Due 2010") and 6.40% Debentures Due 2018 (the "Initial Debentures Due
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2018", and collectively with the Initial Debentures Due 2010, the "Initial
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Debentures"), for 6% Exchange Debentures due 2010 (the "Exchange Debentures Due
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2010") and 6.40% Exchange Debentures due 2018 (the "Exchange Debentures Due
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2018" and collectively with the Exchange Debentures Due 2010, the "Exchange
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Debentures"), respectively. The terms and conditions of the Exchange Offer as
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currently contemplated are set forth in a prospectus, dated ________, 1999 (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 Debentures.
The Initial Debentures and the Exchange Debentures are collectively referred to
herein as the "Debentures."
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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
_______, 1999. The Letter of Transmittal accompanying the Prospectus (or in the
case of book entry Debentures, the ATOP system) is to be used by the holders of
the Initial Debentures to accept the Exchange Offer and contains instructions
with respect to the delivery of certificates for Initial Debentures tendered in
connection therewith.
The Exchange Offer shall expire at 5:00 P.M., New York City time, on
_______, 1999 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
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 Bank of New York
Corporate Trust Division
_________, 1999
Page -2-
The Company expressly reserves the right to amend or terminate the Exchange
Offer, and not to accept for exchange any Initial Debentures 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 Debentures 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 make book-entry delivery of the Initial Debentures by
causing the Book-Entry Transfer Facility to transfer such Initial Debentures
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 Debentures (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 Debentures 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 Debentures 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 Initial Debentures 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 Debentures pursuant to the Exchange Offer.
The Bank of New York
Corporate Trust Division
_________, 1999
Page -3-
5. Tenders of Initial Debentures 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 Debentures", and Initial Debentures
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 Debentures
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 Debentures
received subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Initial Debentures.
7. You shall accept tenders:
(a) in cases where the Initial Debentures 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
(c) from persons other than the registered holder of Initial Debentures
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 Debentures where so indicated
and as permitted in the Letter of Transmittal and return any untendered Initial
Debentures 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 Debentures properly tendered and you, on behalf of the Company, will
exchange such Initial Debentures for Exchange Debentures and cause such Initial
Debentures to be cancelled. Delivery of Exchange Debentures will be made on
behalf of the Company by you at the rate of
The Bank of New York
Corporate Trust Division
_________, 1999
Page -4-
$1,000 principal amount of Exchange Debentures for each $1,000 principal amount
of the corresponding series of Initial Debentures tendered promptly after notice
(such notice if given orally, to be confirmed in writing) of acceptance of said
Initial Debentures by the Company; provided, however, that in all cases, Initial
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Debentures tendered pursuant to the Exchange Offer will be exchanged only after
timely receipt by you of certificates for such Initial Debentures (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 Debentures 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 Debentures 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 Debentures
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 Debentures
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 Debentures tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus under
the caption "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
Debentures (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 Debentures, unaccepted Initial
Debentures or for Exchange Debentures 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;
The Bank of New York
Corporate Trust Division
_________, 1999
Page -5-
(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 Debentures 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 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;
(f) may rely on and shall be protected in acting upon written or oral
instructions from the Chief Executive Officer, Chief Financial Officer and
Senior Vice President and Secretary of the Company;
(g) may consult with your counsel 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 Debentures 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 Debentures.
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,
The Bank of New York
Corporate Trust Division
_________, 1999
Page -6-
provided that such information shall relate only to the procedures for accepting
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(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 Debentures 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
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 Initial Debentures
tendered, the aggregate principal amount of Initial Debentures 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
The Bank of New York
Corporate Trust Division
_________, 1999
Page -7-
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 indemnify and hold you harmless in
your capacity as Exchange Agent hereunder against any loss, liability, cost or
expense, including attorneys' fees and expenses, 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 Initial Debentures 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 Debentures; provided, however, that the Company
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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
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 Debentures, 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
The Bank of New York
Corporate Trust Division
_________, 1999
Page -8-
taxes payable in respect of the exchange of Initial Debentures; provided,
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however, that you shall reimburse the Company for amounts refunded to you in
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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.
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 Secretary
The Bank of New York
Corporate Trust Division
_________, 1999
Page -9-
with a copy to:
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. X'Xxxxx, Esq.
Xxxxx X. Xxxxxxx, Esq.
If to the Exchange Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx, 00X
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Corporate Trust Division
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 Debentures, 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:
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Name:
Title:
The Bank of New York
Corporate Trust Division
_________, 1999
Page -10-
Accepted as of the date
first above written:
THE BANK OF NEW YORK, as Exchange Agent
By:
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Name:
Title:
SCHEDULE I
FEES
$3,500 Acceptance Fee
$500 per each extension of Exchange Offer
