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Exhibit 99.3
EXCHANGE AGENCY AGREEMENT
as of November 7, 0000
Xxxxx Xxxxxx Bank and Trust Company
Corporate Trust Xxxxxxxxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Ladies and Gentlemen:
High Voltage Engineering Corporation, a Delaware corporation (the
"Company"), intends to make an offer (the "Exchange Offer") to exchange its 10
1/2% Senior Notes due 2004 (the "New Notes"), which have been registered under
the Securities Act of 1933, as amended (the "Securities Act"), pursuant to a
Registration Statement of which the Prospectus is a part, for a like principal
amount of its issued and outstanding 10 1/2% Senior Notes due 2004 (the
"Existing Notes"). The terms and conditions of the Exchange Offer as currently
contemplated are set forth in a prospectus, dated _________ __, 1997 (the
"Prospectus"), distributed to all holders of the Existing Notes. The Existing
Notes and the New Notes are collectively referred to herein as the "Notes."
The Company hereby appoints State Street Bank and Trust Company ("SSB")
to act as exchange agent (the "Exchange Agent") in connection with the Exchange
Offer. References hereinafter to "you" shall refer to SSB.
The Exchange Offer is expected to be commenced by the Company on or about
the date of Prospectus. The Letter of Transmittal accompanying the Prospectus is
to be used by the holders of the Existing Notes to accept the Exchange Offer,
and contains instructions with respect to the delivery of certificates
representing the Existing Notes tendered.
In the event any holder of the Existing Notes is tendering by book-entry
transfer to the Exchange Agent's account at The Depository Trust Company
("DTC"), such holder may tender through the DTC Automated Tender Offer Program
("ATOP"). DTC participants will transmit their acceptance of the Exchange Offer
to DTC, which will verify the acceptance and execute a book-entry delivery to
your account at DTC. DTC will then send an "Exchange Agent's Message" to you for
acceptance.
The Exchange Offer shall expire at 5:00 P.M., Boston time, on the 30th
day after the effective date of the Registration Statement of which the
Prospectus is a part, 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 written notice to you before 5:00 P.M., Boston time, on the previously
scheduled Expiration Date.
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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 "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 are to examine each of the Letters of Transmittal and original
Existing Notes and any other documents delivered or mailed to you by or for
holders of the Existing Notes to ascertain whether: (i) the Letters of
Transmittal and any such other documents are duly executed and properly
completed in accordance with the instructions set forth therein and (ii) the
Existing 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 any of the Existing 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 promptly to inform the presenters of the need for
fulfillment of all requirements and promptly to take any other action as may be
necessary or advisable to cause such irregularity to be corrected, and you will
promptly notify the Company thereof.
3. With the approval of any of the Treasurer, any Assistant
Treasurer, the Chief Executive Officer, the President, any Vice President or
the Clerk (each, a "DESIGNATED OFFICER") of the Company, or of counsel to the
Company (such approval, if given orally, to be confirmed in writing) or any
other party designated by such a Designated Officer, you are authorized to waive
any irregularities in connection with any tender of Existing Notes pursuant to
the Exchange Offer.
4. Tenders of Existing Notes may be made only as set forth in the
Letter of Transmittal and in the section of the Prospectus captioned "Exchange
Offer--Procedures for Tendering Notes," and Existing 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 4, Existing Notes that a
Designated Officer of the Company shall approve as having been properly tendered
shall be considered to be properly tendered.
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5. You shall advise the Company with respect to any Existing Notes
received subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Existing Notes.
6. You shall accept tenders:
(a) in cases where the Existing 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 Existing
Notes provided that customary transfer requirements, including payment of
any applicable transfer taxes, have been satisfied.
You shall accept partial tenders of Existing Notes where so indicated and
as permitted in the Letter of Transmittal and deliver notes representing the
principal amount tendered to the transfer agent or split-up and return any
untendered principal amount to the holder (or such person as may be designated
in the Letter of Transmittal) as promptly as practicable.
7. The Company will exchange Existing Notes duly tendered for New
Notes on the terms and subject to the conditions set forth in the Prospectus and
the Letter of Transmittal. Delivery of Existing Notes will be made on behalf of
the Company at the rate of one dollar of principal amount of New Notes for each
one dollar of principal amount of Existing Notes tendered as soon as practicable
after notice (such notice if given orally, to be confirmed in writing) of
acceptance of said principal amount of Existing Notes by the Company, provided,
however, that in all cases, Existing Notes tendered pursuant to the Exchange
Offer will be exchanged only after timely receipt by you of the original
Existing Notes representing such principal amount, a properly completed and duly
executed Letter of Transmittal (or facsimile thereof) with any required
signature guarantees and any other required documents.
8. 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, Existing Notes tendered
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pursuant to the Exchange Offer may be withdrawn at any time prior to the
Expiration Date.
9. The Company shall not be required to exchange any Existing 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 Existing Notes
tendered shall be given (and confirmed in writing) by the Company to you.
