Exhibit 99.3
FORM OF EXCHANGE AGENT AGREEMENT
____________, 0000
Xxxxxx Xxxxxx Trust Company of New York
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxx
Assistant Vice President
Dear Xx. Xxxxxxx:
Metallurg Holdings, Inc., a Delaware corporation (the "Company"), proposes to
make an offer (the "Exchange Offer") to exchange up to $121,000,000 aggregate
principal amount of its 12 3/4% Series B Senior Discount Notes due 2008 (the
"Exchange Notes"), for a like principal amount of its outstanding 12 3/4% Series
A Senior Discount Notes due 2008 (the "Private Notes"). The terms and
conditions of the Exchange Offer are set forth in a prospectus (the
"Prospectus") included in the Company's registration statement on form S-4
(File No. 333-_____) (the "Registration Statement"), filed with the
Securities and Exchange Commission (the "SEC"), proposed to be distributed to
all record holders of the Private Notes. The Private Notes and the Exchange
Notes are collectively referred to herein as the "Notes." Capitalized terms
used herein and not defined shall have the respective meanings ascribed to
them in the Prospectus. The Company hereby appoints United States Trust
Company of New York to act as exchange agent (the "Exchange Agent") in
connection with the Exchange Offer. References hereinafter to "you" shall
refer to United States Trust Company of New York.
The Exchange Offer is expected to be commenced by the Company on or about
______________, 1998. The Letter of Transmittal accompanying the Prospectus
is to be used by the holders of the Private Notes to accept the Exchange
Offer and contains instructions with respect to the delivery of certificates
for Private Notes tendered.
The Exchange Offer shall expire at 5:00 P.M., New York City time,
on _______________, 1998, 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 next business day after the
previously scheduled Expiration Date.
The Company expressly reserves the right, in its sole discretion, to amend or
terminate the Exchange Offer, and not to accept for exchange any Private
Notes not theretofore accepted for exchange. 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," in the Letter of Transmittal accompanying the Prospectus or
as specifically set forth herein; provided, however, that in no way will your
general duty to act in good faith and without gross negligence or willful
misconduct be limited by the foregoing.
2. You will establish an account with respect to the Private
Notes at The Depository Trust Company (the "Book-Entry Transfer Facility")
for purposes of the Exchange Offer within two business days after the date of
the Prospectus, and any financial institution that is a participant in the
Book- Entry Transfer Facility's systems may make book-entry delivery of the
Private Notes by causing the Book-Entry Transfer Facility to transfer such
Private Notes into your account in accordance with the Book-Entry Transfer
Facility's procedures for such transfer.
3. You are to examine each of the Letters of Transmittal and
certificates for Private Notes (and confirmation of book-entry transfers of
Private Notes into your account at the Book-Entry Transfer Facility) and any
other documents delivered or mailed to you by or for holders of the Private
Notes, to ascertain whether: (i) the Letters of Transmittal, certificates and
any such other documents are duly executed and properly completed in
accordance with instructions set forth therein and that such book-entry
confirmations are in due and proper form and contain the information required
to be set forth therein, and (ii) the Private 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
any of the certificates for Private Notes 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 Chairman, the President and Chief
Executive Officer, any of the Vice Presidents, the Treasurer or the Secretary
(such approval, if given orally, to be confirmed in writing) or any other
person designated by such an officer in writing, you are authorized to waive
any irregularities in connection with any tendency of Private Notes pursuant
to the Exchange Offer.
5. Tenders of Private 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 Private 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, Private Notes which the Chairman, the President and Chief
Executive Officer, any of the Vice Presidents, the Treasurer or the Secretary
or any other officer of the Company designated by any such person 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 Private
Notes received subsequent to the Expiration Date and accept its instructions
with respect to disposition of such Private Notes.
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7. You shall accept tenders:
(a) cases where the Private 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 proper evidence of his or her authority so to act is submitted; and
(c) from persons other than the registered holder of Private Notes
provided that customary transfer requirements, including those regarding any
applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Private Notes when so indicated
and as permitted in the Letter of Transmittal and deliver certificates for
Private Notes to the transfer agent for split-up and return any untendered
Private Notes to the holder (or such other person as may be designated in the
Letter of Transmittal) as promptly as practicable after expiration or
termination of the Exchange Offer.
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 Private Notes properly tendered and you, on behalf of the
Company, will exchange such Private Notes for Exchange Notes and cause such
Private Notes to be canceled. 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 Private Notes tendered
promptly after notice (such notice if given orally, to be confirmed in
writing) of acceptance of said Private Notes by the Company; provided,
however, that in all cases, Private Notes tendered pursuant to the Exchange
Offer will be exchanged only after timely receipt by you of certificates for
such Private Notes (or confirmation of book-entry transfer into your account
at the Book-Entry Transfer Facility), a properly completed and, except as
described in the section of the prospectus captioned "The Exchange Offer -
Procedures for Tendering," duly executed Letter of Transmittal (or facsimile
thereof) with any required signature guarantees and any other required
documents. Unless otherwise instructed by the Company, you shall issue
Exchange Notes only in denominations of $1,000 or any 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, Private 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 exchange any Private
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 Private
Notes 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 Private Notes tendered because of an
invalid tender, the occurrence of certain other events set forth in the
Prospectus or otherwise, you shall as soon as practicable after the
expiration or termination of the Exchange Offer return those certificates for
unaccepted Private Notes (or effect appropriate book-entry transfer),
together with any related required documents and the Letters of Transmittal
relating thereto that are in your possession, to the persons who deposited
them (or effected such book-entry
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transfer).
