EXHIBIT 99.3
EXCHANGE AGENT AGREEMENT
_______________ __, 199_
EXCHANGE AGENT AGREEMENT
American Stock Transfer and Trust Company
Trust Department
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Thermwood Corporation, an Indiana corporation (the "Company"), proposes
to make an offer (the "Exchange Offer") to the holders (the "Shareholders") of
its shares of Common Stock, no par value (the "Shares"), to exchange
Shareholders' Shares for 12% Subordinated Debentures due 2014 (the
"Debentures"), which Debentures have been registered under the Securities Act of
1933.
The terms and conditions of the Exchange Offer as currently
contemplated are set forth in a Prospectus (the "Prospectus") dated __________
__, 199_, distributed to record holders of the Shares on or about such date.
Capitalized terms used herein and not otherwise defined shall have the meanings
assigned to them in the Prospectus.
The Company hereby appoints American Stock Transfer and Trust Company
to act as exchange agent (the "Exchange Agent") in connection with the Exchange
Offer. References hereinafter to "you" shall refer to American Stock Transfer
and Trust Company.
The Exchange Offer is expected to be commenced by the Company on or
about January _, 1999. The Letter of Transmittal accompanying the Prospectus is
to be used by the holders of the Shares to accept the Exchange Offer and
contains certain instructions with respect to (i) the delivery of certificates
for Shares tendered in connection therewith, (ii) the book entry transfer of
Shares to the Exchange Agent's account at The Depository Trust Company (the
"Book-Entry Transfer Facility"), and (iii) other matters relating to the
Exchange Offer.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on
__________ __, 1999 or on such later date or time to which the Company may
extend the Exchange Offer (the "Expiration Date"). Subject to the terms and
conditions set forth in the Prospectus, the Company expressly reserves the right
to extend the Exchange Offer from time to time by giving oral (to be confirmed
in writing) or written notice to you no later than 1:00 p.m., New York City
time, on the business day following the
previously scheduled Expiration Date.
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The Company expressly reserves the right to amend or terminate the
Exchange Offer, and not to accept for exchange any Shares not theretofore
accepted for exchange, upon the occurrence of any failure of the conditions of
the Exchange Offer specified in the Prospectus. The Company will give oral (to
be confirmed in writing) or written notice of any amendment, termination or
nonacceptance of Shares 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 herein and in the Letter of Transmittal.
2. You will establish an account with respect to the Shares at the
Book-Entry Transfer Facility for purposes of the Exchange Offer within two
business days after the date of this Agreement, and any financial institution
that is a participant in the Book-Entry Transfer Facility's systems may make
book-entry delivery of the Shares by causing the Book-Entry Transfer Facility to
transfer such Shares into your account in accordance with the Book-Entry
Transfer Facility's procedure for such transfer. You are not required to collect
Letters of Transmittal from persons tendering Notes through the Book-Entry
Transfer Facility.
3. You are to examine each of the Letters of Transmittal, certificates
for Shares (or confirmations of book-entry transfers into your account at the
Book-Entry Transfer Facility) and any Agent's Message or other documents
delivered or mailed to you by or for holders of the Shares to ascertain whether
(i) the Letters of Transmittal and any such other documents are executed and
properly completed in accordance with instructions set forth therein and (ii)
the Shares have otherwise been properly tendered. In each case where the Letter
of Transmittal or any other document has been improperly completed or executed
or any of the certificates for Shares 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 Xxxxxxx X. Xxxxxxxx or any other person
designated in writing by the Company (a "Designated Officer") (such approval, if
given orally, to be confirmed in writing) or any other party designated by any
such Designated Officer in writing, you are authorized to waive any
irregularities in connection with any tender of Shares pursuant to the Exchange
Offer.
5. Tenders of Shares 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 Shares 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, Shares that the Designated
Officer 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 Shares delivered
subsequent to the Expiration Date and accept the Company's instructions (if
given orally, to be confirmed in writing) with respect to the disposition of
such Shares.
