EXECUTION VERSION
EXCHANGE AGENT AGREEMENT
by
and among
Cogdell Spencer LP
and
the
persons collectively referred to herein as the “Seller
Representative”
and
Mellon Investor Services LLC
in
respect of the delivery of merger consideration to the stockholders
of MEA Holdings, Inc.
THIS EXCHANGE AGENT AGREEMENT (this
“Agreement”) is made and entered into as of
March 10, 2008 by and between Cogdell Spencer LP., a Delaware
limited partnership (the “ Parent ”), David P.
Pelisek (“ Pelisek ”), Scott A. Ransom (“
Ransom ”), David J. Lubar (“ Lubar
,” and together with Ransom and Pelisek, the “
Seller Representative ”) and Mellon Investor Services
LLC (operating with the service name BNY Mellon Shareowner
Services), a New Jersey limited liability company (“
Agent ”). Capitalized terms used but not defined
herein shall have the meaning ascribed to such terms in the Merger
Agreement (as defined below).
1.
Appointment .
(a) The Parent hereby appoints
Agent to act as exchange agent with respect to the following:
(i) the
surrender of certificates representing (1) the shares of
Common Stock of MEA Holdings, Inc., a Wisconsin corporation (the
“ Target ”), $0.01 par value per share (the
“ Common Shares ”) in exchange for payment of
the initial payment of $69.03 per share due to each holder of
record of the Common Shares immediately before the Effective Time
(the “ Initial Merger Consideration ”) and
(2) the shares of Preferred Stock of the Target, $0.01 par
value per share (the “ Preferred Shares ” and,
together with the Common Shares, the “ Shares ”)
in exchange for payment of $100 per share due to each holder of
record of the Preferred Shares immediately before the Effective
Time plus accrued but unpaid dividends as set forth on Exhibit
A attached hereto (the “ Preferred Per Share
Amount ”), each pursuant to the provisions of the
Agreement and Plan of Merger (the “ Merger Agreement
”), dated as of January 23, 2008 by and among Cogdell
Spencer, Inc., the Parent, Goldenboy Acquisition Corp., the Target,
Marshall Erdman & Associates, Inc., Marshall Erdman
Development, LLC and the Seller Representative, providing for the
merger of Goldenboy Acquisition Corp. with and into the Target (the
“ Merger ”) and the disbursement instruction,
dated the same date of this Agreement, to be delivered by the
Seller Representative to the Agent, on behalf of the former holders
of the Common Shares and the Preferred Shares, which shall specify
the amount and recipients with respect to the payment of the
Initial Merger Consideration and the Preferred Per Share Amount
(the “ Share Disbursement Instruction ”);
and
(ii) the
payment of the option payment due to each holder of record of
Company Options immediately prior to the Effective Time of $69.03
per share (the “ Option Payment ”) pursuant to
the provisions of the Merger Agreement and the disbursement
instruction, dated the same date of this Agreement, to be delivered
by the Seller Representative to the Agent, on behalf of the former
holders of Company Options, which shall specify the amount and
recipients with respect to the payment of the Option Payment (the
“ Option Disbursement Instruction ” and together
with the Share Disbursement Instruction, the “
Disbursement Instructions ”);
Agent
hereby accepts such appointment in accordance with and subject to
the terms and conditions set forth in this Agreement. It is
understood that additional amounts may be payable to the former
holders of the Common Shares and Company Options pursuant to the
provisions of the Merger Agreement and of the Escrow Agreement,
dated as of the date of this Agreement (the “ Escrow
Agreement ”), entered into among the Parent, Seller
Representative and Agent.
(b) The Merger is currently
expected to become effective following the satisfaction of the
conditions to closing set forth in the Merger Agreement. The time
at which the Merger becomes effective is referred to in the Merger
Agreement and in this Agreement as the “Effective
Time.” The Parent shall confirm to Agent that the Effective
Time has occurred as soon as practicable thereafter.
(c) The Parent has furnished or
will furnish Agent prior to the Effective Time with copies of the
following documents:
(i) a
letter to be sent from the President and Chief Executive Officer of
the Surviving Corporation (as defined in the Merger Agreement) to
the persons who held the Shares
immediately before the Effective Time, announcing the effectiveness
of the Merger and containing instructions for use in effecting the
surrender of the Shares in exchange for the Initial Merger
Consideration and/or the Preferred Per Share Amount, as applicable;
and
(ii) the
letter of transmittal (the “ Letter of Transmittal
”) that will be required to accompany certificates
representing Shares when surrendered (such Letter of Transmittal to
be in a form acceptable to Agent) in exchange for the Initial
Merger Consideration and/or the Preferred Per Share Amount, as
applicable, and the related Certification of Taxpayer
Identification Number on Substitute Form W-9.
(d) Within five days after the
Effective Time, Parent will furnish Agent with a list, in a format
acceptable to Agent, of the holders of record of the Shares and
Company Options immediately before the Effective Time, including
each such holder’s name, address, taxpayer identification
number (“ TIN ”), Share and/or Company Option
amount and any certificate detail, if applicable (the “
Record Stockholders List ”). The Parent confirms that
the Merger Agreement provides that no transfers of Shares or
Company Options will be made after the Effective Time.
