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EXHIBIT 99.3
EXCHANGE AGENCY AGREEMENT
[date]
Wilmington Trust Company
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Attention: Corporate Trust Administration
Re: CNBF Capital Trust I
Ladies and Gentlemen:
CNB Financial Corp., a New York corporation, as Depositor (the "Company"),
and CNBF Capital Trust I, a Delaware business trust (the "Trust"), hereby
appoint Wilmington Trust Company ("Wilmington Trust") to act as exchange agent
(the "Exchange Agent") in connection with an exchange offer by the Company and
the Trust to exchange up to $18,000,000 aggregate liquidation amount Series B
Floating Rate Capital Securities of the Trust ("Exchange Capital Securities")
for a smilar amount of outstanding Series A Floating Rate Capital Securities of
the Trust ("Original Capital Securities"). The terms and conditions of the
exchange offer are set forth in a Prospectus, dated________ , ___ (as the same
may be amended or supplemented from time to time, the "Prospectus"), and in the
related Letter of Transmittal, which together constitute the "Exchange Offer."
The registered holders of the Capital Securities are hereinafter referred to as
the "Holders." Capitalized terms used herein and not defined shall have the
respective meanings described thereto in the Prospectus.
On the basis of the representations, warranties and agreements of the
Company, the Trust and Wilmington Trust contained herein and subject to the
terms and conditions hereof, the following sets forth the agreement among the
Company, the Trust and Wilmington Trust as Exchange Agent for the Exchange
Offer:
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1. APPOINTMENT AND DUTIES AS EXCHANGE AGENT.
1.1. The Company and the Trust hereby authorize Wilmington Trust to act as
Exchange Agent in connection with the Exchange Offer and Wilmington Trust agrees
to act as Exchange Agent in connection with the Exchange Offer. As Exchange
Agent, Wilmington Trust will perform those services as are outlined herein,
including, but not limited to, accepting tenders of Original Capital Securities,
and communicating generally regarding the Exchange Offer with brokers, dealers,
commercial banks, trust companies and other persons, including Holders of the
Original Capital Securities.
1.2. The Company and the Trust acknowledge and agree that Wilmington Trust
has been retained pursuant to this Agreement to act solely as Exchange Agent in
connection with the Exchange Offer, and in such capacity, Wilmington Trust shall
perform such duties in good faith as are outlined herein.
1.3. Exchange Agent will examine each of the Letters of Transmittal and
certificates for Original Capital Securities and any other documents delivered
or mailed to Exchange Agent by or for Holders of the Original Capital
Securities, and any book entry confirmations received by Exchange Agent with
respect to the Original Capital Securities, 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
that such book entry confirmations are in due and proper form and contain the
information required to be set forth therein, (ii) the Original Capital
Securities have otherwise been properly tendered, (iii) Original Capital
Securities tendered in part are tendered in Liquidation Amounts of $100,000 (100
Capital Securities) and integral multiples of $1,000 in excess thereof and that
if any Original Capital Securities are tendered for exchange in part, the
untendered Liquidation Amount thereof is $100,000 (100 Capital Securities) or
any integral multiple of $1,000 in excess thereof, and (iv) Holders have
provided their correct Tax Identification Number or required certification.
Determination of all questions as to validity, form, eligibility and acceptance
for exchange of any Original Capital Securities shall be made by the Company and
the Trust, which determination shall be final and binding. In each case where
the Letters of Transmittal or any other documents have been improperly completed
or executed of where book-entry conformations are not in due and proper form or
omit certain information, or any of the certificates for Original Capital
Securities are not in proper form for transfer or some other irregularity in
connection with the tender or acceptance of the Original Capital Securities
exists, Exchange Agent will endeavor, upon request of the Company or the Trust,
to advise the tendering Holders of the irregularity and to take any other action
as the Company or the Trust may request to cause such irregularity to be
corrected. Notwithstanding the above, Exchange Agent shall not be under any duty
to give any notification of any irregularities in tenders or incur any liability
for failure to give any such notification.
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1.4. With the approval of the Trust and the President, any Senior Vice
President, any Executive Vice President, any Vice President or the Treasurer or
any Assistant Treasurer of the Company, (such approval, if given orally, to be
confirmed in writing) or any other party designated by any such officer,
Exchange Agent is authorized to waive any irregularities in connection with any
tender of Original Capital Securities pursuant to the Exchange Offer.
