Exhibit 99.3
[Form of Exchange Agent Agreement]
UNITED STATES TRUST COMPANY OF NEW YORK
EXCHANGE AGENT AGREEMENT
April __, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust
Company of New York,
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Ladies and Gentlemen:
Fairfield Manufacturing Company, Inc., a Delaware corporation
(the "Company"), is offering to exchange (the "Exchange Offer") its 11 1/4%
Cumulative Exchangeable Preferred Stock, par value $.01 per share, liquidation
preference $1,000.00 per share (the "New Preferred Stock"), which has been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
for each issued and outstanding share of its 11 1/4% Cumulative Exchangeable
Preferred Stock, par value $.01 per share, liquidation preference $1,000.00 per
share (the "Existing Preferred Stock" and, together with the New Preferred
Stock, the "Preferred Stock"), pursuant to a prospectus (the "Prospectus")
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"). The term "Expiration Date" shall mean 5:00
p.m., New York City time, on __________, 1997, unless the Exchange Offer is
extended as provided in the Prospectus, in which case the term "Expiration Date"
shall mean the latest date and time to which the Exchange Offer is extended.
Upon execution of this Agreement, United States Trust Company of New York will
act as the Exchange Agent for the Exchange Offer (the "Exchange Agent"). A copy
of the Prospectus is attached hereto as Exhibit A. Capitalized terms used and
not otherwise defined herein shall have the respective meanings ascribed thereto
in the Prospectus.
A copy of each of the form of the letter of transmittal (the
"Letter of Transmittal"), the form of the notice of guaranteed delivery (the
"Notice of Guaranteed Delivery") and each other document to be delivered with
respect to the Exchange Offer (collectively, the "Tender Documents") to be used
by holders of Existing Preferred Stock (the "Holders") to surrender Existing
Preferred Stock in order to receive New Preferred Stock pursuant to the Exchange
Offer are attached hereto as Exhibit B.
The Company hereby appoints you to act as Exchange Agent in
connection with the Exchange Offer. In carrying out your duties as Exchange
Agent, you are to act in accordance with the following provisions of this
Agreement:
1. You are to mail the Prospectus and the Tender Documents to
all of the Holders and participants on the day that you are notified by the
Company that the Registration Statement has become effective under the
Securities Act of 1933, as amended, or as soon as practicable thereafter, and to
make subsequent mailings thereof at the Company's request to any persons who
become Holders prior to the Expiration Date and to any persons as may from time
to time be requested by the Company. All mailings pursuant to this Section 1
shall be by first class mail, postage prepaid, unless otherwise specified by the
Company. You shall also accept and comply with telephone requests for
information relating to the Exchange Offer provided that such information shall
relate only to the procedures for tendering Existing Preferred Stock in (or
withdrawing tenders of Existing Preferred Stock from) the Exchange Offer. All
other requests for information relating to the Exchange Offer shall be directed
to the Company, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Vice President-Finance, Fairfield
Manufacturing Company, Inc., ▇.▇. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
telephone (▇▇▇) ▇▇▇-▇▇▇▇, facsimile (▇▇▇) ▇▇▇-▇▇▇▇.
2. In the event that any of the holders does not tender
electronically, you are to examine the Letters of Transmittal and the Existing
Preferred Stock and other documents delivered or mailed to you, by or for the
Holders, prior to the Expiration Date, to ascertain whether (i) the Letters of
Transmittal are properly executed and completed
in accordance with the instructions set forth therein, (ii) the Existing
Preferred Stock is in proper form for transfer and (iii) all other documents
submitted to you are in proper form. In each case where a Letter of Transmittal
or other document has been improperly executed or completed or, for any other
reason, is not in proper form, or some other irregularity exists, you are
authorized to endeavor to take such action as you consider appropriate to notify
the tendering Holder of such irregularity and as to the appropriate means of
resolving the same. Determination of questions as to the proper completion or
execution of the Letters of Transmittal, or as to the proper form for transfer
of the Existing Preferred Stock or as to any other irregularity in connection
with the submission of Letters of Transmittal and/or Existing Preferred Stock
and other documents in connection with the Exchange Offer, shall be made by the
officers of, or counsel for, the Company at their written instructions or oral
direction confirmed by facsimile. Any determination made by the Company on such
questions shall be final and binding.