(e) Subject to the terms and
conditions of this Agreement and the Parent’s confirmation of
the Effective Time pursuant to Section 1(b) hereof, Agent in its
capacity as exchange agent hereunder shall:
(i) accept
certificates representing Shares, together with the accompanying
Letters of Transmittal, sent to Agent by or on behalf of such
holders for surrender;
(ii) make
payment of the Initial Merger Consideration or Preferred Per Share
Amount, as applicable, in accordance with the Share Disbursement
Instruction to the extent applicable and in each case, less any
applicable tax withholding, to each such holder by the mailing of a
check (by first class mail) or such other payment method as shall
be mutually agreed by the Parent and Agent; and
(iii) make
payment of the Option Payment, in accordance with the Option
Disbursement Instruction in each case, less any applicable tax
withholding, to each such holder by the mailing of a check (by
first class mail) or such other payment method as shall be mutually
agreed by the Parent and Agent.
2.
Procedure for Discrepancies .
Agent
shall follow its regular procedures to attempt to reconcile any
discrepancies between the number of certificated Shares that any
Letter of Transmittal may indicate are owned by a surrendering
stockholder and the number that the Record Stockholders List
indicates such stockholder owned of record as of the Effective
Time. In any instance where Agent cannot reconcile such
discrepancies by following such procedures, Agent will consult with
the Parent for instructions as to the number of certificated
Shares, if any, Agent is authorized to accept for payment
hereunder. In the absence of such instructions, Agent is authorized
not to accept any such certificated Shares for payment hereunder
and will return to the surrendering stockholder (at Agent’s
option by either first class mail under a blanket surety bond or
insurance protecting Agent and the Parent from losses or
liabilities arising out of the non-receipt or non-delivery of such
Shares or by registered mail insured separately for the value of
such Shares) to such stockholder’s address as set forth in
the Letter of Transmittal any certificates representing Shares
surrendered in connection therewith, the related Letters of
Transmittal and any other documents received with such
Shares.
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3.
Certain Shares to be Cancelled .
The
Parent shall as promptly as reasonably practicable following the
Effective Time, provide to Agent a written list of all Shares,
including shareholder name, share amount and certificate detail,
that are to be cancelled without payment of consideration in
accordance with the Merger Agreement. The Seller Representative
shall promptly prior to the Effective Time deliver all physical
certificates representing any such shares to Agent for proper
cancellation. The Parent hereby authorizes and instructs Agent to
cancel all such shares delivered to Agent hereunder.
4.
Deposit of Funds .
(a) At the Effective Time, the
Parent will deposit, or cause to be deposited, with Agent into an
account for the benefit of surrendering holders of certificates
representing the Shares and the holders of Company Options,
immediately available funds in the amounts required by Agent to
satisfy its obligations under this Section 4(a) (the “
Merger Fund ”). Agent will draw upon the Merger Fund
as required from time to time in order to make payments for Shares
and Company Options and any applicable tax withholding payments
payable at the closing.
(b) Agent shall pay interest to
the Parent on the average daily balance of the Merger Fund at the
Dreyfus Treasury Cash Management Investor Fund rate. Upon mailing
any check to a surrendering holder to pay such holder (i) the
Initial Merger Consideration or the Preferred Per Share Amount, as
applicable or (ii) the Option Payment Amount, in each case, as
applicable, Agent shall remove the funds needed to cover such check
from the Merger Fund on the check mail date. Agent must receive
immediately available funds prior to 1:00 p.m. Eastern Time in
order for such funds to earn interest on the date of deposit. Funds
received after this time will not earn interest for the Parent
until the following business day. Interest shall be paid to the
Parent prior to the end of the month immediately following the
month in which it was earned. Interest shall not be paid if any
outstanding invoices issued under this Agreement are past due.
Except as expressly provided above, Agent will not be obligated to
calculate or pay interest to any holder or any other party claiming
through a holder or otherwise. Agent may, in making or disposing of
any investment permitted by this Agreement, deal with itself, in
its individual capacity, or any of its affiliates, whether or not
it or such affiliate is acting as a subagent of Agent or for any
third person or dealing as principal for its own account.
5.
Lost Certificates .
If any
holder of Shares as of the Effective Time reports to Agent that his
or her failure to surrender any certificate(s) representing Shares
registered in his or her name at the Effective Time according to
the Record Stockholders List is due to the theft, loss or
destruction of the certificate(s) representing such Shares, upon
Agent’s receipt from such stockholder of (i) an
affidavit of such theft, loss or destruction and (ii) a bond
of indemnity in form and substance satisfactory to Agent (such
indemnity shall indemnify Agent, the Parent and the Surviving
Corporation against any claim that may be made against either with
respect to such stolen, lost or destroyed certificates), and
(iii) payment of all applicable fees, Agent will effect
payment of the applicable Initial Merger Consideration and/or
Preferred Per Share Amount, as applicable, to the former
stockholder as though the stolen, lost or destroyed certificate(s)
representing the Shares had been properly surrendered. Agent may
charge holders an administrative fee for processing payment with
respect to Shares represented by lost certificates, which shall be
charged only once in instances where a single surety bond obtained
covers multiple certificates. Agent may receive compensation from
the surety companies or surety agents for administrative services
provided to them. Alternatively, holders of Shares may obtain a
bond of indemnity from a surety company of their choice, provided
the surety company satisfies Agent’s minimum
requirements.
