EXCHANGE AGENT AGREEMENT
Exhibit 99.5
,
2010
U.S. Bank National Association
Attn: Xxxxx X. Qui Belle
Corporate Trust Services
One U. S. Xxxx Xxxxx 0xx Xxxxx
Xx. Xxxxx, XX 00000
Ladies and Gentlemen:
ACCO Brands Corporation, a Delaware corporation (the
“Company”), proposes to make an offer (the
“Exchange Offer”) to exchange up to $460 million
aggregate principal amount of its 10.625% Senior Secured
Notes due 2015 (the “New Notes”) for an equal
aggregate principal amount of its outstanding
10.625% Senior Secured Notes due 2015 (the “Old
Notes”). The terms and conditions of the Exchange Offer as
currently contemplated are set forth in a prospectus
dated ,
2010 included in the Company’s registration statement on
Form S-4
(File
No. 333- )
as amended (the “Registration Statement”) filed with
the Securities and Exchange Commission (the “SEC”)
on ,
2010. The Old Notes and the New Notes are collectively referred
to in this Exchange Agent Agreement (this “Agreement”)
as the “Notes” or the “Securities.”
Capitalized terms used herein and not defined shall have the
respective meanings ascribed to them in the Registration
Statement or the accompanying letter of transmittal (the
“Letter of Transmittal”).
The Company hereby appoints U.S. Bank National Association
to act as exchange agent (the “Exchange Agent”) in
connection with the Exchange Offer. References hereinafter to
“you” shall refer to U.S. Bank National
Association.
The Exchange Offer is expected to be commenced by the Company on
or
about ,
2010. The Letter of Transmittal accompanying the Registration
Statement is to be used by the holders of the Old Notes to
tender into the Exchange Offer, and contains instructions with
respect to the delivery of Old Notes tendered. The Exchange
Agent’s obligations with respect to the receipt and
inspection of each Letter of Transmittal in connection with the
Exchange Offer shall be satisfied for all purposes hereof by
(1) inspection of the electronic message transmitted to the
Exchange Agent by Exchange Offer participants in accordance with
the Automated Tender Offer Program (“ATOP”) of The
Depository Trust Company (“DTC”), and by
otherwise observing and complying with all procedures
established by DTC in connection with ATOP, to the extent that
ATOP is utilized by Exchange Offer participants, or
(2) inspection of the Letter of Transmittal submitted by
each holder of Old Notes who does not use ATOP and submits a
physical Letter of Transmittal to the Exchange Agent.
The Exchange Offer shall expire at 5:00 p.m., New York City
time,
on ,
2010 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
Registration Statement, 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, and by giving holders of Notes notice by
press release, at any time before 9:00 a.m., New York City
time, on the business day following the previously scheduled
Expiration Date, and in such case the term “Expiration
Date” shall mean the time and date on which the Exchange
Offer as so extended shall expire.
The Company expressly reserves the right, in its sole
discretion, to delay, amend or terminate the Exchange Offer, and
not to accept for exchange any Old Notes not theretofore
accepted for exchange, upon the occurrence of any of the
conditions of the Exchange Offer specified in the Registration
Statement under the caption “The Exchange Offer —
Conditions to the Exchange Offer.” The Company will give to
you as promptly as practicable oral (confirmed in writing) or
written notice of any delay, amendment, termination or
non-acceptance.
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 herein, in the section of the
Registration Statement captioned “The Exchange Offer,”
and in the Letter of Transmittal accompanying the Registration
Statement and such duties which are necessarily incidental
thereto; provided, however, that in no way will your general
duty to act in good faith be discharged by the foregoing.
2. You will establish a book-entry account with respect to
the Old Notes at DTC for purposes of the Exchange Offer within
two business days after the effective date of the Registration
Statement, and any financial institution that is a participant
in DTC’s systems may make book-entry delivery of the Old
Notes by causing DTC to transfer such Old Notes into your
account in accordance with DTC’s procedures (including, as
applicable, ATOP) for such transfer. The account shall be
maintained until all Old Notes tendered pursuant to the Exchange
Offer shall have been either accepted or returned.
