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EXHIBIT 99.3
___________________, 1999
EXCHANGE AGENT AGREEMENT
The Bank of New York
Corporate Trust Trustee Administration
000 Xxxxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Valassis Communications, Inc. (the "Company") proposes to make an offer
(the "Exchange Offer") to exchange an aggregate principal amount of up to
$100,000,000 6 5/8% Senior Notes Due 2009 (the "Exchange Notes") for a like
principal amount of the Company's issued and outstanding 6 5/8% Senior Notes Due
2009 (the "Old Notes"). The terms and conditions of the Exchange Offer as
currently contemplated are set forth in a prospectus dated ____________, 1999
(the "Prospectus") proposed to be distributed to all record holders of the Old
Notes. Capitalized terms used but not defined herein shall have the same meaning
given to them in the Prospectus.
The Company hereby appoints The Bank of New York to act as exchange
agent (the "Exchange Agent") in connection with the Exchange Offer. References
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 securities, the ATOP system) 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 Offer shall expire at _____, 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. You shall follow and act upon any further instructions in
connection with the Exchange Offer, any of which may be given to you by the
Company or such other persons as it may authorize, which are consistent with
this Agreement.
The Company expressly reserves the right to 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 Prospectus under the caption "The Exchange
Offer-Conditions to the Exchange Offer."
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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 "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 will establish an account with respect to the Old Notes at The
Depository Trust Company (the "Book-Entry Transfer Facility") for purposes of
the Exchange Offer within two (2) 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 Old Notes
by causing the Book-Entry Transfer Facility to transfer such Old Notes 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 Old Notes (or confirmations 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 Old Notes to ascertain whether: (i)
Letters of Transmittal are duly executed and properly completed in accordance
with instructions set forth therein, (ii) the Old Notes have otherwise been
properly tendered or whether any stop transfer orders are in effect with respect
to the Old Notes, and (iii) any other documents submitted to you are duly
executed and properly completed. 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 (as required by
the instructions stated in the Letter of Transmittal) 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 President or any Executive Vice President
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 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 paragraph 5, Old Notes which the
President or any Executive Vice President 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).
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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 (2) 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 Old Notes,
provided that customary transfer requirements, including transfer taxes, if
applicable, are fulfilled.
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 transfer agent for split-up and return any untendered Old Notes to the
holder (or such other person as may be designated in the Letter of Transmittal)
as set forth in paragraph 10 hereof.
8. (a) Except as otherwise provided herein, delivery shall be deemed
made at the time the Old Notes (or a Book Entry Confirmation relating to such
Old Notes), the Letter(s) of Transmittal relating thereto and all other required
documents have been received by you.
(b) A delivery by Notice of Guaranteed Delivery shall be deemed made on
the date such Notice of Guaranteed Delivery is received by you, provided that
all other conditions, including timely compliance with the procedures for
guaranteed delivery set forth in the Prospectus, are met.
(c) Defective deliveries shall be deemed validly made at the time the
irregularities have been cured to the satisfaction of, or waived by, the
Company.
9. You shall notify the Company as promptly as practicable after the
Expiration Date of the aggregate principal amount of Old Notes received by you
along with the specific information requested with respect to each category of
Old Notes pursuant to paragraph 21 hereof.
10. 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, within two days of receipt of your
notice pursuant to paragraph 9 hereof, of all Old Notes properly tendered and
you, on behalf of the Company, will exchange such Old Notes for Exchange Notes
and cause such Old Notes to be cancelled. Delivery of Exchange Notes will be
made on behalf of the Company by you at the rate of $1,000 principal amount of
Exchange Notes for each $1,000 principal amount of the corresponding series of
Old Notes tendered promptly after notice (such notice if given orally, to be
confirmed in writing) of acceptance of said Old Notes by the Company, as set
forth above; provided, however, that in all cases, Old Notes tendered pursuant
to the
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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 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
Notes only in denominations of $1,000 or any integral multiple thereof. Delivery
of Old Notes will be made on behalf of the Company by you for the principal
amount of the Old Notes not tendered, if tendered in part only, or not exchanged
promptly after notice of acceptance of Old Notes by the Company, as set forth
above.
11. You are authorized to cause to be registered in the name of, and
deliver to the transferee in accordance with such instructions, Exchange Notes
if Old Notes are surrendered to you for exchange with instructions to deliver
Exchange Notes in a name other than that of the registered holder of the Old
Notes; provided, however, that it shall be a condition of such exchange that the
Old Notes so surrendered shall be properly endorsed or accompanied by
appropriate powers of attorney or other written instruments of transfer or
exchange satisfactory to the Company, with the signatures guaranteed by an
Eligible Institution, and that the person requesting such exchange shall pay any
transfer or other taxes required by reason of the issuance of such Exchange
Notes in the name of a party other than the registered holder of the Old Notes
surrendered, or establish to you satisfaction that such tax has been paid or is
not applicable.
12. If a holder of Old Notes shall advise you that Old Notes owned by
the holder have been lost or destroyed and not replaced, you are hereby
authorized, in the absence of notice to you that such Old Notes have been
acquired by a bona fide purchaser, to deliver to such holder the Exchange Notes
to which that holder would be entitled, but only if you shall first have
received (i) an affidavit of loss of an Old Note which is in form and substance
satisfactory to the Company and the trustee under the indenture relating to the
Old Note, in their sole discretion, and (ii) such security or indemnity as may
be required by the Company or you to save and hold harmless to you, the Company,
the trustee under the indenture relating to the Old Notes and any other persons
with respect to the Old Notes alleged to have been lost or destroyed against
liability from such delivery in the absence of such Old Notes.
13. 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.
14. The Company shall not be required to exchange any Old Notes
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 Old Notes tendered
shall be given (if orally, to be confirmed in writing) by the Company to you.