12. All certificates for reissued Private Notes, unaccepted
Private Notes or for Exchange Notes (other than those effected by book-entry
transfer) shall be forwarded by (a) first-class certified mail, return
receipt requested, under a blanket surety bond obtained by you protecting you
and the Company from loss or liability arising out of the nonreceipt or
nondelivery of such certificates or (b) by registered mail insured by you
separately for the replacement value of each of such certificates.
13. You are not authorized to pay or offer to pay any concessions,
commissions or other solicitation fees to any broker, dealer, commercial
bank, trust company or other nominee or to engage or use any person to
solicit tenders.
14. As Exchange Agent hereunder, you:
(a) shall have no duties or obligations other than those
specifically set forth in the Prospectus, the Letter of Transmittal or herein
or as may be subsequently agreed to in writing by you and the Company;
(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 for the Private 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 Exchange Offer;
(c) will not be obligated to take any legal action hereunder which
might in your reasonable judgment involve any expense or liability, unless
you will have been furnished with reasonable indemnity;
(d) may rely on and will 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 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 any officer of the Company;
(g) may consult with your counsel with respect to any questions
relating to your duties and responsibilities, and the written 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 written opinion of such counsel; and
(h) will not advise any person tendering Private Notes pursuant to
the Exchange Offer as to whether to tender or refrain from tendering all or
any portion of Private Notes or as to the market value, decline or
appreciation in market value of any Private Notes that may or may not occur
as a result of the Exchange Offer or as to the market value of the Exchange
Notes;
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provided, however, that in no way will your general duty to act in good faith
and without gross negligence or willful misconduct be limited by the
foregoing.
15. You will 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, at its
expense, furnish you with copies of such documents at your request.
16. You will advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to Xxxxx Xxxxxxxx Xxxxxxx of the
Company (telephone number (000) 000-0000, facsimile number (000) 000-0000),
and such other person or persons as the Company may request, daily up to and
including the Expiration Date as to the aggregate principal amount of Private
Notes which have been duly tendered pursuant to the Exchange Offer 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 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 Private Notes tendered, the
aggregate principal amount of Private Notes accepted and the identity of any
Participating Broker-Dealers and the aggregate principal amount of Exchange
Notes delivered to each, and deliver said list to the Company.
17. Letters of Transmittal, book-entry confirmations and Notices
of Guaranteed Delivery received by you 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, 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 as instructed by
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.
20. 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
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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 Private 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 Private Notes; provided,
however, that anything in this Agreement to the contrary notwithstanding, 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
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 cable or by facsimile which is 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 may assume the
defense of any pending or threatened action against you in respect of which
indemnification may be sought hereunder, in which case the Company shall not
thereafter be responsible for the subsequently-incurred fees and
disbursements of legal counsel for you under this paragraph so long as the
Company shall retain counsel reasonably satisfactory to you to defend such
suit; provided, that the Company shall not be entitled to assume the defense
of any such action if the named parties to such action include both you and
the Company and representation of both parties by the same legal counsel
would, in the written opinion of your counsel, be inappropriate due to actual
or potential conflicting interests between you and the Company. You
understand and agree that the Company shall not be liable under this
paragraph for the fees and expenses of more than one legal counsel for you,
unless, in your reasonable opinion, local counsel outside of the State of New
York is necessary.
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, in
certain instances, to deduct thirty-one percent (31%) with respect to
interest paid on the Exchange Notes and proceeds from the sale, exchange,
redemption or retirement of the Exchange Notes from 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 notify the Company of the amount of any transfer
taxes payable in respect of the exchange of Private Notes and, upon receipt
of a written approval from the Company, 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 Private 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 Private Notes; provided, however, that you shall reimburse
the Company for amounts refunded to you in respect of your payment of any
such transfer taxes, at such time as such refund is received by you.
24. This 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.
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25. This Agreement shall be binding upon and inure solely to the
benefit of each party 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 Private Notes or Exchange Notes shall have any right,
benefit or remedy of any nature whatsoever under, or by reason of, this
Agreement.
26. 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.
27. 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.
28. 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.
29. 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, to:
Metallurg Holdings, Inc.
800 The Safeguard Building
000 Xxxxx Xxxx Xxxxx
Xxxxx, Xxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx Xxxxxxxx Xxxxxxx
with a copy to:
Xxxxxx & Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
If to the Exchange Agent, to:
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-0000
Telecopy: 852-1626
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Attention: Xxxxxxxx Xxxxxxx
30. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration Date.
Notwithstanding the foregoing, paragraphs 17, 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 Notes, funds or
property then held by you as Exchange Agent under this Agreement.
31. 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.
METALLURG HOLDINGS, INC.
By:
---------------------------------
Name:
Title:
Accepted as of the date first above written:
UNITED STATES TRUST COMPANY OF NEW YORK,
as Exchange Agent
By:
---------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Assistant Vice President
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