3. In the event of any extension, termination or amendment of
the Exchange Offer, the Company shall notify the Holders thereof by making a
timely press release to an appropriate news agency or by such other method as
the Company may determine in its sole discretion and, if appropriate, you shall
assist the Company in the delivery of such notice or any related documentation
at the Company's expense. In the event of any such termination, you will
return all tendered Existing Preferred Stock to the persons entitled thereto, at
the request and expense of the Company.
4. Tender of the Existing Preferred Stock may be made only as
set forth in the Letter of Transmittal or by an Agent's Message. Notwithstanding
the foregoing, tenders which the Company shall approve in writing as having been
properly tendered shall be considered to be properly tendered. Letters of
Transmittal and Notices of Guaranteed Delivery shall be recorded by you as to
the date and time of receipt and shall be preserved and retained by you at the
Company's expense for five years. New Preferred Stock is to be issued in
exchange for Existing Preferred Stock pursuant to the Exchange Offer only
against deposit with you prior to the Expiration Date or, in the case of a
tender in
accordance with the guaranteed delivery procedures outlined in Instruction 1 of
the Letter of Transmittal, within three New York Stock Exchange trading days
after the Expiration Date of the Exchange Offer, together with executed Letters
of Transmittal and any other documents required by the Exchange Offer.
You are hereby directed to establish an account with respect
to the Existing Preferred Stock at The Depositary Trust Company (the "Book Entry
Transfer Facility") within two days after the Effective Date of the Exchange
Offer in accordance with SEC Regulation 240.17 Ad. Any financial institution
that is a participant in the Book Entry Transfer Facility system may, until the
Expiration Date, make book-entry delivery of the Existing Preferred Stock by
causing the Book Entry Facility to transfer such share certificates representing
such Existing Preferred Stock into your account in accordance with the procedure
for such transfer established by the Book Entry Transfer Facility. In every
case, however, a Letter of Transmittal (or a manually executed facsimile
thereof), properly completed and duly executed, with any required signature
guarantees and any other required documents must be transmitted to and received
by you prior to the Expiration Date or the guaranteed delivery procedures
described in the Instruction 1 of the Letter of Transmittal must be complied
with.
5. Upon the oral or written request of the Company (with
written confirmation of any such oral request thereafter), you will transmit by
telephone, and promptly thereafter confirm in writing, to (i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
Vice President-Finance, Fairfield Manufacturing Company, Inc., ▇.▇. ▇▇▇▇▇ ▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, telephone (▇▇▇) ▇▇▇-▇▇▇▇, facsimile (765)
474-7248, and (ii) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Debevoise & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, telephone (▇▇▇) ▇▇▇-▇▇▇▇, facsimile (▇▇▇) ▇▇▇-▇▇▇▇ or
such other persons as the Company may reasonably request, the aggregate number
and principal amount of Existing Preferred Stock tendered to you and the number
and principal amount of Existing Preferred Stock properly tendered that day. In
addition, you will also inform the aforementioned persons, upon oral request
made from time to time (with written confirmation of such request
thereafter) prior to the Expiration Date, of such information as they or any of
them may reasonably request.
6. Upon the terms and subject to the conditions of the
Exchange Offer, delivery of shares of New Preferred Stock to be issued in
exchange for accepted shares of Existing Preferred Stock will be made by you
promptly after acceptance of the tendered shares of Existing Preferred Stock.
The Company shall deposit with you a sufficient quantity of shares of New
Preferred Stock in order for you to timely meet the terms and conditions of the
Exchange Offer, and you shall not issue any shares of New Preferred Stock until
you have received a sufficient number of shares of New Preferred Stock to carry
out the requisite deliveries pursuant to the terms of the Exchange Offer. You
will hold all items which are deposited for tender with you after 5:00 p.m., New
York City time, on the Expiration Date pending further instructions from an
officer of the Company.
