EXHIBIT 1.1
DEALER MANAGER AGREEMENT
December 1, 2004
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. Maverick Tube Corporation, a Delaware corporation (the "Company"),
proposes to offer to exchange (hereinafter referred to, together with any
amendments, supplements or extensions thereof, as the "Exchange Offer") its
4.00% Convertible Senior Subordinated Notes due June 15, 2033 (the "New Notes")
that are convertible into shares (the "Shares") of common stock, par value $0.01
per share ("Common Stock"), of the Company, for any and all of its issued and
outstanding 4.00% Convertible Senior Subordinated Notes due June 15, 2033 (the
"Existing Notes") that are convertible into shares of Common Stock, on the terms
and subject to the conditions set forth in the Exchange Offer Material (as
hereinafter defined) as the same may be amended or supplemented from time to
time.
2. The Company hereby appoints you as Dealer Manager (the "Dealer
Manager") and authorizes you to act as such in connection with the Exchange
Offer. As Dealer Manager, you agree, on the basis of the representations,
warranties and covenants of the Company contained herein and in accordance with
your customary practice, to perform those services in connection with the
Exchange Offer as are customarily performed by you in connection with exchange
offers of like nature, including, but not limited to, using reasonable best
efforts to solicit tenders of Existing Notes pursuant to the Exchange Offer and
communicating generally regarding the Exchange Offer with brokers, dealers,
commercial banks and trust companies and other holders of Existing Notes. In
such capacity, you shall act as an independent contractor, and each of your
duties arising out of your engagement pursuant to this Dealer Manager Agreement
(this "Agreement") shall be owed solely to the Company.
The Company further authorizes you to communicate with The Bank of New
York, in its capacity as exchange agent (the "Exchange Agent"), and with X.X.
Xxxx & Co., Inc., in its capacity as information agent (the "Information
Agent"), with respect to matters relating to the Exchange Offer. The Company has
instructed the Exchange Agent to advise you at least daily during the pendency
of the Exchange Offer as to the aggregate principal amount of Existing Notes
that have been tendered pursuant to the Exchange Offer and as to such other
matters in connection with the Exchange Offer as you may request.
3. Neither you nor any of your affiliates shall have any liability (in
tort, contract, or otherwise) to the Company or any other person for any losses,
claims, damages, liabilities, or expenses arising from your engagement or
services as Dealer Manager hereunder or from any act or omission on the part of
any broker or dealer in securities (a "Dealer"), bank or trust company or any
other person in connection with the Exchange Offer, except in any case for any
such
losses, claims, damages, liabilities, or expenses that are determined by final
and nonappealable judgment of a court of competent jurisdiction to have resulted
primarily from your gross negligence or willful misconduct. In soliciting or
obtaining tenders, no Dealer, bank or trust company is to be deemed to be acting
as your agent or the agent of the Company or any of its affiliates, and you, as
Dealer Manager, are not to be deemed the agent of any Dealer, bank or trust
company or the agent or fiduciary of the Company or any of its affiliates,
security holders, creditors or of any other person solely because of your
position as Dealer Manager. In soliciting or obtaining tenders, you shall not be
and shall not be deemed for any purpose to act as a partner or joint venturer of
or a member of a syndicate or group with the Company or any of its affiliates in
connection with the Exchange Offer, any acceptance of the Existing Notes, or
otherwise, and neither the Company nor any of its affiliates shall be deemed to
act as your agent. The Company shall have sole authority for the acceptance or
rejection of any and all tenders.
4. The Company agrees to furnish you, at its expense, with as many
copies as you may reasonably request of (i) each of the documents filed by or on
behalf of the Company with the Securities and Exchange Commission (the
"Commission") or any other federal, state, local or foreign governmental or
regulatory authorities or any court (each, an "Other Agency" and collectively,
the "Other Agencies"), including each registration statement and prospectus
filed with the Commission, in connection with the Exchange Offer and all
documents incorporated therein by reference, (ii) each offering circular,
solicitation statement, disclosure document, or other explanatory statement, or
other report, filing, document, release or communication mailed, delivered,
published, or filed by or on behalf of the Company in connection with the
Exchange Offer, (iii) each document required to be filed with the Commission
pursuant to the provisions of the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the Commission thereunder (collectively,
the "Securities Act"), and the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated by the Commission thereunder
(collectively, the "Exchange Act"), pertaining, to either the Exchange Offer or
the Company during the term of this Agreement, including, but not limited to, a
tender offer statement on Schedule TO with respect to the Exchange Offer
(including the exhibits thereto and any documents incorporated by reference
therein, the "Schedule TO"), and (iv) each appendix, attachment, modification,
amendment or supplement to any of the foregoing and all related documents,
including, but not limited to, each related letter of transmittal (the documents
described in the immediately preceding clauses (i), (ii), (iii) and (iv),
together with each document incorporated by reference in any of the foregoing,
being the "Exchange Offer Material"). The Exchange Offer Material has been or
will be prepared and approved by, and is the sole responsibility of, the
Company, with the exception of the information described in the last sentence of
Section 9(b). At the commencement of the Exchange Offer, the Company shall cause
timely to be delivered, to each registered holder of any Existing Notes legally
or contractually entitled thereto, the Exchange Offer Material (except the
documents incorporated by reference in the Prospectus (as hereinafter defined))
and any other offering materials prepared expressly for use by holders of
Existing Notes tendering in the Exchange Offer, together with a return envelope.
Thereafter, to the extent practicable, until the expiration of the Exchange
Offer, the Company shall use its best efforts to cause copies of such materials
and a return envelope to be mailed to each person who becomes a holder of any
applicable Existing Notes.
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The Company acknowledges and agrees that you may use the Exchange Offer
Material as specified herein without assuming any responsibility for independent
investigation or verification on your part and the Company represents and
warrants to you that you may rely on the accuracy and adequacy of any
information delivered to you by or on behalf of the Company without assuming any
responsibility for independent verification of such information or without
performing or receiving any appraisal or evaluation of the Company's assets or
liabilities.
The Company agrees that, a reasonable time prior to using or filing
with the Commission or with any Other Agency any Exchange Offer Material or
materials to be used in connection with the transactions the Exchange Offer
Material contemplates, it will submit copies of such material to you and will
not use such materials in connection with the Exchange Offer or the transactions
it contemplates:
(1) without first obtaining your prior approval, which shall
not be unreasonably delayed or withheld, with respect to (i) each of
the documents filed by or on behalf of the Company with the Commission
or any Other Agency in connection with the Exchange Offer, including
the Initial Registration Statement (as hereinafter defined), each
amendment thereto or to the Registration Statement (as hereinafter
defined) and each preliminary prospectus and prospectus relating to the
Exchange Offer filed with the Commission, (ii) each offering circular,
solicitation statement, disclosure document, or other explanatory
statement, or other report, filing, document, release or communication
mailed, delivered, published, or filed by or on behalf of the Company
in connection with the Exchange Offer, (iii) each document required to
be filed with the Commission pursuant to the provisions of the
Securities Act and the Exchange Act pertaining to the Exchange Offer,
including, but not limited to, the Schedule TO, and (iv) each appendix,
attachment, modification, amendment or supplement to any of the
foregoing and all related documents, including, but not limited to,
each related letter of transmittal; provided that this requirement
shall not apply to any document incorporated by reference in any of the
foregoing materials; and
(2) with respect to any Exchange Offer Material not included
in (1) above, without previously submitting such document to you a
reasonable time prior to the first use or filing thereof and giving
reasonable consideration to your or your counsel's comments, if any,
thereon, subject, however, to compliance with the Securities Act and
the Exchange Act.