3. You are to examine each of the Letters of Transmittal
(or confirmation of book-entry transfers into your account at
DTC) and any other documents delivered or mailed to you by or
for holders of the Old 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 or that such book-entry confirmations are in
due and proper form and contain the information required to be
set forth therein, and (ii) 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 where book-entry confirmations are not in due and
proper form or omit certain information 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 reasonably available to you as may be necessary or
advisable to cause such irregularity to be corrected.
4. Subject to Section 5 below, tenders of Old Notes
may be made only as set forth in the Letter of Transmittal and
in the section of the Registration Statement 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.
5. With the prior approval of any of Xxxx X. Xxxxxxx, Chief
Financial Officer; Xxxxxx X. X’Xxxxx, Xx., Senior Vice
President, Finance and Accounting; Xxxxxx Xxxx, Treasurer; and
Xxxxxx Xxxxx, Senior Vice President, Secretary and General
Counsel of the Company (each, an “Authorized Officer”)
(such approval, if given orally, promptly to be confirmed in
writing) or any other party designated by such officer in
writing, you are authorized to waive any irregularities in
connection with any tender of Old Notes pursuant to the Exchange
Offer. You are not otherwise authorized to waive any such
irregularities.
Notwithstanding the provisions of this paragraph 5, Old
Notes which an Authorized Officer or any other party designated
by any such officer in writing, shall approve as having been
properly tendered shall be considered to be properly tendered
(such approval, if given orally, shall be promptly confirmed in
writing, and in no event shall you be required to accept as
properly tendered Old Notes until any such oral approval is
confirmed in writing).
6. You shall promptly advise the Company with respect to
any Old Notes delivered 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 on the
Letter of Transmittal) is acting in a fiduciary or a
representative capacity only when evidence reasonably
satisfactory to you of his or her authority so to act is
submitted; and
(c) from persons other than the holder of Old Notes
provided that customary transfer requirements, including any
payment of applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Notes where so indicated
and as permitted in the Letter of Transmittal and return any
untendered Old Notes through the facilities of DTC 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. A new certificate for the
remainder of the principal amount of the Old Notes will be sent
to the holders of Old Notes unless otherwise indicated by
partial tendering holders of Old Notes.
8. Upon satisfaction or waiver of all of the conditions to
the Exchange Offer, the Company will notify you (such notice if
given orally, promptly to be confirmed in writing) of its
acceptance, promptly after the Expiration Date, of all Old Notes
properly tendered and you, on behalf of the Company, will cause
the exchange of such Old Notes for New Notes and cause such Old
Notes to be cancelled. Delivery of New Notes will be made on
behalf of the Company by you at the rate of a $2,000 principal
amount New Note for each $2,000 principal amount Old Note and,
with respect to Old Notes in excess of such amount, New Notes in
integral multiples of $1,000 in excess thereof (unless otherwise
instructed in writing by the Company) for each principal amount
of the Old Notes in excess of such amount tendered, and, in the
case of Old Notes tendered, promptly after notice (such notice
if given orally, promptly to be confirmed in writing) 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 your account at DTC), a
properly completed and duly executed Letter of Transmittal (or
facsimile thereof) (or an Agent’s Message, as defined in
the Registration Statement) with any required signature
guarantees and any other required document. Unless otherwise
instructed in writing by the Company, you shall issue New Notes
only in denominations of $2,000 or any integral multiples of
$1,000 in excess thereof. The amount of New Notes issued to a
tendering holder will be rounded down to $2,000 or the nearest
integral multiple of $1,000 in excess thereof, with any
fractional amount refunded to such tendering holder in cash.
9. Tenders pursuant to the Exchange Offer are irrevocable
after the Expiration Date. Subject to the terms and upon the
conditions set forth in the Registration Statement and the
Letter of Transmittal, Old Notes tendered pursuant to the
Exchange Offer may be withdrawn at any time on or prior to the
Expiration Date in accordance with the terms of the Exchange
Offer.