15. 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 events set forth in the Prospectus under the caption
"The Exchange Offer-Conditions to the Exchange Offer" or otherwise, you shall,
as soon as practicable after the
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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, with a letter or notice, in form satisfactory to
the Company, explaining why the Old Notes are being returned to the persons who
deposited them.
16. All certificates for reissued Old Notes, unaccepted Old Notes or
for Exchange Notes shall be forwarded by first-class mail.
17. You are authorized to cooperate with and furnish information to
XxXxxxxxx, Will & Xxxxx or any of its representatives, or any other organization
(and its representatives) designated in writing to you from time to time by the
Company, in any manner reasonably requested by it in connection with the
Exchange Offer and the surrender of Old Notes thereunder.
18. 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.
19. 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;
(b) will be regarded as making no representation and having no
responsibilities 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,
except where failure to recognize such invalidity or lack of genuineness would
constitute gross negligence;
(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 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 in good
faith to be genuine and to have been signed by the proper party or parties, and
you need not pass on the legal sufficiency of any signature or verify any
signature guarantee, although you are to ascertain whether each signature or
signature guarantee required to appear on the Letters of Transmittal and any
other required documents does so appear;
(e) shall not accept any defective, alternative, conditional or
contingent delivery, except as provided in the Prospectus, instructions to the
Letter of Transmittal or this Agreement;
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(f) shall comply with the reasonable written instructions of the
Company if any dispute should arise between us or any other party with respect
hereto, or if you, in good faith, are in doubt as to what action should be taken
hereunder;
(g) may rely on and shall be protected in acting upon written or oral
instructions, with respect to any matter relating to your actions as Exchange
Agent specifically covered by this Agreement, or supplementing or qualifying any
such actions, from the President or any Executive Vice President of the Company;
(h) 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
(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 value of any Old Notes or take any other
action that may be deemed to be a solicitation of the exchange of the Old Notes.
20. 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, 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 for information relating to the Exchange Offer shall be directed
to the Company, Attention: Xxxxx X. Xxxxxxx, Esq.
21. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to Xxxxx X. Xxxxxxx, Esq., Executive Vice
President of the Company, and such other person or persons as the Company 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 Old Notes 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,
items improperly received and items received but which have not yet been
verified to be in proper form. In addition, you will 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 it, 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 access to those persons on your staff who are
responsible for receiving tenders, in order to ensure that at all times
including 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,
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the aggregate principal amount of Old Notes tendered, the aggregate principal
amount of Old Notes accepted and deliver said list to the Company.
22. 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, but in no event
less than three months. You shall dispose of unused Letters of Transmittal and
other surplus materials by returning them to the Company.
23. You hereby expressly waive any lien, encumbrance or right of
set-off whatsoever that you may have with respect to the Old Notes surrendered
to you or 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.
24. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on Schedule I attached hereto. Your
compensation shall be paid and reimbursed to you by the Company promptly upon
submission of one or more invoices therefore.
25. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal and further acknowledge that you have examined each of them. Any
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.
26. The Company covenants and agrees to indemnify and hold you harmless
in your capacity as Exchange Agent hereunder against any claims, 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 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 claims, loss, liability,
cost or expense to the extent arising out of your gross negligence, willful
misconduct, bad faith or breach of this Agreement. 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,
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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
reasonably 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. You shall not enter into a settlement or other
compromise with respect to any fully indemnified loss, liability, cost or
expense without the prior written consent of the Company. If you shall obtain a
repayment of any loss, liability, cost or expense paid by the Company pursuant
hereto, you shall promptly pay to the Company the amount of such repayment,
together with the amount of any interest received by you on account of such
repayment.
27. You shall comply with all requirements under the tax laws of the
United States, including those relating to missing Tax Identification Numbers
and obtaining and retaining substitute forms W-9, and shall file and mail any
appropriate reports which you are required to file pursuant to the Internal
Revenue Code of 1986, as amended, and the regulations promulgated thereunder
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. You shall remit such
funds to the Internal Revenue Service in accordance with applicable regulations
and remit to each tendering holder of Old Notes any requisite federal income tax
information return or other similar document.
28. 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, your check in the amount of all transfer taxes so
payable, and the Company shall reimburse you for the amount of any and all
transfer taxes payable in respect of the exchange of Old Notes and, where
appropriate, advise the holders of any such taxes for which they may be liable
and obtain payment from such holders prior to delivery of any Exchange Notes;
provided, however, that you shall take all steps reasonably necessary to secure
any rebate or refund allowable to connection with such transfer taxes for the
account of the Company and 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.
29. 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. This Agreement 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.
30. This Agreement may be executed in two (2) 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.
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31. 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.
32. 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.
33. Unless otherwise provided herein, all notices, requests and
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:
00000 Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
If to the Exchange Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Corporate Trust Trustee
Administration
34. Unless terminated earlier by the parties hereto, this Agreement
shall terminate ninety (90) days following the Expiration Date. Notwithstanding
the foregoing, Paragraphs 24, 26 and 28 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly deliver to
the Company any certificates for securities, funds or property then held by you
as Exchange Agent under this Agreement.
35. 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.
VALASSIS COMMUNICATIONS, INC.
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By: _________________________________
Name: Xxxxx X. Xxxxxxx, Esq.
Title: Executive Vice President,
General Counsel and Secretary
Accepted as of the date first above written:
THE BANK OF NEW YORK, as Exchange Agent
By: ____________________________
Name:
Title:
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SCHEDULE I
FEES
Basic Exchange Agent Fee................................$5,000
Extension of Exchange Offer...............................$500
Expiration of Exchange Offer..............................$500
after 5:00 p.m. New York time
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