In the event that (i) the Company uses or permits the use of any
Exchange Offer Material or other solicitation material in connection with the
Exchange Offer or files any such material with the Commission or any Other
Agency, with respect to the materials described in (1) above, without your prior
approval or, with respect to the materials described in (2) above, that, in the
Dealer Manager's judgment, compromises your position as or your ability to
perform your role as Dealer Manager or your ability to comply with the
Securities Act or the Exchange Act, (ii) the Company withdraws, terminates or
cancels the Exchange Offer, (iii) the Dealer Manager determines at any time that
any condition set forth in Section 10 will not be satisfied, (iv) the
certificate referred to in Section 10(b) discloses any material misstatement or
omission in the financial information included or incorporated by reference in
the Exchange Offer Material, (v)
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the Registration Statement (as hereinafter defined) containing all of the
required information, including a prospectus that meets the requirements of
Section 10(a) of the Securities Act shall not have become effective on or prior
to the expiration date of the Exchange Offer, or (vi) at any time during the
Exchange Offer, a stop order suspending the effectiveness of the Registration
Statement shall have been issued or a proceeding for that purpose shall have
been instituted or shall be pending or threatened by the Commission, or a
request for additional information on the part of the Commission shall not have
been satisfied to the reasonable satisfaction of the Dealer Manager or there
shall have been issued, at any time during the Exchange Offer, any temporary
restraining order or injunction restraining or enjoining you from acting in your
capacity as a Dealer Manager with respect to the Exchange Offer, then you (A)
shall have a reasonable period of time after discovering or being informed of
such event to elect whether to continue to act as Dealer Manager and shall be
entitled to withdraw as Dealer Manager in connection with the Exchange Offer
without any liability or penalty to you or any other person defined in Section
11 as an Indemnified Person, (B) shall be entitled promptly to receive the
payment of any expense reimbursement payable to you under this Agreement with
respect to expenses which have accrued to the date of such withdrawal or which
may otherwise thereafter become payable and (C) shall continue to be entitled to
the indemnification and contribution provisions contained in Section 11.
Notwithstanding anything to the contrary contained in this Agreement, the
Company may complete the Exchange Offer after your withdrawal as Dealer Manager,
provided that the Company (i) amends or supplements the Exchange Offer Material
in a manner reasonably satisfactory to you to disclose that you have withdrawn
as Dealer Manager and (ii) utilizes a means reasonably calculated to reach
holders of the Existing Notes to inform them of such withdrawal.
5. The Company agrees to pay you, as compensation for your services as
Dealer Manager in connection with the Exchange Offer, a fee of $3.80 per $1,000
par value of Existing Notes validly tendered and not withdrawn, regardless of
whether any Existing Notes are acquired by the Company upon the expiration or
termination of the Exchange Offer.
6. In addition to your compensation for your services under this
Agreement, the Company agrees to pay directly for (i) all fees and expenses
relating to the preparation, filing, printing, mailing, and publishing of the
Exchange Offer Material, (ii) all fees and expenses of the Exchange Agent, the
Information Agent and other persons rendering services in connection with the
Exchange Offer or the transactions it contemplates, (iii) all advertising
charges in connection with the Exchange Offer or the transactions it
contemplates, including those of any public relations firm or other person or
entity rendering services in connection therewith incurred by the Company (but
excluding any charges related to the announcements described in Section 18 of
this Agreement), (iv) all fees, if any, payable to Dealers (including you), and
banks and trust companies as reimbursement for their customary mailing and
handling expenses incurred in forwarding the Exchange Offer Material to their
customers, (v) any and all fees and expenses incurred in connection with the
listing of the Shares on the New York Stock Exchange (the "NYSE"), and (vi) all
fees and expenses incurred by you in connection with the Exchange Offer or
otherwise in connection with the performance of your services hereunder
(including fees and disbursements of your legal counsel). All payments to be
made by the Company pursuant to this Section 6 shall be made promptly against
delivery to the Company of statements therefore. The Company shall perform its
obligations set forth in this Section 6 and in Section 5 regardless of
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whether the Exchange Offer is commenced, withdrawn, terminated or canceled prior
to the acceptance of any Existing Notes, whether the Company or any of its
subsidiaries or affiliates acquires any Existing Notes pursuant to the Exchange
Offer or whether you withdraw pursuant to Section 4 of this Agreement.
7. The Company will cause you to be provided with cards or lists or
other records in such form as you may reasonably request showing the names and
addresses of, and the aggregate principal amount of Existing Notes held by, the
holders of Existing Notes as of a recent date and will cause you to be advised
from day to day during the period of the Exchange Offer as to any transfers of
record of Existing Notes.
8. In addition to the other agreements of the Company contained
elsewhere in this Agreement, the Company hereby agrees and acknowledges, as
applicable, that:
(a) The Company will furnish to you, without charge, one
signed copy of each of: (i) the registration statement on Form S-4,
including a prospectus that meets the requirements of Section 10(a) of
the Securities Act, covering the registration of the exchange of New
Notes for Existing Notes in the Exchange Offer (such registration
statement, including all of the documents incorporated by reference
therein and all financial statements, schedules and exhibits thereto,
(A) in the form in which it was originally filed with the Commission,
is referred to herein as the "Initial Registration Statement," and (B)
in the form in which it becomes effective, is referred to herein as the
"Registration Statement," which term shall also include, unless the
context otherwise requires, any post-effective amendment thereto or any
abbreviated registration statement related thereto pursuant to Rule
462(b) of the Securities Act, in either case filed with the Commission
with your prior approval and otherwise in accordance with the terms of
this Agreement); and (ii) the Schedule TO and each amendment thereto,
if any.
(b) The Company will use its reasonable best efforts to cause
the Registration Statement, and any post-effective amendments thereto
and any abbreviated registration statement related thereto pursuant to
Rule 462(b) of the Securities Act (in either case filed with the
Commission with your prior approval and otherwise in accordance with
the terms of this Agreement), to become effective as promptly as
practicable. The Company will prepare and file, as required, any and
all necessary amendments or supplements to any of the Exchange Offer
Material, will promptly furnish to you true and complete copies of each
such amendment and supplement within a reasonable period of time prior
to the filing thereof and will use its reasonable best efforts to cause
the same to become effective as promptly as practicable.
(c) The Company will advise you promptly of (i) the time when
the Registration Statement has become effective and when any
post-effective amendment thereto has been filed or becomes effective or
any other Exchange Offer Material has been filed with the Commission,
(ii) the occurrence of any event which would reasonably be expected to
cause the Company to withdraw, rescind, terminate, cancel or modify the
Exchange Offer or otherwise not consummate the Exchange Offer, (iii)
the occurrence of any event, or the discovery of any fact, the
occurrence or existence of which it believes
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would require the making of any change in any of the Exchange Offer
Material then being used or would cause any representation or warranty
contained in this Agreement to be untrue or inaccurate in any material
respect, (iv) any proposal or requirement to make, amend or supplement
any filing required by the Securities Act, the Exchange Act or any
"blue sky" or other state securities laws in connection with the
Exchange Offer or to make any filing in connection with the Exchange
Offer pursuant to any other applicable law, rule or regulation, (v) the
issuance by the Commission or any Other Agency of any comment or order
or the taking of any other action concerning the Exchange Offer (and,
if in writing, will furnish you with a copy thereof), (vi) any material
developments in connection with the Exchange Offer, including, without
limitation, the commencement of any lawsuit concerning the Exchange
Offer and (vii) any other information relating to the Exchange Offer,
the Exchange Offer Material or this Agreement that you may reasonably
request from time to time. If at any time the Commission shall issue
any order suspending the effectiveness of the Registration Statement or
any state securities commission or other regulatory authority shall
issue an order suspending the qualification of the New Notes under
state securities or "blue sky" laws, the Company will make every
reasonable effort to obtain the withdrawal of such order at the
earliest practicable time.