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6.
Eligibility of Shares for Payment . Other than as set forth
in Exhibit B hereto, all certificates representing
Shares (other than certificates representing Shares to be cancelled
pursuant to Section 3 hereof) are eligible for payment
regardless of any restrictive legend affixed thereupon or
applicable thereto and any other restrictions on payment.
7.
Procedure for Deficient Items .
(a) Agent shall examine each
Letter of Transmittal and the accompanying certificates
representing the Shares received by it as exchange agent to
ascertain whether they appear to have been completed and executed
in accordance with the instructions set forth in the Letter of
Transmittal. In the event Agent determines that any Letter of
Transmittal does not appear to have been properly completed or
executed, or where the certificates representing Shares do not
appear to be in proper form for surrender, or any other deficiency
in connection with the surrender appears to exist, Agent will
follow, where possible, its regular procedures to attempt to cause
such irregularity to be corrected. Agent is not authorized to waive
any deficiency in connection with the surrender, unless the Parent
provides written authorization to waive such deficiency.
(b) If a Letter of Transmittal
specifies that payment of any portion of the Initial Merger
Consideration and/or Preferred Per Share Amount, as applicable, is
to be made to a person other than the registered holder of the
Shares represented by a surrendered certificate, Agent will issue
no Initial Merger Consideration and/or Preferred Per Share Amount,
as applicable, to the person requesting such payment until such
Letter of Transmittal has been properly endorsed with the signature
medallion guaranteed (or otherwise put in proper form for
transfer).
(c) If any such deficiency with
respect to any certificated Shares is neither corrected nor waived,
Agent shall return to the surrendering stockholder (at
Agent’s option by either first class mail under a blanket
surety bond or insurance protecting Agent and the Parent from
losses or liabilities arising out of the non-receipt or
non-delivery of certificates representing the Shares or by
registered mail insured separately for the value of such Shares) to
such stockholder’s address as set forth in the Letter of
Transmittal, any certificates representing Shares surrendered in
connection therewith, the related Letters of Transmittal and any
other documents received with such Shares.
8.
Cancellation of Shares .
As of
the Effective Time, Agent will become the sole recordkeeping agent
for the Shares, and shall maintain such records in accordance with
its standard practices. Upon making payment for Shares, the
certificates representing such Shares will be physically canceled
by Agent and posted to the records Agent maintains.
9.
Report of Activity .
Agent
will forward to the Parent and the Seller Representative a report
of the number of Shares represented by certificates surrendered and
the aggregate amount of cash paid for such certificates therefor
(i) during the 60 day period following the Effective
Time, for each day on which payment activity occurs and
(ii) thereafter, upon the Parent’s and/or the Seller
Representative’s reasonable request.
10.
Tax Reporting .
(a) On or before
January 31st of the year following the year that the
applicable Initial Merger Consideration, Preferred Per Share Amount
or Option Payment, as applicable, is paid to a holder of Shares or
Company Options, Agent shall prepare and mail to each such holder,
other than holders who
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demonstrate their status as nonresident aliens in accordance with
United States Treasury Regulations (“Foreign
Stockholders”), a Form 1099-B reporting the Initial Merger
Consideration, Preferred Per Share Amount or Option Payment, as
applicable, as of the year of payment, in accordance with United
States Treasury Regulations. Agent shall also prepare and file
copies of such Forms 1099-B by magnetic tape with the Internal
Revenue Service on or before February 28th of the year
following the payment of the applicable Initial Merger
Consideration, Preferred Per Share Amount or Option Payment, as
applicable, for Shares or Company Options, as applicable, in
accordance with United States Treasury Regulations.
(b) If Agent has not received
notice from the surrendering holder of that holder’s TIN, or
if such TIN has not been certified as correct and relates to a
post-1983 account, Agent shall deduct and withhold the appropriate
backup withholding tax from any payment made to such holder (other
than a Foreign Stockholder) pursuant to the Internal Revenue
Code.
(c) Should any issue arise
regarding federal income tax reporting or withholding, Agent shall
take such reasonable action as the Parent reasonably may request in
writing. Such action may be subject to reasonable additional
fees.
11.
Unexchanged Stockholders .
Approximately three months after the Effective Time, Agent shall,
unless the Parent instructs otherwise, mail a follow-up letter to
all stockholders who did not surrender their certificates
representing Shares for payment or supply an affidavit and bond of
indemnity pursuant to Section 5 hereof. The follow-up letter
will be mailed with a Letter of Transmittal, return envelope, and
W-9 Guidelines. Following the date that is six months after the
Effective Time, for the purpose of facilitating the surrender of
certificated Shares and the payment of Initial Merger Consideration
or the Preferred Per Share Amount, as applicable, Agent may, unless
the Parent instructs otherwise, use the services of a stockholder
locating
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