7. You shall accept tenders:
(a) in cases where the Shares 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 such person's authority to so act is submitted; and
(c) from persons other than the registered holder of Shares provided
that customary transfer requirements, including payment of any applicable
transfer taxes, are fulfilled.
You shall accept partial tenders of Shares where so indicated and as
permitted in the Letter of Transmittal and deliver certificates for Shares to
the Transfer Agent for split-up and return any untendered Shares to the holder
(or to 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 the conditions to the Exchange
Offer, the Company will notify you (such notice, if given orally, to be
confirmed in writing) of the Company's acceptance, promptly after the Expiration
Date, of all Shares properly tendered and you, on behalf of the Company, will
exchange such Shares for Debentures and will deliver such Shares as directed by
the Company. Delivery of Debentures will be made on behalf of the Company by you
at the rate of $11.00 principal amount of Debentures for each Share tendered
promptly after notice (such notices, if given orally, to be confirmed in
writing) of acceptance of said Shares by the Company; provided, however, that in
all cases Shares tendered pursuant to the Exchange Offer will be exchanged only
after timely receipt by you of certificates for such Shares (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 (or an Agent's Message in lieu
thereof) and any other required documents. You shall issue Debentures only in
denominations of $11.00 or in any integral multiple in excess 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, Shares tendered pursuant to the Exchange Offer may be
withdrawn at any time on or prior to the Expiration Date.
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10. The Company shall not be required to exchange any Shares 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 Shares tendered shall be given
(such notice, if given orally, shall be 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 Shares 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 Shares (or effect the appropriate
book-entry transfer of the unaccepted Shares), together with any related
required documents and the Letter of Transmittal relating thereto that are in
your possession, to the persons who deposited them.
12. All certificates for reissued Shares, unaccepted Shares or
Debentures shall be forwarded at the Company's expense by (a) first-class mail,
return receipt requested, under a blanket surety bond protecting you and the
Company from loss or liability arising out of the nonreceipt or nondelivery of
such certificates or (b) registered mail insured 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 solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders, except as we may direct.
14. 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 certificates or the Shares 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, sufficiency, value or genuineness of the
Exchange Offer including without limitation the Prospectus, the Letter of
Transmittal or the instructions related thereto;
(b) shall not be obligated to take any action hereunder that might in
your reasonable judgment involve any expense or liability, unless you shall have
been furnished with reasonable indemnity satisfactory to you;
(c) may conclusively rely on and shall be fully 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 conclusively act upon any tender, statement, request, 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 that you shall in good faith reasonably believe to
be genuine or to have been signed or represented by a proper person or
persons;
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(e) may conclusively rely on and shall be fully protected in acting
upon written or oral instructions from any Designated Officer of the Company
with respect to the Exchange Offer;
(f) shall not advise any person tendering Shares 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 Shares; and
(g) may consult with your counsel with respect to any questions
relating to your duties and responsibilities, and the advice or written 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 accordance with such advice or written opinion of such counsel.
15. You shall take such action as may from time to time be requested by
any Designated Officer of the Company (and such other action as you may
reasonably deem appropriate) to furnish copies of the Prospectus, the Letter of
Transmittal and the Notice of Guaranteed Delivery, 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 shall furnish you with copies of such documents at your request.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to Xxxxxxx X. Xxxxxxxx, President, and
such other person or persons as the Company may request, daily (and more
frequently during the week immediately preceding the Expiration Date, if
reasonably requested) up to and including the Expiration Date, as to the number
of Shares that have been tendered pursuant to the Exchange Offer and the items
received by you pursuant to this Agreement, separately reporting and giving
cumulative totals as to items properly received and items improperly received
and items covered by Notices of Guaranteed Delivery. In addition, you will also
inform, and cooperate in making available to, the Company or any such other
person or persons as the Company reasonably requests from time to time prior to
the Expiration Date of such other information as they or such person or persons
reasonably request. Such cooperation shall include, without limitation, the
granting by you to the Company and such person or persons as the Company may
reasonably 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.