1.5. Tenders of Original Capital Securities may be made only as set forth
in the Letter of Transmittal and in the section of the Prospectus captioned "The
Exchange Offer" and Original Capital Securities shall be considered properly
tendered only when tendered in accordance with such procedures set forth
therein. Notwithstanding the provisions of this paragraph, Original Capital
Securities which the Trust and the President, any Senior Vice President, any
Executive Vice President, any Vice President or the Treasurer, any Assistant
Treasurer or any other designated officer of the Company, shall approve (such
approval, if given orally, to be confirmed in writing) as having been properly
tendered shall be considered to be properly tendered.
1.6. Exchange Agent shall advise the Company and the Trust with respect to
any Original Capital Securities received as soon as possible after 5:00 p.m.,
New York City time, on the Expiration Date and accept its instructions with
respect to disposition of such Original Capital Securities.
1.7. Exchange Agent shall deliver certificates for Original Capital
Securities tendered in part to the Exchange Agent for split-up and shall return
any untendered Original Capital Securities or Original Capital Securities which
have not been accepted by the Company and the Trust to the Holders promptly
after the expiration or termination of the Exchange Offer.
1.8. Upon acceptance by the Company and the Trust of any Original Capital
Securities duly tendered pursuant to the Exchange Offer (such acceptance if
given orally, to be confirmed in writing), the Company and the Trust will cause
Exchange Capital Securities in exchange therefor to be issued as promptly as
practicable and Exchange Agent will deliver such Exchange Capital Securities on
behalf of the Company and the Trust at the rate of $100,000 (100 Capital
Securities) Liquidation Amount of Exchange Capital Securities for each $100,000
Liquidation Amount of Original Capital Securities tendered as promptly as
practicable after acceptance by the Company and the Trust of the Original
Capital Securities for exchange and notice (such notice if given orally, to be
confirmed in writing) of such acceptance by the Company and the Trust. Unless
otherwise instructed by the Company or the Trust, Exchange Agent shall issue
Exchange Capital Securities only in denominations of $100,000 (100 Capital
Securities) or any integral multiple of $1,000 in excess thereof.
1.9. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and the conditions set forth in the Prospectus and the
Letter of Transmittal, Original Capital Securities 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.
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1.10. Notice of any decision by the Company and the Trust not to exchange
any Original Capital Securities tendered shall be given by the Company and the
Trust either orally (if given orally, to be confirmed in writing) or in a
written notice to Exchange Agent.
1.11. If, pursuant to the Exchange Offer, the Company and the Trust do not
accept for exchange all or part of the Original Capital Securities tendered
because of an invalid tender, the occurrence of certain other events set forth
in the Prospectus under the caption "The Exchange Offer -- Conditions to the
Exchange Offer" or otherwise, Exchange Agent shall, upon notice from the Company
and the Trust (such notice if given orally, to be confirmed in writing),
promptly after the expiration or termination of the Exchange Offer return such
certificates for unaccepted Original Capital Securities (or effect appropriate
book-entry transfer), together with any related required documents and the
Letters of Transmittal relating thereto that are in Exchange Agent's possession,
to the persons who deposited such certificates.
1.12. Certificates for reissued Original Capital Securities, unaccepted
Original Capital Securities or Exchange Capital Securities shall be forwarded by
(a) first-class certified mail, return receipt requested under a blanket surety
bond obtained by Exchange Agent protecting Wilmington Trust, the Company and the
Trust from loss or liability arising out of the non-receipt or non-delivery of
such certificates or (b) by registered mail insured by Exchange Agent separately
for the replacement value of each such certificate.