10. The Company shall not be required to accept any Old
Notes tendered if any of the conditions set forth in the
Registration Statement are not met. Notice of any decision by
the Company not to accept any Old Notes tendered shall be given
(such notices if given orally, promptly shall be confirmed in
writing) by the Company to you.
11. If, pursuant to the Registration Statement, 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 events set forth in the Registration Statement or
otherwise, you shall as soon as practicable after the expiration
or termination of the Exchange Offer return those unaccepted Old
Notes by 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
effected such book-entry transfer.
12. 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
persons to solicit tenders.
13. As Exchange Agent hereunder you:
(a) will be regarded as making no representations and
having no responsibilities as to the validity, sufficiency,
value or genuineness of any of the Old Notes 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 Registration Statement;
(b) 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 indemnity;
(c) shall not be liable to the Company for any action taken
or omitted by you, or any action suffered by you to be taken or
omitted, without negligence, misconduct or bad faith on your
part, by reason of or
as a result of the administration of your duties hereunder in
accordance with the terms and conditions of this Agreement or by
reason of your compliance with the instructions set forth herein
or with any written or oral instructions delivered to you
pursuant hereto, and may reasonably rely on and shall be
protected in acting in good faith in reliance upon any
certificate, instrument, opinion, notice, letter, facsimile 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;
(d) 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
reasonably believe to be genuine or to have been signed or
represented by a proper person or persons;
(e) may rely on and shall be protected in acting upon
written notice or oral instructions from an Authorized Officer
or any other party designated by any such officer of the Company;
(f) shall not advise any person tendering Old Notes
pursuant to the Exchange Offer as to whether to tender or
refrain from tendering all or any portion of Old Notes or as to
the market value, decline or appreciation in market value of any
Old Notes that may or may not occur as a result of the Exchange
Offer or as to the market value of the New Notes;
(g) may consult with counsel of your choice with respect to
any questions relating to your duties and responsibilities, and
the written advice or opinion of such counsel shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted by you hereunder in good faith and in
reliance thereon; and
(h) in your capacity as Exchange Agent, shall act solely as
agent of the Company and shall not assume any obligation, or
relationship of agency or trust for or with any of the owners or
holders of the Old Notes.
14. You shall send by email or such other means as
specified by the Company to all holders of Old Notes a copy of
the Registration Statement, the Letter of Transmittal, the
Notice of Guaranteed Delivery (as defined in the Registration
Statement) and such other documents (collectively, the
“Exchange Offer Documents”) as may be furnished by the
Company to commence the Exchange Offer and take such other
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 Exchange Offer Documents
or such other forms as may be approved from time to time by the
Company, to all holders of Old Notes 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 at your request. All other
requests by holders of Old Notes for information relating to the
Exchange Offer shall be directed to the Company, Attention:
General Counsel, at the Company’s offices at 000 Xxxxx
Xxxxxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000, telephone number:
(000) 000-0000.
15. You shall advise by facsimile transmission, email or
telephone, and promptly thereafter confirm in writing to Xxxxxx
Xxxxx, Senior Vice President, General Counsel and Secretary (at
the facsimile number
(000) 000-0000
or the email address Xxxxx.xxxxx@xxxx.xxx), and such other
person or persons as the Company may request in writing, 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 aggregate principal amount of Old
Notes which have been tendered pursuant to the Registration
Statement and the items received by you pursuant to the Exchange
Offer and 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 or any such other
person or persons as the Company requests in writing 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 Old Notes tendered, the aggregate principal
amount of Old Notes accepted and the identity of any
participating broker-dealers and the aggregate principal amount
of New Notes delivered to each, and deliver said list to the
Company.
16. 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
shall be preserved by you for a period of time at least equal to
the period of time you customarily preserve other records
pertaining to the transfer of securities, or one year, whichever
is longer, and thereafter shall be delivered by you to the
Company. You shall dispose of unused Letters of Transmittal and
other surplus materials in accordance with your customary
procedures.