17. Letters of Transmittal and Notices of Guaranteed Delivery shall be
stamped by you as to the date and the time of receipt thereof and shall be
preserved by you for a period of time at least equal to the period of time you
preserve other records pertaining to the transfer of securities. You shall
dispose of unused Letters of Transmittal and other surplus materials by
returning them to the Company at the address set forth below for notices.
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18. For services rendered as Exchange Agent hereunder, you shall be
entitled to compensation of ____________ Dollars ($_______) and reimbursement of
reasonable out-of-pocket expenses incurred in connection with the Exchange
Offer.
19. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal and further acknowledge that you have examined each of them to the
extent necessary to perform your duties hereunder. 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
rights, duties, liabilities and indemnification of you as Exchange Agent, which
shall be controlled by this Agreement.
20. (a) The Company agrees to indemnify and hold you harmless in your
capacity as Exchange Agent hereunder against any liability, cost, tax (other
than any income tax), claim or expense, including reasonable attorneys' fees and
disbursements, arising out of or in connection with any action taken or omitted
to be taken by the Exchange Agent in connection with its acceptance or
performance of it duties under the Agreement and the documents related thereto,
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 Shares 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 Shares; 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 negligence, willful breach of this
Agreement, willful misconduct or bad faith. You shall notify the Company in
writing of the assertion of any claim against you; provided however, that your
failure so to notify shall not excuse the Company from its obligations hereunder
except to the extent such failure to notify shall prejudice or cause damage to
the Company. 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,
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, it 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. You shall not compromise or settle any
such action or claim without the consent of the Company, provided that the
Company shall not be entitled to assume the defense of any action if
representation of the parties by the same legal counsel would, in the reasonable
opinion of counsel for the Exchange Agent, be inappropriate due to actual or
potential conflicting interests between the parties. This indemnification shall
survive the release, discharge, termination and/or satisfaction of this
Agreement.
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(b) You agree that, without the prior written consent of the Company
(which consent shall not be unreasonably withheld), you will not settle,
compromise or consent to the entry of judgment in any pending or threatened
claim, action, or proceeding in respect of which indemnification could be sought
in accordance with the indemnification provisions of this Agreement (whether or
not you or the Company or any of its controlling persons is an actual or
potential party to such claim, action or proceeding), unless such settlement,
compromise or consent includes an unconditional release of the Company and
controlling persons from all liability arising out of such claim, action or
proceeding.
21. This Agreement and your appointment as Exchange Agent hereunder
shall be construed and enforced in accordance with the laws of the State of New
York applicable to agreements made and to be performed entirely within such
state, and without regard to conflicts of law principles, and shall inure to the
benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto.
22. All communications, including notices, required or permitted to be
given hereunder shall be in writing and shall be deemed to have been duly given
if (i) delivered personally with receipt acknowledged, (ii) sent by registered
or certified mail, return receipt requested, (iii) transmitted by facsimile
(which shall be confirmed by telephone and by a writing sent by registered or
certified mail on the business day that such facsimile is sent), or (iv) sent by
recognized overnight courier for next business day delivery, addressed to the
parties at the addresses or facsimile numbers as any party shall hereafter
specify by communication to the other parties in the manner provided herein:
If to the Company:
THERMWOOD CORPORATION
Xxx Xxxxxxxxxxxx Xxxx
X.X. Xxx 000
Xxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxx
Chairman of the Board and President
with a copy to:
Xxxxx X. Xxxxxx, Esquire
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
Fax No. (000) 000-0000
If to the Exchange Agent:
American Stock Transfer and Trust Company
Trust Department
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No. (000) 000-0000
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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. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, paragraph 18 and 20 and any outstanding obligation of the Exchange
Agent shall survive the termination of this Agreement.
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
THERMWOOD CORPORATION
By: ________________________________
Xxxxxxx X. Xxxxxxxx
Chairman of the Board and President
Accepted as of the date first above written:
American Stock Transfer and Trust, as Exchange Agent
By: ___________________________
Name:
Title:
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