7. If any Holder shall report to you that his or
her failure to surrender Existing Preferred Stock registered in his or her name
is due to the loss or destruction of a certificate or certificates, you shall
request such Holder (i) to furnish to you an affidavit of loss and, if required
by the Company, a bond of indemnity in an amount and evidenced by such
certificate or certificates of a surety, as may be satisfactory to you and the
Company, and (ii) to execute and deliver an agreement to indemnify the Company
and you in such form as is acceptable to you and the Company. The obligees to be
named in each such indemnity bond shall include the Company and you. You shall
report to the Company the names of all Holders who claim that their Existing
Preferred Stock has been lost or destroyed and the principal amount of such
Existing Preferred Stock.
8. As soon as practicable after the Expiration Date after you
mail or deliver to a Holder the New Preferred Stock that such Holder may be
entitled to receive, you shall arrange for cancellation of the Existing
Preferred Stock submitted to you. Such Existing Preferred Stock shall be
forwarded to United States Trust Company of New York, as Transfer Agent (the
"Transfer Agent"), under the Certificate of Designation dated as of March 7,
1997, governing the Preferred Stock, for cancellation and retirement as you are
instructed by the Company (or a representative designated by the Company) in
writing.
9. For your services as the Exchange Agent
hereunder, the Company shall pay you the amounts set forth
on Exhibit C hereto.
10. You are not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker, dealer, bank or
other person or to engage or utilize any person to solicit tenders.
11. As the Exchange Agent hereunder you:
(a) shall have no duties or obligations
other than those specifically set forth herein or
in the Exhibits attached hereto or as may be
subsequently requested in writing of you by the
Company and agreed to by you in writing with
respect to the Exchange Offer;
(b) will be regarded as making no representations and
having no responsibilities as to the validity, accuracy,
sufficiency, value or genuineness of any Existing Preferred
Stock deposited with you hereunder or any New Preferred Stock,
any Tender Documents or other documents prepared by the
Company in connection with the Exchange Offer, the Prospectus
or any signatures or endorsements other than your own, and
will not be required to make and will not make any
representations as to the validity, sufficiency, value or
genuineness of the Exchange Offer or any other disclosure
materials in connection therewith; provided, however, that in
no way will your general duty to act in good faith be
discharged by the foregoing;
(c) shall not be obligated to take any legal action
hereunder which might in your judgment involve any expense or
liability unless you shall have been furnished with an
indemnity reasonably satisfactory to you;
(d) may rely on, and shall be fully protected and
indemnified as provided in Section 12 hereof in acting upon,
the written or oral instructions with respect to any matter
relating to your acting as Exchange Agent specifically covered
by this Agreement or supplementing or qualifying any such
action of any officer or agent of such other person or persons
as may be designated or whom you reasonably believe have been
designated by the Company;
(e) may consult with counsel satisfactory to
you, including counsel for the Company, and the
advice 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
accordance with such advice of such counsel;
(f) shall not at any time advise any person as to the
wisdom of the Exchange Offer or as to the market value or
decline or appreciation in market value of any Existing
Preferred Stock or New Preferred Stock;
(g) shall not be liable for any action which you may
do or refrain from doing in connection with this Agreement
except for your gross negligence, willful misconduct or bad
faith;
(h) shall have no obligation to make any payment of
any type hereunder unless sufficient funds have been deposited
with you to pay in full all such amounts; and no provision of
this Agreement shall require you to risk your own funds or
otherwise incur any financial liability in the performance of
any of your duties or exercise of your rights hereunder;
(i) are acting in a ministerial capacity as the
Company's agent hereunder and no trust or other fiduciary
relationship shall be established by this Agreement, either
with the Company or any other party; and
(j) may rely upon any statement, consent, agreement
or other instrument not only as to its due execution, its
validity, and the effectiveness of its provisions, but also as
to the truth and accuracy of any information therein, which
you shall in good faith believe to be genuine or to have been
represented or signed by a proper person or persons.