17. The Company agrees to pay your customary fees, attached
hereto as Exhibit A, for serving as Exchange Agent
and to reimburse you for reasonable legal fees and expenses, if
and when incurred.
18. You hereby acknowledge receipt of the Registration
Statement, the Letter of Transmittal and the other documents
associated with the Exchange Offer attached hereto and further
acknowledge that you have examined each of them. Any
inconsistency between this Agreement, on the one hand, and the
Registration Statement, the Letter of Transmittal and such other
forms (as they may be amended from time to time), on the other
hand, shall be resolved in favor of the Registration Statement,
the Letter of Transmittal and such other forms, except with
respect to the duties, liabilities and indemnification of you as
Exchange Agent which shall be controlled by this Agreement.
19. The Company agrees to indemnify and hold you and your
officers, directors, employees, agents and affiliates harmless
against any liability, cost or expense, including reasonable
attorneys’ fees and expenses, arising out of or in
connection with your appointment as Exchange Agent and the
performance of your duties hereunder, including, without
limitation, any act, omission, delay or refusal made by you in
reasonable 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;
provided, however, 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 gross
negligence, willful misconduct or bad faith. In each case, the
Company shall be notified by you, by letter or facsimile
transmission, 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 shall have
been served with a summons in connection therewith. 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, provided that (a) the Company
shall retain counsel reasonably satisfactory to you to defend
such suit, and (b) you do not determine, in your reasonable
judgment, that a conflict of interest exists between you and the
Company. For so long as (x) the Company retains counsel
reasonably satisfactory to you to defend such suit and
(y) you do not determine, in your reasonable judgment, that
a conflict of interest exists between you and the Company, the
Company shall not be liable for the fees and expenses of
separate counsel retained by you thereafter to defend any such
suit. The Company’s obligations under this
paragraph 19 shall survive the termination of this
Agreement and the discharge of your obligation hereunder and any
other termination of this Agreement under any federal or state
bankruptcy law.
20. You shall cooperate with the Company to comply with all
requirements under the applicable tax laws of the United States,
including those relating to missing Tax Identification Numbers,
and shall, to the extent you are required, timely and duly file
any appropriate reports with the Internal Revenue Service in
accordance with such laws.
21. You shall notify the Company of the amount of any
transfer taxes payable in respect of the exchange of Old Notes
and, upon receipt of an amount to pay such taxes, 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
payment 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 the payment of any such
transfer taxes, at such time as such refund is received by you.
22. 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 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 and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person any right,
benefit or remedy of any nature whatsoever under or by reason of
this Agreement. Without limitation of the foregoing, the parties
hereto expressly agree that no holder of Old Notes or New Notes
shall have any right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement.
23. 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.
24. 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.
25. This Agreement shall not be deemed or construed to be
modified, amended, rescinded, canceled or waived, in whole or in
part, except by a written instrument signed by a duly authorized
representative of the party to be charged.
26. Unless otherwise provided herein, all notices, requests
and other communications to any party hereunder shall be in
writing (including facsimile) and shall be given to such party,
addressed to it, at its address or telecopy number set forth
below:
If to the Company:
ACCO Brands Corporation
000 Xxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel
000 Xxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel
With a copy to:
Xxxx X. Xxxxxxxxxx
Xxxxxx Price P.C.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile:
(000) 000-0000
If to the Exchange Agent:
U.S. Bank National Association
Corporate Trust Services
Attn: Xxxxx Xxxxxxx, Vice President
000 X. XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
27. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration
Date. Notwithstanding the foregoing, Paragraphs 17 and 19
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
(including, without limitation, Letters of Transmittal and any
other documents relating to the Exchange Offer) then held by you
as Exchange Agent under this Agreement.
28. 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.
SIGNATURE
PAGE FOLLOWING
ACCO BRANDS CORPORATION
| By: |
Name:
Title:
Accepted as of the date first above written:
U.S. Bank National Association, as Exchange Agent
By:
Name:
Title:
EXHIBIT A
Fee
Schedule
|
Exchange Agent Fee
|
$ |