1.13. Exchange Agent is not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker, dealer, commercial
bank, trust company or other nominee or to engage or use any person to solicit
tenders. 1.14. Exchange Agent:
(1) shall have no duties or obligations other than those
specifically set forth herein or in the Prospectus or in the related
Letter of Transmittal;
(2) will make no representations and will have no responsibilities
as to the validity, value or genuineness of any of the certificates for
the Original Capital Securities deposited 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;
(3) shall not be obligated to take any legal action hereunder which
might in Exchange Agent's reasonable judgment involve any expense or
liability, unless Exchange Agent's shall have been furnished with
indemnity satisfactory to it and additional fees for taking of such
action;
(4) 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 Exchange Agent and
reasonably believed by Exchange Agent to be genuine and to have been
signed by the proper party or parties;
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(5) 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 Exchange Agent
believes in good faith to be genuine and to have been signed or
represented by a proper person or persons acting in a fiduciary or
representative capacity;
(6) may rely on and shall be protected in acting upon written or
oral instructions from the President, any Senior Vice President, any
Executive Vice President, any Vice President, the Treasurer, any Assistant
Treasurer or any other designed officer of the Company;
(7) may consult with its own counsel with respect to any questions
relating to Wilmington Trust's duties and responsibilities and the advice
of such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by Exchange
Agent hereunder in good faith and in accordance with the advice of such
counsel; and
(8) shall not advise any person tendering Original Capital
Securities pursuant to the Exchange Offer as to whether to tender or
refrain from tendering all or any portion of its Original Capital
Securities or as to the market value, decline or appreciation in market
value of any Original Capital Securities that may or may not occur as a
result of the Exchange Offer or as to the market value of the Exchange
Capital Securities. Exchange Agent shall furnish copies of the Prospectus,
Letter of Transmittal and the Notice of Guaranteed Delivery or such other
forms as may be approved from time to time by the Company and the Trust,
to all persons requesting such documents from Exchange Agent. The Company
and the Trust will furnish you with copies of such documents at your
request.
1.15. Exchange Agent shall advise orally and promptly thereafter confirm
in writing to the Company and the Trust and such other person or persons as the
Company and the Trust may request, daily (and more frequently during the week
immediately preceding the Expiration Date and if otherwise reasonably requested)
up to and including the Expiration Date, the aggregate principal amount of
Original Capital Securities which have been tendered pursuant to the terms of
the Exchange Offer and the items received by Exchange Agent pursuant to the
Exchange Offer and this Agreement. In addition, Exchange Agent will also
provide, and cooperate in making available to the Company and the Trust, or any
such other person or persons upon request (such request if made orally, to be
confirmed in writing) made from time to time, such other information in its
possession as the Company and the Trust may reasonably request. Such cooperation
shall include, without limitation, the granting by Exchange Agent to the Company
and the Trust, and such person or persons as the Company and the Trust may
request, access to those persons on Exchange Agent's staff who are responsible
for receiving tenders, in order to ensure that immediately prior to the
Expiration Date the Company and the Trust shall have received adequate
information in sufficient detail to enable the Company and the Trust to decide
whether to extend the Exchange Offer. Exchange Agent shall prepare a final list
of all persons whose tenders were accepted, the aggregate principal amount of
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Original Capital Securities tendered, the aggregate principal amount of Original
Capital Securities accepted and deliver said list to the Company and the Trust.
1.16. Letters of Transmittal, book-entry confirmations and Notices of
Guaranteed Delivery shall be stamped by Exchange Agent as to the date and the
time of receipt thereof and shall be preserved by Exchange Agent as to the date
and the time of receipt thereof and shall be preserved by Exchange Agent for a
period of time at least equal to the period of time Exchange Agent preserves
other records pertaining to the transfer of securities, or one year, whichever
is longer, and thereafter shall be delivered by Exchange Agent to the Company
and the Trust. Exchange Agent shall dispose of unused Letters of Transmittal and
other surplus materials by returning them to the Company or the Trust.
2. COMPENSATION.
$4,500 will be payable to Wilmington Trust in its capacity as Exchange
Agent; provided, that Wilmington Trust reserves the right to receive
reimbursement from the Company for any reasonable out-of-pocket expenses
incurred as Exchange Agent in performing the services described herein.
3. INDEMNIFICATION.
3.1. The Company and the Trust hereby agree to protect, defend, indemnify
and hold harmless Wilmington Trust against and from any and all costs, losses,
liabilities, taxes, expenses (including reasonable counsel fees and
disbursements) and claims imposed upon or asserted against Wilmington Trust on
account of any action taken or omitted to be taken by Wilmington Trust in
connection with its acceptance of or performance of its duties under this
Agreement and the documents related thereto as well as the reasonable costs and
expenses of defending itself against any claim or liability arising out of or
relating to this Agreement and the documents related thereto. This
indemnification shall survive the release, discharge, termination and/or
satisfaction of this Agreement. Anything in this Agreement to the contrary
notwithstanding, neither the Company nor the Trust shall be liable for
indemnification or otherwise for any loss, liability, cost or expense to the
extent arising out of Wilmington Trust's bad faith, gross negligence or willful
misconduct. In no case shall the Company or the Trust be liable under this
indemnification agreement with respect to any claim against Wilmington Trust
until the Company and the Trust shall be notified by Wilmington Trust, by
letter, of the written assertion of a claim against Wilmington Trust or of any
other action commenced against Wilmington Trust, promptly after Wilmington Trust
shall have received any such written assertion or shall have been served with a
summons in connection therewith; provided, that, Wilmington Trust's failure to
give such notice shall not excuse the Company or the Trust from its obligations
hereunder. The Company and the Trust shall be entitled to participate at their
own expense in the defense of any such claim or other action, and, if the
Company and the Trust so elect, the Company or the Trust may assume the defense
of any pending or threatened action against Wilmington Trust in respect of which
indemnification may be sought hereunder with counsel reasonably acceptable to
Wilmington Trust; provided that the Company and the Trust shall not be entitled
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assume the defense of any such action if the named parties to such action
include the Company or the Trust and Wilmington Trust and representation of the
parties by the same legal counsel would, in the reasonable opinion of counsel
for Wilmington Trust , be inappropriate due to actual or potential conflicting
interests between them. In the event that the Company or the Trust shall assume
the defense of any such suit with counsel reasonably acceptable to Wilmington
Trust, the Company or the Trust, as applicable, shall not be liable for the fees
and expenses incurred by Wilmington Trust of any counsel retained by Wilmington
Trust subsequent to such assumption of defense by the Company or the Trust.
3.2. The Company agrees to indemnify and hold harmless the Trust from and
against any and all losses, claims, damages and liabilities whatsoever, as due
from the Trust under this Section.
4. TAX INFORMATION.
The Company or the Trust 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 and the Trust understand that they may be required,
in certain instances, to deduct 31% with respect to interest paid on the
Exchange Capital Securities and proceeds from the sale, exchange, redemption or
retirement of the Exchange Capital Securities 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.
5. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
6. NOTICES. Any communication or notice provided for hereunder shall be in
writing and shall be given (and shall be deemed to have been given upon receipt)
by delivery in person, telecopy, or overnight delivery or by registered or
certified mail (postage prepaid, return receipt requested) to the applicable
party at the addresses indicated below:
If to the Company:
CNB Financial Corp.
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Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
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If to the Trust:
CNBF Capital Trust I
c/o CNB Financial Corp.
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Attn: Administrator
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If to Wilmington Trust:
Corporate Trust Administration
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Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A.
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Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esquire
or, as to each party, at such other address as shall be designated by such party
in a written notice complying as to delivery with the terms of this Section.
7. PARTIES IN INTEREST. 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 to the foregoing, the parties hereto expressly agree that no holder
of Capital Securities shall have any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
8. COUNTERPARTS; SEVERABILITY. This Agreement may be executed in one or more
counterparts, and by different parties hereto on separate counterparts, each of
which when so executed shall be deemed an original, and all of such counterparts
shall together constitute one and the same agreement. If any term or other
provision of this Agreement or the application thereof is invalid, illegal or
incapable of being enforced by any rule of law, or public policy, all other
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the agreements contained herein is
not affected in any manner adverse to any party. Upon such determination that
any term or provision or the application thereof is invalid, illegal
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or unenforceable, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner in order that the agreements contained
herein may be performed as originally contemplated to the fullest extent
possible.
9. CAPTIONS. The descriptive headings contained in this Agreement are
included for convenience or reference only and shall not affect in any way the
meaning or interpretation of this Agreement.
10. ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the entire
understanding of the parties hereto with respect to the subject matter hereof.
This Agreement may not be amended or modified nor may any provision hereof be
waived except in writing signed by each party to be bound thereby.
11. TERMINATION. This Agreement shall terminate upon the earlier of (a) the
90th day following the expiration, withdrawal, or termination of the Exchange
Offer, (b) the close of business on the date of actual receipt of written notice
by Wilmington Trust from the Company and the Trust stating that this Agreement
is terminated, (c) one year following the date of this Agreement, or (d) the
time and date on which this Agreement shall be terminated by mutual consent of
the parties hereto.
Kindly indicate your willingness to act as Exchange Agent and Wilmington
Trust's acceptance of the foregoing provisions by signing in the space provided
below for that purpose and returning to the Company a copy of this Agreement so
signed, whereupon this Agreement and Wilmington Trust's acceptance shall
constitute a binding agreement among Wilmington Trust, the Company and the
Trust.
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Very truly yours,
[NAME]
By:
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Name:
Title:
[NAME]
By:
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Name:
Title:
Accepted and agreed to as of the
date first written above:
WILMINGTON TRUST COMPANY,
as Exchange Agent
By:
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Name:
Title:
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