12. The Company covenants and agrees to indemnify and hold
harmless United States Trust Company of New York, and its officers, directors,
employees, agents and affiliates (collectively, the "Indemnified Parties" and
each an "Indemnified Party") against any loss, liability or reasonable expense
of any nature (including reasonable attorneys' and other fees and expenses)
incurred in connection with the administration of the duties of the Indemnified
Parties hereunder in accordance with this Agreement other than losses,
liabilities or expenses arising from the gross negligence or willful misconduct
of the Indemnified Party; provided, further, such Indemnified Party shall use
its best efforts to notify the Company by letter, or by cable, telex or
telecopier confirmed by letter, of the written assertion of a claim against such
Indemnified Party, or of any action commenced against such Indemnified Party,
promptly after but in any event within 10 days of the date such Indemnified
Party shall have received any such written assertion of a claim or shall have
been served with a summons, or other legal process, giving information as to the
nature and basis of the claim; provided, however, that failure to so notify the
Company shall not relieve the Company of any liability which it may otherwise
have hereunder except such liability that is a direct result of such Indemnified
Party's failure to so notify the Company. The Company shall be entitled to
participate at its own expense in the defense of any such claim or legal action
and if the Company so elects or if the Indemnified Party in such notice to the
Company so directs, the Company shall assume the defense of any suit brought to
enforce any such claim. In the event the Company assumes such defense, the
Company shall not be liable for any fees and expenses thereafter incurred by
such Indemnified Party, except for any reasonable fees and expenses of such
Indemnified Party incurred as a result of the need to have separate
representation because of a conflict of interest between such Indemnified Party
and the Company. You shall not enter into a settlement or other compromise with
respect to any indemnified loss, liability or expense without the prior written
consent of the Company, which shall not be unreasonably withheld or delayed if
not adverse to the Company's interests.
13. This Agreement and your appointment as the Exchange Agent
shall be construed and enforced in accordance with the laws of the State of New
York without regard to the conflicts of laws provisions thereof, and shall inure
to the benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of the parties hereto. No other person shall acquire or
have any rights under or by virtue of this Agreement.
14. The parties hereto hereby irrevocably submit to the venue
and jurisdiction of any New York State or Federal court sitting in the Borough
of Manhattan in New York City in any action or proceeding arising out of or
relating to this Agreement, and the parties hereby irrevocably agree that all
claims in respect of such action or proceeding arising out of or relating to
this Agreement, shall be heard and determined in such a New York State or
federal court. The parties hereby consent to and grant to any such court
jurisdiction over the persons of such parties and over the subject matter of any
such dispute and agree that delivery or mailing of any process or other papers
in the manner provided herein, or in such other manner as may be permitted by
law, shall be valid and sufficient service thereof.
15. This Agreement may not be modified, amended or
supplemented without an express written agreement executed by the parties
hereto. Any inconsistency between this Agreement and the Tender Documents, as
they may from time to time be supplemented or amended, shall be resolved in
favor of the latter, except with respect to the duties, liabilities and
indemnification of you as Exchange Agent.
16. This Agreement may be executed in one 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.
17. 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.
18. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration Date. Notwithstanding
the foregoing, Sections 9 and 12 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly deliver to
the Transfer Agent any certificates for Existing Preferred Stock or New
Preferred Stock, funds or property then held by you as Exchange Agent under this
Agreement.
19. All notices and communications hereunder shall be in
writing and shall be deemed to be duly given if delivered or mailed first-class
certified or registered mail, postage prepaid, or telecopied as follows:
If to the Company: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
Vice President-Finance
Fairfield Manufacturing Company,
Inc.
▇.▇. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Debevoise & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to you: United States Trust
Company of New York,
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address or telecopy number as any of the above may have furnished
to the other parties in writing for such purpose.
20. This Letter Agreement and all of the
obligations hereunder shall be assumed by any and all successors and assigns
of the Company.
21. This Agreement and the other agreements, documents and
exhibits referred to herein constitute the entire agreement between the parties
pertaining to the subject matter hereof and supersede all prior and
contemporaneous agreements and undertakings of the parties in connection
herewith.
If the foregoing is in accordance with your understanding,
would you please indicate your agreement by signing and returning the enclosed
copy of this Agreement to the Company.
Very truly yours,
FAIRFIELD MANUFACTURING
COMPANY, INC.
By:
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Name:
Title:
Agreed to this ____ day of ________, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ TRUST COMPANY OF NEW YORK
By:
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Name:
Title:
