EXHIBIT 4.6
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EXCHANGE AGENT AGREEMENT
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February 9, 1998
State Street Bank and Trust Company
2 International Place
Boston, Massachusetts 02110
Attention: Roland Gustafsen
Ladies and Gentlemen:
VIALOG Corporation, a corporation formed under the laws of the
Commonwealth of Massachusetts (the "Company"), proposes to make an offer (the
"Exchange Offer") to exchange its $1,000 principal amount 12 3/4% Series A
Senior Notes due 2001 (the "Old Notes") for its $1,000 principal amount 12 3/4%
Series B Senior Notes due 2001 (the "Exchange Notes"). The Old Notes and the
Exchange Notes are collectively referred to herein as the "Notes." The terms
and conditions of the Exchange Offer as currently contemplated are set forth in
a prospectus, dated February 12, 1998 (the "Prospectus"), to be distributed by
the Company to all record holders of the Units of the Company each consisting of
(i) one Old Note and one Warrant (a "Warrant") to purchase 10.0886 shares of the
Common Stock ("Common Stock"), par value $.01 per share of the Company (the
"Units").
The Company hereby appoints State Street Bank and Trust Company to act
as exchange agent (the "Exchange Agent") in connection with the Exchange Offer
to effect the exchange of Units for Exchange Notes and Warrants, on the terms
and subject to conditions of this agreement. References hereinafter to "you"
shall refer to State Street Bank and Trust Company.
The Exchange Offer is expected to be commenced by the Company on or
about February 12, 1998. The Letter of Transmittal accompanying the Prospectus
(or in the case of Units to be tendered by book-entry transfer, the transmission
of an Agent's Message (as defined below) in lieu of delivery of the Letter of
Transmittal through the Book-Entry Transfer Facility's Automated Tender Offer
Program ("ATOP") is to be used by the holders of the Units to accept the
Exchange Offer and contains instructions with respect to (i) the delivery of
certificates for the Units tendered in connection therewith and (ii) the book
entry transfer of Notes and Warrants to the Exchange Agent's account.
The Exchange Offer shall expire at 5:00 P.M., New York City time, on
March 26, 1998 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 before 9:00
A.M., New York City time, on the business day following the previously scheduled
Expiration Date.
The Company expressly reserves the right to amend or terminate the
Exchange Offer, and not to accept for exchange any Unit not theretofore accepted
for exchange, upon the occurrence of any of the conditions of the Exchange Offer
specified in the Prospectus under the captions "The Exchange Offer--General," "-
- -Expiration Date, Extensions; Amendments" and "--Termination". The Company will
give oral (confirmed in writing) or written notice of any amendment, termination
or nonacceptance of Units to you promptly after any amendment, termination or
nonacceptance.
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" or as specifically set forth herein; provided, however, that in no way
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will your general duty to act in good faith be discharged by the foregoing.
2. You will establish an account with respect to the Units at The
Depository Trust Company (the "Book-Entry Transfer Facility") for purposes of
the Exchange Offer within two business days after the date of the Prospectus,
and any financial institution that is a participant in the Book-Entry Transfer
Facility's system may make book-entry delivery of the Units by causing the Book-
Entry Transfer Facility to transfer such Units into your account in accordance
with the Book-Entry Transfer Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal, or Agent's
Message, in lieu thereof, and certificates for the Units (or confirmation of
book-entry transfer into your account at the Book-Entry Transfer Facility) and
any other documents delivered or mailed to you by or for holders of the Units to
ascertain whether: (i) the Letters of Transmittal and any such other documents
are duly executed and properly completed in accordance with instructions set
forth therein and (ii) the Units 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 the Units 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. You need not
pass on the legal sufficiency of any signature or verify any signature
guarantee.
4. With the approval of the President or the Vice President - Finance
of the Company or any other officer of the Company designated in writing by the
President or the Vice President - Finance of 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 Units
pursuant to the Exchange Offer.
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5. Tenders of the Units 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 the Units shall be considered properly
tendered to you only when tendered in accordance with the procedures set forth
herein and therein.
Notwithstanding the provisions of this paragraph 5, Units that any
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).
6. You shall advise the Company with respect to any Units received
subsequent to the Expiration Date and accept their instructions with respect to
disposition of such Units.
7. You shall accept tenders:
(a) in cases where the Units 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 so to act is submitted; and
(c) from persons other than the registered holder of the Units
provided that customary transfer requirements, including any applicable transfer
taxes, are fulfilled.
You shall accept partial tenders of the Units where so indicated and
as permitted in the Letter of Transmittal and deliver certificates for the Units
to the transfer agent for split-up and return any untendered Units 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.
8. 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 Units properly tendered and you, on behalf of the Company, will exchange
such Units for Exchange Notes and Warrants and cause such Units to be canceled.
Delivery of Exchange Notes and Warrants will be made on behalf of the Company by
you at the rate of $1,000 principal amount of Exchange Notes for each $1,000
principal amount of the corresponding series of Old Notes tendered promptly
after notice (such notice if given orally, to be confirmed in writing) of
acceptance of said Units by the Company and one Warrant to purchase 10.0886
shares of Common Stock for each $1000 principal amount of Exchange Notes;
provided, however, that in all cases, the Units tendered pursuant to the
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Exchange Offer will be exchanged only after timely receipt by you of
certificates for such Units (or confirmation of book-entry transfer into your
account at the Book-Entry Transfer Facility), a properly completed and duly
executed Letter of Transmittal
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(or facsimile thereof), or for book-entry transfers of Units, an Agent's Message
in lieu thereof, with any required signature guarantees and any other required
documents. You shall issue Exchange Notes only in denominations of $1,000 or any
integral multiple thereof and one Warrant to purchase 10.0886 Shares of Common
Stock for each $1,000 principal amount of Exchange Notes or any integral
multiple 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, the Units tendered pursuant to the Exchange Offer
may be withdrawn at any time on or prior to the Expiration Date.
10. The Company shall not be required to exchange any Units 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 Units tendered shall be given
orally (and 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 Units tendered because of an invalid tender, the
occurrence of certain other events set forth in the Prospectus under the caption
"The Exchange Offer-- Termination" or otherwise, you shall promptly after the
expiration or termination of the Exchange Offer return those certificates for
unaccepted Units (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.
12. All certificates for reissued Units, unaccepted Units or for
Exchange Notes and Warrants shall be forwarded by (a) first-class mail, 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.
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.
14. As Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those
specifically set forth in the section of the Prospectus captioned "The Exchange
Offer," 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 (not only as to genuiness but
also as to its due execution, genuiness of signatures appearing thereon and as
to truth and accuracy of information contained therein), value or genuineness of
any of the certificates or the Units represented thereby deposited with you
pursuant to the Exchange Offer, and will not be
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required to and will make no representation as to the validity, value or
genuineness of the Exchange Offer or the Exchange Notes or Warrants;
(c) shall not be obligated to take any legal action hereunder that
might in your reasonable judgment involve any expense or liability, unless you
shall have been furnished with reasonable indemnity;
(d) shall not be liable to the Company for any action taken or
omitted by you, or any action suffered by you to be taken or omitted, without
gross negligence, willful misconduct or bad faith on your part, by reason of or
as a result of the administration of your duties hereunder in accordance with
the terms and conditions of this Agreement or by reason of your compliance with
the instructions set forth herein or with any written or oral instructions
delivered to you pursuant hereto, and 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,
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 advice or 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 advice or opinion of such counsel; and
(h) shall not advise any person tendering Units 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 Units.
(i) you shall not be deemed to have notice of any fact, claim or
demand with respect hereto unless actually known by an officer charged with
responsibility for administering this Agreement or unless in writing received by
you and making specific reference to this Agreement.
15. You shall take such action as may from time to time be reasonably
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
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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. All other requests for information
relating to the Exchange Offer shall be directed to the Company, Attention:
Glenn D. Bolduc, President. The Company shall pay the reasonable fees and
expenses of the Exchange Agent in providing the services set forth in this
section.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to Glenn D. Bolduc, and such other person
or persons as the Company may request, daily (and more frequently during the
week immediately preceding the Expiration Date as reasonably otherwise
requested) up to and including the Expiration Date, as to the number of Units
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 on or
prior to the Expiration Date of such other information as it or such person
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 amount of Units tendered, the
aggregate amount of Units accepted and deliver the list to the Company promptly
after the Expiration Date.
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
maintained by you for a period of time at least equal to the period of time you
maintain other records pertaining to the transfer of Notes. 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.
18. 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 you or for compensation owed to you hereunder.
19. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation and reimbursement of out-of-pocket expenses as set
forth on Schedule I attached hereto.
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20. 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
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latter two documents, except with respect to the duties, liabilities and
indemnification of you as Exchange Agent, which shall be controlled by this
Agreement.
21. (a) 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 the administration of your duties hereunder
or 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 Units 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 Units; provided, however, that the Company shall not be liable for
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indemnification or otherwise for any loss, liability, cost or expense to the
extent arising out of your gross negligence or willful misconduct.
(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 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 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 from all liability arising out of such claim, action or
proceeding.
22. 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 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.
23. 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.
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. 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. This Agreement may not be modified orally.
26. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
or similar
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writing) and shall be given to such party, addressed to it, at its address or
facsimile number set forth below:
If to the Company:
VIALOG Corporation
Ten New England Business Center, Suite 302
Andover, Massachusetts 01810
Facsimile: (978) 975-7208
Attention: Glenn D. Bolduc, President
If to the Exchange Agent:
State Street Bank and Trust Company
2 International Place
Boston, Massachusetts 02110
Facsimile: (617) 664-5150
Attention: Roland Gustafsen
27. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, paragraphs 19 and 21 shall survive the termination of this Agreement.
Upon any termination of this Agreement, you shall promptly deliver to the
Company any certificates for Units, Notes, Warrants, funds or property then held
by you as Exchange Agent under this Agreement.
28. 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.
VIALOG Corporation
By: /s/ Glenn D. Bolduc
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Name: Glenn D. Bolduc
Title: President
Accepted as the date
first above written:
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STATE STREET BANK AND TRUST COMPANY, as Exchange Agent
By: /s/ Roland Gustafsen
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Name: Roland Gustafsen
Title: Assistant Vice President
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SCHEDULE I
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FEES
STATE STREET BANK AND TRUST COMPANY
EXCHANGE AGENCY
FEE SCHEDULE
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