EXHIBIT 99.4
, 2002
EXCHANGE AGENT AGREEMENT
HSBC Bank USA
Issuer Services
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Ladies and Gentlemen:
Tekni-Plex, Inc., a Delaware corporation (the "COMPANY"), proposes to make
an offer (the "EXCHANGE OFFER") to exchange up to $40,000,000 principal amount
of its 12.75% Series B Senior Subordinated Notes due 2010 (the "NEW NOTES"), for
a like principal amount of its respective outstanding 12.75% Senior Subordinated
Notes due 2010 (the "OLD 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- ), as it may be amended
from time to time (the "REGISTRATION STATEMENT"), filed with the Securities and
Exchange Commission (the "SEC"), and proposed to be distributed to all record
holders of the Old Notes. The Old Notes and the New 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 or
accompanying Letter of Transmittal.
The Company hereby appoints HSBC Bank USA to act as exchange agent (the
"EXCHANGE AGENT") in connection with the Exchange Offer. References hereinafter
to "YOU" shall refer to HSBC Bank USA.
The Exchange Offer is expected to be commenced by the Company on or about
, 2002. The Letter of Transmittal accompanying the Prospectus (or in
the case of book entry-securities, either the Letter of Transmittal or the
Automated Tender Offer Program ("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.
The Exchange Offer shall expire at 5:00 P.M., New York City time, on
, 2002, 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 Old 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 promptly establish an account with respect to the Old
Notes at The Depository Trust Company ("DTC") for purposes of the Exchange
Offer, and any financial institution that is a participant in DTC's systems
may, until the Expiration Date, make book-entry delivery of the Old Notes
by causing
DTC to transfer such Old Notes into your account in accordance with DTC's
procedures for such transfer. In every case, however, a Letter of
Transmittal (or a manually executed facsimile thereof) or an agent's
message, 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 Exchange Offer must be complied with.
3. You are to examine each of the Letters of Transmittal and
certificates for Old Notes (and confirmation of book-entry transfers of Old
Notes into your account at DTC) and any other documents delivered or mailed
to you by or for holders of the Old 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, (ii) the Old
Notes have otherwise been properly tendered, (iii) the Old Notes tendered
in part are tendered in principal amounts of $1,000 and integral multiples
of $1,000 in excess thereof and that if any Old Notes are tendered for
exchange in part, the untendered principal amount thereof is $100,000 or
any integral multiple of $1,000 in excess thereof, and (iv) holders have
provided their Tax Identification Number or required certification. 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 Old 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 President, any Vice President, the
Secretary or any Assistant Secretary of the Company (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 tender of Old Notes pursuant to the Exchange Offer.
5. At the written request of the Company or its counsel, you shall
notify tendering holders of Old Notes in the event of any extension,
termination or amendment of the Exchange Offer. In the event of any such
termination, you will return all tendered Old Notes to the persons entitled
thereto, at the request and expense of the Company.
6. 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," 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 6, Old Notes which the
President, any Vice President, the Secretary or any Assistant Secretary of
the Company or any other person 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).
New Notes are to be issued in exchange for Old Notes pursuant to the
Exchange Offer only (i) 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 or (ii) in the event that the
holder is a participant in DTC's system, by the utilization of DTC's ATOP
and any evidence required by the Exchange Offer.
7. 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.
8. You shall accept tenders:
(a) in cases where the Old Notes are registered in two or more
names only if signed by all named holders;
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(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 those regarding
any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Notes when so indicated and as
permitted in the Letter of Transmittal and deliver certificates for Old
Notes to the Security Registrar 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 promptly as practicable after expiration or
termination of the Exchange Offer.
9. 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 Old Notes properly tendered and you, on behalf of
the Company, will exchange such Old Notes for New Notes and cause such Old
Notes to be canceled. Delivery of New Notes will be made on behalf of the
Company by you at the rate of $1,000 principal amount of New Notes for each
$1,000 principal amount of the 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; provided, however, that in all cases, Old
Notes tendered pursuant to the 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 DTC), 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 New Notes only in denominations of $1,000 or any
integral multiple thereof.
10. 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 on or prior to the
Expiration Date in accordance with the terms of the Exchange Offer.
11. The Company shall not be required to exchange any Old Notes
tendered if any of the conditions set forth in the Exchange Offer is not
met. Notice of any decision by the Company not to exchange any Old Notes
tendered shall be given (and confirmed in writing) by the Company to you.
12. 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
or otherwise, you shall as soon as practicable after the 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, to the persons who deposited them (or effected
such book-entry transfer).
13. All certificates for reissued Old Notes, unaccepted Old Notes or
for New 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 certificate.
14. As soon as practicable after the Expiration Date, you shall
arrange for cancellation of the Old Notes submitted to you or returned by
DTC in connection with ATOP. Such Old Notes shall be cancelled and retired
by you as you are instructed by the Company (or a representative designated
by the Company) in writing.
15. 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.
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16. 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 Old 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) 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 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) shall not advise any person tendering Old Notes pursuant to the
Exchange Offer as to whether to tender or refrain from tendering all or
any portion of Old Notes or as to the market value, decline or
appreciation in market value of any Old Notes that may or may not occur
as a result of the Exchange Offer or as to the market value of the New
Notes;
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.
17. 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.
18. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to Dr. F. ▇▇▇▇▇▇▇ ▇▇▇▇▇, Chief
Executive Officer, of the Company (telephone number (▇▇▇) ▇▇▇-▇▇▇▇,
facsimile number (▇▇▇) ▇▇▇-▇▇▇▇) 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 and aggregate principal
amount of Old 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
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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, including the identity of the holders of Old Notes who have not
tendered such Old Notes as of the date such request was made. You shall
prepare a final list of all persons whose tenders were accepted, the number
and aggregate principal amount of Old Notes tendered, the number and
aggregate principal amount of Old Notes accepted and the identity of any
Participating Broker-Dealers (as defined in the Letter of Transmittal) and
the number and aggregate principal amount of New Notes delivered to each,
and deliver said list to the Company.
19. 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, upon
consultation with the Company, in accordance with your customary
procedures.
20. 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, credit or other agreement with you or for compensation owed to
you hereunder or under any other agreement.
21. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on the Schedule attached hereto.
22. 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.
23. 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 reasonable 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 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. 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.
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24. 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.
25. You shall notify the Company of the amount of any transfer taxes
payable in respect of the exchange of Old 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 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; 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.
26. 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.
27. This Agreement shall be binding upon and inure solely to the
benefit of each party hereto, and its successor and assigns, 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 Old Notes or New Notes
shall have any right, benefit or remedy of any nature whatsoever under or
by reason of this Agreement.
28. 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.
29. 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.
30. 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.
31. 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:
Tekni-Plex, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Dr. F. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Chief Executive Officer
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
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If to the Exchange Agent, to:
HSBC Bank USA
Issuer Services
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
32. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, paragraphs 19, 21, 23 and 25 shall survive the termination of
this Agreement. Upon any termination of this Agreement, you shall promptly
deliver to the Company any certificates for New Notes, funds or property
then held by you as Exchange Agent under this Agreement.
33. 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.
TEKNI-PLEX, INC.
By:
------------------------------------
Name:
Title:
Accepted as of the date
first above written:
HSBC BANK USA,
as Exchange Agent
By:
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Name:
Title:
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EXHIBIT A
SCHEDULE OF FEES
FOR SERVICES AS
EXCHANGE AGENT
TEKNI-PLEX, INC. 12 3/4% SENIOR SUBORDINATED NOTES DUE 2010
EXCHANGE AGENT FEE ......................................... $
This one-time fee covers the acceptance of our appointment as Exchange
Agent, review and consideration of the
Exchange Agent Agreement and all
supporting documents consultations with attorneys, and establishment of
procedures to perform the services required by the Agreement.
The fees quoted above by HSBC Bank USA are subject to our review of the
governing documents to the transaction. These fees do not include reimbursement
for out-of-pocket expenses which will be in addition to the fees quoted and will
be charged to you at cost. Out-of-pocket expenses that are to be reimbursed to
the bank include (but are not limited to) postage, overnight mail, telephone,
facsimile charges, stationery, accountants' fees and/or counsel fees (and their
expenses). If the above-referenced transaction should fail to be brought to a
successful conclusion, the bank reserves the right to charge our acceptance fee,
plus any out-of-pocket expenses that have been incurred. Please note that the
above fees are the bank's routine fees and, as such, do not include fees for
extraordinary services for non-routine services or default administration for
which other fees will be imposed upon appraisal by the bank's Corporate Trust
Services department. The bank reserves the right to amend this fee proposal upon
final review of the governing documents or to withdraw its offer to provide
Corporate Trust services prior to execution of the governing documents.