10. If, pursuant to the Exchange Offer, the Company does not accept
for exchange all or part of the Existing Notes tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus under
the caption "The Exchange Offer -- Certain Conditions to the Exchange Offer" or
otherwise, you shall as soon as practicable after the expiration or termination
of the Exchange Offer return those certificates representing unaccepted Existing
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.
11. All certificates representing reissued Existing Notes, unaccepted
Existing Notes or New Notes shall be forwarded by (a) first-class certified
mail, return receipt requested under a blanket surety bond protecting you and
the Company from loss or liability arising out of the non-receipt or
non-delivery of such certificates or (b) by registered mail insured separately
for the replacement value of each of such certificates.
12. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
13. As Exchange Agent hereunder you:
(a) shall have not 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 representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of
any of the Existing Notes represented thereby deposited with you pursuant
to the Exchange Offer, provided, however, that in no way will your
general duty to act in good faith be discharged by the foregoing:
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(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 to be genuine and to have been signed by the proper party
or parties:
(e) may reasonably act upon any tender, statement, request,
comment, agreement or other instrument whatsoever not only as to its due
execution and validity and effectiveness of its provisions, but also as
to the truth and accuracy of any information contained therein, which you
shall in good faith 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 Designated 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 independent 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) shall not advise any person tendering Existing 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
Existing Notes.
14. You shall take such action as may from time to time be requested
by the Company (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 of 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
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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.
15. You shall advise by cable, telex, facsimile transmission or
telephone, and promptly thereafter confirm in writing to the Company and such
other person or persons as it 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 total principal amount of Existing
Notes 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.
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 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 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 Existing
Notes tendered, the aggregate principal amount of Existing Notes accepted and
deliver said list to the Company.
16. Letters of Transmittal and Notices of Guaranteed Delivery shall be
stamped by you as to the date and 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.
17. 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 your or for compensation owed to you hereunder.
18. For services tendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on Schedule I attached hereto.
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19. 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.
20. The Company covenants and agrees to indemnify and hold you in your
capacity as Exchange Agent hereunder harmless against any loss, liability, cost
or expense, including reasonable attorneys' fees arising out of or in connection
with 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 Existing 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 Existing Notes; provided, however, that the Company shall
not be liable for indemnification or otherwise for any loss, liability, cost or
expense to the extend arising out of your gross negligence, willful misconduct
or bad faith. 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 be telex 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 shall have been served
with a summons in connection therewith.
In addition, the Company shall not be liable for any loss, liability,
cost or expense resulting from a settlement entered into without its consent.
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, 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.
21. The Company hereby agrees to assume any and all obligations
imposed now or hereafter by any applicable tax law with respect to your duties
hereunder (other than income tax obligations in
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respect of income earned by you). The Company hereby undertakes to instruct you
in writing with respect to any responsibility you may have for withholding and
other taxes, assessments or other governmental charges, certifications and
governmental reporting in connection with your duties under this Agreement. The
Company hereby agrees to indemnify and hold you harmless from any liability on
account of taxes, assessments for late payment or other governmental charges or
any other loss, costs or expenses (including reasonable legal fees and expenses)
that may be assessed against you as a result of your duties hereunder, including
without limitation any liability for the withholding or deduction or the failure
to withhold or deduct taxes, and any liability for failure to obtain proper
certifications or to properly report to governmental authorities.
22. The Company shall reimburse you for the amount of any and all
transfer taxes payable in respect of the exchange of Existing 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.
23. This Agreement and your appointment as Exchange Agent hereunder
shall be construed and enforced in accordance with the laws of the Commonwealth
of Massachusetts applicable to agreements made and to be performed entirely
within such state, and shall inure to the benefit of, and the obligations
created hereby shall be binding upon, the successors and assigns of each of the
parties hereto. This Agreement may not be modified orally.
24. 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.
25. In case any provisions 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.
26. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in party, except by a
written instrument signed by a duly authorized representative of the party to be
charged.
27. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including telecopy or
similar writing) and shall be given to such party, addressed to it, at its
address or telecopy number set forth below:
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If to the Company:
High Voltage Engineering Corporation
000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000-0000
Phone: 000-000-0000
Telecopier: 000-000-0000
If to the Exchange Agent:
State Street Bank and Trust Company
Corporate Trust Division
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Phone: (000) 000-0000
Telecopier: (000) 000-0000
28. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Upon any termination of
this Agreement, you shall promptly deliver to the Company any certificates,
funds or property then held by you as Exchange Agent under this Agreement.
29. This Agreement shall be binding and effective as of the date
hereof.
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Please acknowledge receipt of this Agreement and confirm the arrangement
herein provided by signing and returning the enclosed copy.
HIGH VOLTAGE ENGINEERING CORPORATION
By:
--------------------------------------------
Name:
Title:
Accepted as of the date first above written.
STATE STREET BANK AND TRUST COMPANY
By:
--------------------------------------------
Name:
Title:
Attested By:
Name:
Title:
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Schedule I
FEE SCHEDULE
Pursuant to Paragraph eighteen of the Exchange Agency Agreement, the fee
for the Agent is $_____ plus out-of-pocket expenses.