(d) Prior to the issuance of the New Notes, the Company will
obtain the registration or qualification thereof under the securities
or "blue sky" laws of such jurisdictions as may be required for the
consummation of the Exchange Offer; provided, however, that in no event
shall the Company or any of the subsidiary guarantors be obligated to
qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that would subject it to the imposition
of any tax or to service of process in suits, other than those arising
out of the offering or sale of the New Notes, in any jurisdiction where
it is not now so subject.
(e) Until an earnings statement has been filed pursuant to
Section 8(h), the Company will deliver to you, promptly upon their
becoming available, copies of all financial statements, reports,
notices and proxy statements sent by the Company to its security
holders, and of all current, regular and periodic reports filed by the
Company or any of its subsidiaries with any securities exchange or with
the Commission or any governmental authority succeeding to any of the
Commission's functions (other than current reports on Form 8-K
available on the Commission's XXXXX system).
(f) Prior to the date on which the Company exchanges New Notes
for validly tendered Existing Notes that it has accepted in accordance
with the terms of the Exchange Offer (the "Exchange Date"), the Company
will furnish to you, as soon as they have been prepared by the Company,
a copy of any consolidated financial statements of the Company and its
consolidated subsidiaries for any period subsequent to the most recent
period covered by the financial statements included or incorporated by
reference in the Registration Statement and the prospectus included in
the Registration Statement at the time it becomes effective (the
"Prospectus," which term shall also include any prospectus filed with
the Commission pursuant to Rule 424(b) under the Securities Act with
your prior approval and otherwise in accordance with the terms of this
Agreement and any documents incorporated by reference therein pursuant
to Item 13 of Form S-4 under the
6
Securities Act, as of the date of such Prospectus, and any reference to
any amendment or supplement to the Prospectus shall be deemed to refer
to and include any documents filed with the Commission under the
Exchange Act after the date of the Prospectus and incorporated by
reference in the Prospectus).
(g) In making and consummating the Exchange Offer, the Company
will comply fully in a timely manner with the applicable provisions of
the Securities Act, the Exchange Act and any other applicable laws,
regulations and requirements.
(h) The Company will make generally available to its security
holders as soon as practicable an earnings statement that will satisfy
the provisions of Section 11(a) of the Securities Act covering a
twelve-month period beginning not later than the first day of the
Company's fiscal quarter next following the effective date of the
Registration Statement.
(i) The Company will use its commercially reasonable efforts
to do and perform all things required to be done and performed by it
under this Agreement that are within its control prior to or after the
Exchange Date.
9. In addition to the other representations and warranties made by the
Company contained in this Agreement, the Company represents and warrants to you,
and agrees with you, on each of the commencement date and the expiration date of
the Exchange Offer and the Exchange Date and on the date of filing with the
Commission of any post-effective amendment to the Registration Statement and
during the period of the Exchange Offer, that:
(a) the Exchange Offer Material (other than the Prospectus and
the Registration Statement, which are covered below) (i) complies or
will comply in all material respects with the applicable requirements
of the Securities Act, the Exchange Act, the Trust Indenture Act of
1939, as amended (together with rules and regulations promulgated by
the Commission thereunder, the "Trust Indenture Act"), and all
applicable rules or regulations of the Commission and any Other Agency,
including applicable "blue sky" or similar securities laws and (ii) did
not and will not contain an untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under
which they were made, not misleading;
(b) at the respective times the Registration Statement and any
post-effective amendment thereto become effective and at the Exchange
Date, the Registration Statement and any amendments thereto will comply
in all material respects with the applicable requirements of the
Securities Act and the Trust Indenture Act and will not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and none of the Prospectus nor any other
Exchange Offer Material, in each case at the time it is issued and on
the Exchange Date, will contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements made therein, in the light of the
circumstances under which they are made, not misleading; provided,
however, that this representation and warranty shall not apply to
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any statements or omissions made in reliance on and in conformity with
information you furnish to the Company in writing expressly for use
therein (provided, further, that the Company acknowledges that the only
information to be so furnished by you is the name, address and
telephone numbers of X.X. Xxxxxx Securities Inc., as Dealer Manager);
(c) each preliminary prospectus and prospectus filed as part
of the Initial Registration Statement or filed as part of any amendment
thereto or to the Registration Statement, or filed with the Commission
pursuant to Rule 424(b) under the Securities Act, complied when so
filed in all material respects with the applicable requirements of the
Securities Act and the Trust Indenture Act and each preliminary
prospectus and the copies of the Prospectus delivered to the Dealer
Manager for use in connection with the Exchange Offer will, at the time
of such delivery, be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to Regulation S-T
promulgated by the Commission, except to the extent permitted by
Regulation S-T;
(d) the documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all material
respects to the applicable requirements of the Exchange Act, and none
of such documents contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; no forward-looking statement (within the meaning of
Section 27A of the Securities Act or Section 21E of the Exchange Act)
contained or incorporated by reference in the Prospectus has been made
or reaffirmed without a reasonable basis or has been disclosed other
than in good faith; and the Company has timely filed all reports
required pursuant to Section 13 or Section 15(d) of the Exchange Act
during the preceding twelve months;
(e) the financial statements, and the related notes thereto,
of the Company included or incorporated by reference in the Prospectus
present fairly, in all material respects, the consolidated financial
position of the Company and its consolidated subsidiaries as of the
dates indicated and the results of their operations and the changes in
their consolidated cash flows for the periods specified; and said
financial statements have been prepared in conformity with generally
accepted accounting principles and practices applied on a consistent
basis, except as described in the notes to such financial statements;
and the supporting schedules incorporated by reference in the
Prospectus present fairly the information required to be stated
therein; and the other financial and statistical information and any
other financial data included or incorporated by reference in the
Prospectus present fairly, in all material respects, the information
purported to be shown thereby at the respective dates or for the
respective periods to which they apply and, to the extent that such
information is set forth in or has been derived from the financial
statements and accounting books and records of the Company, have been
prepared on a basis consistent with such financial statements and the
books and records of the Company;
(f) since the respective dates as of which information is
given in the Prospectus: there has not been any change in the capital
stock or long-term debt of the
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Company or any of its subsidiaries which are "significant subsidiaries"
within the meaning of Regulation S-X promulgated under the Securities
Act (each, a "Significant Subsidiary" and collectively, the
"Significant Subsidiaries") or any issuance of any options, warrants,
convertible securities or rights to purchase capital stock of the
Company or any of the Significant Subsidiaries, or any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the business, properties, management, condition
(financial or other), results of operations or business prospects of
the Company and its subsidiaries, taken as a whole, otherwise than as
set forth or contemplated in the Prospectus and except for the exercise
of previously outstanding stock options pursuant to their terms; the
Company has not declared or paid any dividends or made any distribution
of any kind with respect to its capital stock; neither the Company nor
any of its subsidiaries has sustained any material loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor disturbance or
dispute or court or governmental action, order or decree; and except as
set forth, incorporated by reference or contemplated in the Prospectus
neither the Company nor any of its subsidiaries has entered into any
transaction or agreement (whether or not in the ordinary course of
business) material to the Company and its subsidiaries, taken as a
whole;
(g) the Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, other than where the
failure to be so qualified or in good standing would not, individually
or in the aggregate, have a material adverse effect on the business,
properties, management, condition (financial or other), results of
operations or business prospects of the Company and its subsidiaries,
taken as a whole (a "Material Adverse Effect");
(h) each of the Significant Subsidiaries has been duly
organized and is validly existing as a corporation under the laws of
its jurisdiction of incorporation, or is a limited partnership, limited
liability company or unlimited liability company duly formed and
validly existing in its jurisdiction of organization, as the case may
be, with power and authority (corporate, partnership or other) to own
its properties and conduct its business as described in the Prospectus,
and has been duly registered and qualified for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business, so as to require such qualification, other than where the
failure to be so qualified or in good standing would not, individually
or in the aggregate, have a Material Adverse Effect; all the
outstanding shares of capital stock of, or the partnership or other
ownership interests in, each Significant Subsidiary (i) have been duly
authorized and validly issued, (ii) are fully paid and nonassessable,
except, in the case of a Significant Subsidiary that is a limited
partnership or an unlimited liability company, as such nonassessability
may be affected by the partnership agreement or other organizational
documents of such Significant Subsidiary or the partnership or
unlimited liability company law of the jurisdiction of the
9
formation of such Significant Subsidiary, and (iii) (except in the case
of foreign subsidiaries, for directors' qualifying shares) are owned by
the Company, directly or indirectly, free and clear of all liens,
encumbrances, security interests and claims; and except as disclosed in
the Prospectus, there are no outstanding subscriptions, rights,
warrants, options, calls, convertible or exchangeable securities,
commitments of sale, or any security interest, mortgage, pledge, claim,
lien, equity, encumbrance or adverse interest of any nature related to
or entitling any person to purchase or otherwise to acquire any shares
of the capital stock of, or other ownership interests in, any
Significant Subsidiary (other than pledges of shares made pursuant to
the terms of the Company's existing senior credit facility described in
the Prospectus);
(i) the Company has corporate power and authority to take and
has duly taken all necessary corporate action to authorize (i) the
Exchange Offer, (ii) the issuance of New Notes, (iii) the exchange by
the Company of New Notes for Existing Notes pursuant to the Exchange
Offer, (iv) the consummation of the other transactions contemplated by
the Exchange Offer Material and (v) the execution, delivery and
performance of this Agreement and all related documents;
(j) this Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company, enforceable in accordance with its terms;
(k) the Company had, at the date indicated in the Prospectus,
a duly authorized, issued and outstanding capitalization as set forth
in the Prospectus under the caption "Capitalization," and all the
authorized capital stock of the Company conforms as to legal matters in
all material respects to the description thereof contained in the
Prospectus; there are no outstanding options to purchase, or any rights
or warrants to subscribe for, or any securities or obligations
convertible into, or any contracts or commitments to issue or sell, any
shares of Common Stock, any shares of capital stock of any subsidiary,
or any such warrants, convertible securities or obligations, except as
set forth in the Prospectus and except for options granted under, or
contracts or commitments pursuant to, the Company's previous or
currently existing stock option and other similar officer, director or
employee benefit plans; except for this Agreement and any officer,
director or employee stock purchase plans, there are no contracts,
commitments, agreements, arrangements, understandings or undertakings
of any kind to which the Company is a party, or by which it is bound,
granting to any person the right to require either the Company to file
a registration statement under the Securities Act with respect to any
securities of the Company or requiring the Company to include such
securities with the New Notes registered pursuant to any registration
statement;
(l) the shares of Common Stock outstanding on the date hereof
have been duly authorized and are validly issued, fully paid and
nonassessable and were not issued in violation of any preemptive or
similar rights of any stockholder of the Company; and the form of
certificate for the shares of Common Stock conforms to the requirements
of the Delaware General Corporation Law;
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(m) the New Notes have been duly authorized by the Company,
and when duly executed, authenticated, issued and delivered as provided
in the Indenture relating the New Notes (the "Indenture") to be entered
into by the Company and The Bank of New York, as Trustee (the
"Trustee"), assuming due authentication of the New Notes by the
Trustee, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with its terms, subject
to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights
and remedies generally, and subject, as to enforceability, to general
principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity); and the New
Notes will conform to the descriptions thereof in the Exchange Offer
Material;
(n) the Indenture has been duly authorized by the Company, and
when executed and delivered by the Company (assuming the authorization,
execution and delivery by the Trustee) will be a valid and binding
instrument of the Company, enforceable against the Company in
accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally, and
subject, as to enforceability, to general principles of equity,
including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at
law or in equity); and the Indenture will (i) comply with all
applicable provisions of the Trust Indenture Act, (ii) be duly
qualified under the Trust Indenture Act prior to the expiration of the
Exchange Offer and (iii) conform to the description thereof in the
Exchange Offer Material;
(o) the Shares reserved for issuance upon conversion of the
New Notes have been duly authorized and reserved and, when issued upon
conversion of the New Notes in accordance with the terms of the New
Notes, will be validly issued, fully paid and nonassessable, and the
issuance of the Shares will not be subject to any preemptive or similar
rights; and, prior to the expiration of the Exchange Offer, the Shares
shall have been approved for listing on the NYSE;
(p) (i) neither the Company nor any of its Significant
Subsidiaries is, or with the giving of notice or lapse of time or both
would be, in violation of or in default under, its certificate of
incorporation or bylaws (or other organizational documents) or under
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of the Significant
Subsidiaries is a party or by which it or any of them or any of their
respective properties is bound, except for violations and defaults
which individually or in the aggregate are not material to the Company
and its subsidiaries, taken as a whole, or to the holders of the New
Notes; (ii) neither the Company nor any of the subsidiaries is a party
to any contract, agreement or understanding with any person (other than
this Agreement) that would give rise to a valid claim against any of
them or the Dealer Manager for a brokerage commission, finder's fee or
like payment in connection with the Exchange Offer, the issuance of the
New Notes, the exchange of New Notes for Existing Notes pursuant to the
Exchange Offer or the
11
issuance of the Shares; (iii) the Exchange Offer, the issuance of the
New Notes, the exchange of New Notes for Existing Notes pursuant to the
Exchange Offer, the issuance by the Company of the Shares upon
conversion of the New Notes and the performance by the Company of all
its obligations under the New Notes, the Indenture and this Agreement
and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of the Significant
Subsidiaries under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any
of the Significant Subsidiaries is a party or by which the Company or
any of the Significant Subsidiaries is bound or to which any of the
property or assets of the Company or any of the Significant
Subsidiaries is subject, nor will any such action result in any
violation of the provisions of the certificate of incorporation or the
bylaws or other organizational documents of the Company or any of the
Significant Subsidiaries or any applicable law or statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company, the Significant Subsidiaries or any of
their respective properties or other assets; and (iv) except as
expressly contemplated hereby, no consent, approval, authorization,
order, license, registration or qualification of or with any such court
or governmental agency or body is required in connection with the
execution, delivery and performance of this Agreement by the Company,
the making or consummation by the Company of the Exchange Offer, the
issuance of the New Notes, the exchange of New Notes for Existing Notes
pursuant to the Exchange Offer or the consummation of the other
transactions contemplated by this Agreement, the Indenture, the
Exchange Offer or the Exchange Offer Material, except such consents,
approvals, authorizations, orders, licenses, registrations or
qualifications as have been or will be obtained under the Securities
Act, the Exchange Act, the Trust Indenture Act or state securities or
Blue Sky Laws in connection with the issuance of the New Notes;
(q) no stop order, restraining order or denial of an
application for approval has been issued and no investigation,
proceeding or litigation has been commenced or, to the Company's
knowledge, after due inquiry, contemplated before the Commission or any
Other Agency with respect to the making or consummation of the Exchange
Offer, the effectiveness of the Registration Statement, the offer,
issuance, delivery or exchange of the New Notes pursuant to the
Exchange Offer or the consummation of the other transactions
contemplated by this Agreement, the Exchange Offer or the Exchange
Offer Material;
(r) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental investigations, actions, suits or
proceedings pending or, to the knowledge of the Company, threatened,
against or affecting the Company or any of its subsidiaries or any of
their respective properties or to which the Company or any of its
subsidiaries is or may be a party or to which any property of the
Company or any of its subsidiaries is or may be the subject which are
required to be disclosed in the Prospectus but are not so disclosed or
which, if determined adversely to the Company or any of its
subsidiaries, could have, or reasonably be expected to have,
individually or in the
12
aggregate, (i) a Material Adverse Effect or (ii) a material adverse
effect on the consummation of the transactions contemplated in this
Agreement; the aggregate of all pending legal and governmental
proceedings that are not described in the Prospectus to which the
Company or any of its subsidiaries is a party or which affect any of
their respective properties and in which there is a reasonable
possibility of an adverse decision, including ordinary routine
litigation incidental to the business of the Company or any Significant
Subsidiary, would not, individually or in the aggregate, have a
Material Adverse Effect; and, to the best of the Company's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others; and there are no contracts or
other documents of the Company or any of its subsidiaries which are
required by the Securities Act or the Exchange Act to be filed as
exhibits to the Registration Statement which have not been so filed;
(s) each of this Agreement, the Exchange Offer and the New
Notes conforms in all material respects to the descriptions thereof
contained in the Exchange Offer Material;
(t) the Company is not, and after giving effect to the
consummation of the Exchange Offer, will not be required to register as
an "investment company," as such term is defined in the Investment
Company Act of 1940, as amended;
(u) Ernst & Young LLP, who have certified the consolidated
financial statements of the Company as of December 31, 2003, are an
independent registered accounting firm with respect to the Company, as
required under the Securities Act;
(v) the Company and the Significant Subsidiaries have filed
all federal, state, local and foreign tax returns which have been
required to be filed and have paid all taxes shown thereon and all
assessments received by them or any of them to the extent that such
taxes have become due and are not being contested in good faith, except
where the failure to do so would not, individually or in the aggregate,
have a Material Adverse Effect; and, except as disclosed in the
Prospectus, there is no tax deficiency which has been or might
reasonably be expected to be asserted or threatened against the Company
or any subsidiary;
(w) no labor disputes exist with employees of the Company or
any of the Significant Subsidiaries which could reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect;
(x) each of the Company and its subsidiaries is in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health or the
environment or imposing liability or standards of conduct concerning
any Hazardous Material (collectively, "Environmental Laws"), except
where such noncompliance with Environmental Laws could not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect (the term "Hazardous Material" means (i) any
"hazardous substance" as defined by the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as
13
amended ("CERCLA"), (ii) any "hazardous waste" as defined by the
Resource Conservation and Recovery Act of 1976, as amended ("RCRA"),
(iii) any petroleum or petroleum product, (iv) any polychlorinated
biphenyl, and (v) any pollutant or contaminant or hazardous, dangerous,
or toxic chemical, material, waste or substance regulated under or
within the meaning of any other Environmental Law); there is no pending
or, to the knowledge of the Company, threatened civil or criminal
litigation, notice of violation, warning letter or administrative
proceeding relating in any way to the Environmental Laws (including,
without limitation, notices, demand letters or claims under RCRA,
CERCLA, as amended by the Superfund Amendments Reauthorization Act of
1987 ("XXXX"), the Toxic Substances Control Act of 1976, the Emergency
Planning and Community Right-to-Know Act of 1986, the Clean Water Act
of 1977, and the Clear Air Act of 1966, all as amended, and similar
foreign, state, or local laws) involving the Company; and there have
not been and there are not any past, present, or anticipated future
events, conditions, circumstances, activities, practices, incidents,
actions or plans involving the Company or any of its subsidiaries which
may interfere with or prevent continued compliance, or which may give
rise to any common law or other liability, or otherwise form the basis
of any present or future claim, action, demand, suit, proceeding,
hearing, study or investigation, based on or related to the
manufacture, processing, distribution, use, treatment, storage,
disposal, arrangement for disposal, transport, arrangement for
transport or handling, or the emission, discharge, release, or
threatened release into the environment, of any pollutant, contaminant,
chemical or industrial, hazardous or toxic material or waste,
including, without limitation, any liability arising, or any claim,
action, demand, suit, proceeding, hearing, study or investigation which
may be brought, under RCRA, CERCLA, XXXX, or similar foreign, state,
regional, county, or local laws, except for such events, conditions,
circumstances, activities, practices, incidents, actions and plans
which would not, individually or in the aggregate, have a Material
Adverse Effect;
(y) each of the Company and its subsidiaries owns or possesses
the right to use the patents, patent licenses, trademarks, service
marks, trade names, copyrights and know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) (collectively, the "Intellectual
Property") reasonably necessary to carry on the business conducted by
each as conducted on the date hereof, except to the extent that the
failure to own or possess the right to use such Intellectual Property
could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect, and, except as disclosed in the
Prospectus, neither the Company nor any of its subsidiaries has
received any notice of infringement of or conflict with asserted rights
of others with respect to any Intellectual Property, except for notices
the content of which if accurate could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect;
(z) the Company and each of its subsidiaries have all
licenses, franchises, permits, authorizations, approvals and orders of
and from all governmental and regulatory officials and bodies
("Permits") that are necessary to own or lease and operate their
properties and conduct their businesses as described in the Prospectus
and that are material in relation to the business of the Company and
its subsidiaries, taken as a whole;
14
each of the Company and its subsidiaries has fulfilled and performed
all of its material obligations with respect to such Permits and no
event has occurred which allows, or after notice or lapse of time would
allow, revocation or termination thereof or results in any other
material impairment of the rights of the holder of any such Permit,
subject in each case to such qualification as may be set forth in the
Prospectus; and, except as described in the Prospectus, none of such
Permits contains any restriction that is materially burdensome to the
Company or any of its subsidiaries;
(aa) the Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title
to all personal property owned by them which is material to the
business of the Company and its subsidiaries, in each case free and
clear of all liens, encumbrances and defects except such as are
described in the Prospectus or such as do not interfere with the use
made and proposed to be made of such property by the Company and its
subsidiaries and would not, individually or in the aggregate, have a
Material Adverse Effect; and any real property and buildings held under
lease by the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases, with such exceptions as are not
material and do not interfere with the use made and proposed to be made
of such property and buildings by the Company and its subsidiaries, in
each case except as described in or contemplated by the Prospectus;
(bb) except as may be disclosed in the Prospectus, the Company
and its subsidiaries are in compliance with all presently applicable
provisions of the Employee Retirement Income Security Act of 1974, as
amended, including the regulations and published interpretations
thereunder ("ERISA"), except where the failure to be in such compliance
would not, individually or in the aggregate, have a Material Adverse
Effect; no "reportable event" (as defined in ERISA) has occurred with
respect to any "pension plan" (as defined in ERISA) for which the
Company or any of its subsidiaries would have any liability, except
where such liability would not, individually or in the aggregate, have
a Material Adverse Effect; except for matters that would not,
individually or in the aggregate, have a Material Adverse Effect,
neither the Company nor any of its subsidiaries has incurred or expects
to incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan" or (ii) Section
412 or 4971 of the Internal Revenue Code of 1986, as amended, including
the regulations and published interpretations thereunder ("Code"); and
each "pension plan" for which the Company or any of its subsidiaries
would have any liability that is intended to be qualified under Section
401(a) of the Code is so qualified in all material respects and nothing
has occurred, whether by action or by failure to act, which would
reasonably be expected to cause the loss of such qualification; and no
"prohibited transaction" (as defined in Section 406 of ERISA or Section
4975 of the Code) or "accumulated funding deficiency" (as defined in
section 302 of ERISA) has occurred with respect to any of the plans
maintained or contributed to by the Company or any of its subsidiaries;
(cc) the Company and its subsidiaries (i) maintain a system of
internal accounting controls sufficient to provide reasonable
assurances that (A) transactions are executed in accordance with
management's general or specific authorization, (B) transactions are
recorded as necessary to permit preparation of financial statements in
15
conformity with generally accepted accounting principles and to
maintain accountability for assets, (C) access to assets is permitted
only in accordance with management's general or specific authorization
and (D) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences, and (ii) maintain an effective system
of "disclosure controls and procedures" (as such term is defined in
Rule 13a-14(c) under the Exchange Act); and neither the Company nor any
of its subsidiaries has, directly or indirectly, at any time during the
past five years (i) made any unlawful contribution to any candidate for
political office, or failed to disclose fully any contribution in
violation of law, or (ii) made any payment to any federal, state or
foreign governmental official, or other person charged with similar
public or quasi-public duties, other than payments required or
permitted by the laws of the United States or any jurisdiction thereof
or applicable foreign jurisdictions;
(dd) except to the extent disclosed in the Prospectus, there
is and has been no failure on the part of the Company or any of the
Company's directors or officers, in their capacities as such, to comply
in any material respect with any applicable provision of the Sarbanes
Oxley Act of 2002 and the rules and regulations promulgated in
connection therewith, including Section 402 related to loans and
Sections 302 and 906 related to certifications;
(ee) the information set forth in Item 3 of Part I of the
Company's Annual Report on Form 10-K/A for the year ended December 31,
2003 is correct in all material respects and fairly and correctly
presents the information called for with respect thereto in all
material respects;
(ff) each contract, agreement or arrangement to which the
Company or any of its subsidiaries is a party or by which it is bound,
or to which any of the property or assets of the Company or any of its
subsidiaries is subject, which is material to the condition (financial
or other), business, prospects, properties, net worth or results of
operations of the Company and its subsidiaries, taken as a whole, has
been duly and validly authorized, executed and delivered by the Company
or any such subsidiary, as applicable; the Company knows of no present
condition or fact which would prevent compliance by the Company or any
of its subsidiaries or any other party thereto with the terms of any
such contract, agreement or arrangement, in all material respects;
neither the Company nor any of its subsidiaries has any present
intention to exercise any rights that it may have to cancel any such
contract, agreement or arrangement, or otherwise to terminate its
rights and obligations thereunder, and none of them has any knowledge
that any other party to any such contract, agreement or arrangement has
any intention not to render full performance in all material respects
as contemplated by the terms thereof;
(gg) each of the Company and its subsidiaries is insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the
businesses in which it is engaged; and neither the Company nor any of
its subsidiaries has reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires
or to obtain similar
16
coverage from similar insurers as may be necessary to continue its
business at a comparable cost, except as disclosed in the Prospectus;
(hh) The Company has not taken and will not take, directly or
indirectly, any action prohibited by Regulation M promulgated under the
Exchange Act or designed to, or that might reasonably be expected to,
cause or result in stabilization or manipulation of the price of the
Common Stock to facilitate the distribution of the Exchange Notes in
the Exchange Offer; and
(ii) each of the representations and warranties contained in
this Agreement will continue to be true and correct at the commencement
of, at all times during the continuance of and upon the consummation of
the Exchange Offer.
10. Your obligation to render services pursuant to this Agreement shall
at all times be subject, in your discretion, to the following conditions:
(a) at all times from the commencement date of the Exchange
Offer, to and including the Exchange Date, the Company shall have
performed in all material respects all of its obligations hereunder
theretofore to be performed, and all representations, warranties and
other statements of the Company contained in this Agreement shall be
true and correct; and the Company acknowledges that your agreement to
act or to continue to act as Dealer Manager at a time when you know or
should know that any such representation, warranty and agreement is or
may be untrue or incorrect or not performed, as the case may be, shall
be without prejudice to your right subsequently to cease so to act by
reason of such untruth, incorrectness or nonperformance, as the case
may be;
(b) you shall have received on and as of the Exchange Date a
certificate of an executive officer of the Company, with specific
knowledge about the Company's financial matters, satisfactory to you to
the effect set forth in Section 10(a) and to the further effect that,
except as set forth in the Prospectus (excluding any amendment or
supplement thereto), there has not occurred any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the business, properties, management, condition
(financial or other), results of operations or business prospects of
the Company and its subsidiaries, taken as a whole, since the date of
the most recent financial statements included or incorporated by
reference in the Prospectus (excluding any amendment or supplement
thereto);
(c) since the respective dates as of which information is
given in the Prospectus (excluding any amendment or supplement
thereto), there shall not have been any (i) change in the capital stock
or long-term debt of the Company or any of the Subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the business, properties,
management, condition (financial or other), results of operations or
business prospects of the Company and its subsidiaries, taken as a
whole, otherwise than as set forth or contemplated in the Prospectus
(excluding any amendment or supplement thereto); or (ii) any suspension
or material limitation of trading in the Common Stock on the NYSE, the
effect of which, in
17
any case referred to in clause (i) or (ii), makes it impracticable or
inadvisable, in the judgment of the Dealer Manager, to exchange the New
Notes for the Existing Notes on the terms and in the manner the
Prospectus (excluding any amendment or supplement thereto)
contemplates;
(d) Gallop Xxxxxxx & Xxxxxx, X.X., outside counsel for the
Company, shall have furnished to you its written opinions, dated the
commencement date of the Exchange Offer and the Exchange Date, in form
and substance satisfactory to you, to the effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with full corporate power and
authority to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in
which it owns or leases properties, or conducts any business,
so as to require such qualification, other than where the
failure to be so qualified or in good standing would not,
individually or in the aggregate, have a Material Adverse
Effect;
(ii) each of the Significant Subsidiaries has been
duly incorporated and is validly existing as a corporation
under the laws of its jurisdiction of incorporation, or is a
limited partnership, limited liability company or unlimited
liability company duly formed and validly existing in its
jurisdiction of organization, as the case may be, with full
corporate, limited partnership, limited liability or unlimited
liability (as applicable) power and authority to own its
properties and conduct its business as described in the
Prospectus, and has been duly registered and qualified for the
transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases
properties or conducts any business, so as to require such
qualification, other than where the failure to be so qualified
and in good standing would not, individually or in the
aggregate, have a Material Adverse Effect; and all of the
outstanding shares of capital stock of, or the partnership,
limited liability company or unlimited liability company
ownership interests in, each Significant Subsidiary (A) have
been duly authorized and validly issued, (B) are fully paid
and nonassessable, except, in the case of a Significant
Subsidiary that is a limited partnership or an unlimited
liability company, as such nonassessability may be affected by
the partnership agreement or other organizational documents of
such Significant Subsidiary or the partnership or unlimited
liability company law of the jurisdiction of the formation of
such Significant Subsidiary, and (C) (except in the case of
foreign subsidiaries, for directors' qualifying shares and
except for any pledge by the Company to its principal lenders
of the capital stock of certain of its Significant
Subsidiaries) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims;
(iii) neither the Company nor any of the Significant
Subsidiaries is, or with the giving of notice or lapse of
time, or both, would be, in violation of or in
18
default under, its certificate of incorporation or bylaws (or
other organizational documents) or any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument
known to such counsel to which the Company or any of the
Significant Subsidiaries is a party or by which it or any of
them or any of their respective properties is bound, except
for violations and defaults which individually and in the
aggregate are not material to the Company and its
subsidiaries, taken as a whole, or to the holders of the New
Notes;
(iv) to the best of such counsel's knowledge after
diligent inquiry, other than as set forth, incorporated by
reference or contemplated in the Prospectus, there are no
legal or governmental proceedings pending or threatened to
which the Company or any of its subsidiaries is or is
threatened to be named as a party or to which any property of
the Company or its subsidiaries is or is threatened to be the
subject which are required to be disclosed in the Prospectus
but are not so disclosed or which, if determined adversely to
the Company or any of such subsidiaries, could reasonably be
expected to have, individually or in the aggregate, a Material
Adverse Effect; and, to the best of such counsel's knowledge,
no such proceedings are threatened by governmental authorities
or others;
(v) the authorized capital stock of the Company
conforms as to legal matters to the description thereof
contained in the Prospectus;
(vi) the shares of Common Stock outstanding on the
date of such opinion have been duly authorized and are validly
issued, fully paid and nonassessable;
(vii) the Company has all requisite corporate power
and authority to execute and deliver this Agreement, to issue
the New Notes, to exchange the New Notes for Existing Notes
pursuant to the Exchange Offer, and to perform its obligations
hereunder, under the New Notes and in connection with the
Exchange Offer; the execution, delivery and performance of
this Agreement by the Company has been duly authorized by all
necessary corporate action on the part of the Company; and
this Agreement has been duly and validly executed and
delivered by the Company;
(viii) the New Notes have been duly authorized and,
when executed by the Company and authenticated by the Trustee
in accordance with the terms of the Indenture and delivered in
accordance with the terms of the Exchange Offer and the
Indenture, will be legal, valid and binding obligations of the
Company, entitled to the benefits of the Indenture, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity);
19
(ix) the Shares reserved for issuance upon conversion
of the New Notes have been duly authorized and reserved and,
when issued upon conversion of the New Notes in accordance
with the terms of the New Notes, will be validly issued, fully
paid and nonassessable and the issuance of the Shares will not
be subject to any preemptive or similar rights under the
Company's certificate of incorporation or bylaws or under the
Delaware General Corporation Law, and will conform in all
material respects to the description thereof in the Prospectus
under the caption "Description of capital stock";
(x) the Company has all requisite corporate power and
authority to execute and deliver the Indenture and perform its
obligations thereunder; the execution and delivery of the
Indenture has been authorized by all necessary corporate
action on the part of the Company; the Indenture has been duly
executed and delivered by the Company and (assuming the due
authorization, execution and delivery thereof by the Trustee)
constitutes a legal, valid and binding obligation of the
Company, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar
laws affecting creditors' rights and remedies generally, and
subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether enforcement
is sought in a proceeding at law or in equity); and the
Indenture has been duly qualified under the Trust Indenture
Act (provided that such counsel need not express an opinion as
to such qualification of the Indenture in the written opinion
dated the date hereof);
(xi) each of this Agreement, the Indenture, the
Exchange Offer and the New Notes conform in all material
respects to the description thereof contained in the
Prospectus;
(xii) no consent, approval, authorization, order,
license, registration or qualification of or with any court or
governmental agency or body is required in connection with the
execution, delivery and performance of this Agreement by the
Company, the making or consummation by the Company of the
Exchange Offer, the issuance of the New Notes, the exchange of
New Notes for Existing Notes pursuant to the Exchange Offer or
the consummation of the other transactions contemplated by
this Agreement, the Indenture, the Exchange Offer or the
Exchange Offer Material, except such consents, approvals,
authorizations, orders, licenses, registrations or
qualifications as are expressly contemplated hereby or as may
be required under state securities or Blue Sky Laws in
connection with the issuance of the New Notes (other than
federal securities laws, as to which such counsel expresses no
opinion in this subparagraph);
(xiii) none of the Exchange Offer, the issuance of
the New Notes, the exchange of New Notes for Existing Notes
pursuant to the Exchange Offer, the issuance by the Company of
the Shares upon conversion of the New Notes and the
performance by the Company of all its obligations under the
New Notes, the
20
Indenture and this Agreement or the consummation of the
transactions herein and therein contemplated will conflict
with, result in a breach or violation of, or constitute a
default under (A) the certificate of incorporation or bylaws
(or other organizational documents) of the Company or any of
the Significant Subsidiaries, (B) the terms of any indenture
or other agreement or instrument to which the Company or any
of its subsidiaries is a party or by which it is bound that is
material to the Company and its subsidiaries considered as a
whole and that (1) relates to indebtedness of the Company or
(2) is filed or incorporated by reference as an exhibit to the
Company's Annual Report on Form 10-K/A for the year ended
December 31, 2003 or any subsequent Quarterly Report on Form
10-Q, (C) any statute, rule or regulation applicable to the
Company or any of its subsidiaries, or applicable to any of
the properties of the Company or any of its subsidiaries, or
(D) any order of which such counsel has knowledge of any court
or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties;
(xiv) neither the Company nor any of its subsidiaries
is and, after giving effect to the consummation of the
Exchange Offer, will be required to register as an "investment
company," as defined in the Investment Company Act of 1940, as
amended;
(xv) the statements (A) in the Prospectus under the
caption "Description of new notes," (B) incorporated by
reference in the Prospectus from Item 3 of Part I of the
Company's Annual Report on Form 10-K/A for the fiscal year
ended December 31, 2003, (C) incorporated by reference in the
Prospectus from Item 1 of Part II of the Company's Quarterly
Reports on Form 10-Q filed since such Annual Report, and (D)
incorporated by reference in the Prospectus from Item 1.01,
Item 5 or Item 5.01 of the Company's Current Reports on Form
8-K filed since such Annual Report, insofar as such statements
constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present, in all
material respects, the information called for with respect to
such legal matters, documents or proceedings;
(xvi) although the discussion set forth in the
Prospectus under the heading "Material United States federal
income tax consequences" does not purport to discuss all
possible United States federal income tax consequences of the
Exchange Offer, the ownership of New Notes, and the
disposition of New Notes or shares of Common Stock issuable
upon conversion thereof, in such counsel's opinion, such
discussion constitutes, in all material respects, a fair and
accurate summary of the United States federal income tax
consequences of the Exchange Offer, the ownership of New
Notes, and the disposition of New Notes or shares of Common
Stock issuable upon conversion thereof by the holders
addressed therein, based upon current law and subject to the
qualifications set forth therein;
21
(xvii) the Registration Statement, when it became
effective (except for (A) the financial statements and related
schedules included therein and (B) the other financial data
derived from any such financial statements or schedules
included or incorporated by reference in the Registration
Statement or omitted therefrom, as to which such counsel need
express no opinion), complied as to form in all material
respects with the applicable requirements of the Securities
Act;
(xviii) each preliminary prospectus or prospectus
filed as part of the Initial Registration Statement or as part
of any amendment thereto or to the Registration Statement, or
filed with the Commission pursuant to Rule 424(b) under the
Securities Act (except for (A) the financial statements and
related schedules included therein and (B) the other financial
data derived from any such financial statements or schedules
included or incorporated by reference in such preliminary
prospectus or prospectus or omitted therefrom, as to which
such counsel need express no opinion), complied as to form
when so filed in all material respects with the applicable
requirements of the Securities Act and the Trust Indenture
Act;
(xix) the documents incorporated by reference in the
Prospectus, when they became effective or were filed (or, if
an amendment with respect to any such document was filed or
became effective, when such amendment was filed or became
effective) with the Commission (except for (A) the financial
statements and related schedules included therein and (B) the
other financial data derived from any such financial
statements or schedules included or incorporated by reference
in such incorporated documents or omitted therefrom, as to
which such counsel need express no opinion), complied as to
form in all material respects with the applicable requirements
of the Securities Act, the Exchange Act and the Trust
Indenture Act, as applicable; and
(xx) such counsel confirms that, during the
preparation of the Registration Statement, such counsel
participated in conferences with representatives of the Dealer
Manager and their counsel, and with officers and
representatives of the Company, at which conferences the
contents of the Registration Statement and the Prospectus were
discussed, reviewed and revised, and that, on the basis of
information which was developed in the course of such
counsel's examination and participation in such conferences,
nothing has come to the attention of such counsel that would
lead such counsel to believe that: (A) as of the effective
date of the Registration Statement and at the Exchange Date,
the Registration Statement and any amendments and supplements
thereto (except for (1) the financial statements and related
schedules included or incorporated by reference therein and
(2) the other financial data derived from any such financial
statements or schedules included or incorporated by reference
in the Registration Statement or omitted therefrom, as to
which such counsel need not comment) contained an untrue
statement of material fact or omitted to state any material
fact required to be stated therein to make the statements
therein not misleading; (B) as
22
of the date the Prospectus was issued or the Exchange Date,
the Prospectus and any supplements thereto (except for (1) the
financial statements and related schedules included or
incorporated by reference therein and (2) the other financial
data derived from any such financial statements or schedules
included or incorporated by reference in the Prospectus or
omitted therefrom, as to which such counsel need not comment)
contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading; or (C) as of its date, any
other Exchange Offer Material (except for (1) the financial
statements and related schedules included or incorporated by
reference therein and (2) the other financial data derived
from any such financial statements or schedules included or
incorporated by reference in such Exchange Offer Material or
omitted therefrom, as to which such counsel need not comment),
when read together with the Prospectus, contained an untrue
statement of a material fact or omitted to state a material
fact necessary in order to make the statement therein, in
light of the circumstances under which they were made, not
misleading;
provided that: (i) in rendering such opinions, such counsel may rely: (A) as to
matters involving the application of laws other than the laws of the United
States and the States of New York and Missouri and the General Corporation Law
of the State of Delaware, to the extent such counsel deems proper and to the
extent specified in such opinion, if at all, upon an opinion or opinions
(reasonably satisfactory to you) of other counsel reasonably acceptable to you,
familiar with the applicable laws; and (B) as to matters of fact, to the extent
such counsel deems proper, on certificates of responsible officers of the
Company and certificates or other written statements of officials of
jurisdictions having custody of documents respecting the corporate existence or
good standing of the Company (provided that the opinion of such counsel for the
Company shall state that the opinion of any such other counsel is in form
satisfactory to such counsel and, in such counsel's opinion, you and they are
justified in relying thereon); (ii) with respect to the matters to be covered in
subparagraph (xx) above, such counsel may state their opinion and belief is
based upon their participation in the preparation of the Registration Statement
and the Prospectus and any amendment or supplement thereto, but is without
independent check or verification except as specified; and (iii) the opinion of
such counsel dated the commencement date of the Exchange Offer shall reflect
such variations from the foregoing provisions of this Section 10(d) as you
reasonably approve, to reflect the fact that the Registration Statement shall
not yet have become effective;
(e) you shall have received such written opinion or opinions
addressed to you, and dated the date hereof and the Exchange Date, of
Xxxxx Xxxxx L.L.P., counsel to the Dealer Manager, with respect to the
such matters as you may reasonably request, and such counsel shall have
received such documents and information as such counsel may reasonably
request to enable such counsel to pass upon such matters;
(f) on the commencement date of the Exchange Offer and on the
Exchange Date, Ernst & Young LLP shall have furnished to you letters,
dated the respective dates of delivery thereof, in form and substance
satisfactory to you, containing statements and information of the type
customarily included in accountants' "comfort letters" to
23
underwriters with respect to the financial statements and certain
financial information contained in the Exchange Offer Material;
(g) the proceedings taken at or prior to the Exchange Date in
connection with the Exchange Offer and any other transactions
contemplated by the Exchange Offer Material shall be in form and
substance satisfactory to you and your counsel;
(h) the Shares issuable upon conversion of the New Notes shall
have been approved for listing on the NYSE;
(i) subsequent to the execution and delivery of this Agreement
and on or prior to the Exchange Date, there shall not have occurred any
downgrading, nor shall any notice have been given of (i) any intended
or potential downgrading or (ii) any review or possible change that
does not indicate an improvement in the rating accorded any securities
of or guaranteed by the Company by any "nationally recognized
statistical rating organization," as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act;
(j) prior to the Exchange Date, the Company shall have
obtained all consents, approvals, authorizations and orders of, and
shall have duly made all registrations, qualifications and filing with,
any court or regulatory authority or other governmental agency or
instrumentality required in connection with the making and consummation
of the Exchange Offer, the other transactions the Exchange Offer
Material contemplates and the execution, delivery and performance of
this Agreement; and
(k) prior to the expiration of the Exchange Offer, the
requisite lenders who are parties to that certain Amended and Restated
Credit Agreement dated as of December 31, 2002 among the Company,
JPMorgan Chase Bank, CIT Business Credit Canada Inc., General Electric
Capital Corporation and the other parties named therein, as amended and
restated to the date hereof (the "Credit Agreement"), shall have
executed and delivered an amendment to the Credit Agreement, in form
and substance reasonably satisfactory to the Dealer Manager, to permit
the consummation of the Exchange Offer on the terms described in the
Prospectus, and such amendment shall have become effective; and
(l) prior to the Exchange Date, the Company shall have
delivered to the Dealer Manager and its counsel such further
information, certificates and documents as they may reasonably request
related to the Exchange Offer or otherwise related to the matters
contemplated hereby.
If (a) any of the conditions specified in this Section 10 shall not have been
fulfilled in all material respects when and as provided in this Agreement or (b)
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be reasonably satisfactory in all material respects in form
and substance to the Dealer Manager and its counsel, this Agreement and all
obligations of the Dealer Manager hereunder may be canceled at, or at any time
prior to, the Exchange Date by the Dealer Manager. The Dealer Manager shall give
notice of such
24
cancellation to the Company in writing or by telephone or fax, in either case
with subsequent confirmation in writing.
11. The Company hereby agrees to indemnify and hold harmless you and
your affiliates, and the respective directors, officers, agents, and employees
of you and your affiliates and each other entity or person, if any, controlling
you or any such affiliates within the meaning of the Securities Act or the
Exchange Act (you and each such entity or person being referred to as an
"Indemnified Person") from and against any and all losses, claims, damages and
liabilities (or actions or proceedings in respect thereof), and to reimburse you
and any other Indemnified Person for all expenses (including, without
limitation, reasonable fees and disbursements of counsel) incurred by you or any
such other Indemnified Person in connection with investigating, preparing, or
defending any such loss, claim, damage, liability, action or proceeding, whether
or not in connection with pending or threatened litigation to which you (or any
other Indemnified Person) may be a party, in each case as such expenses are
incurred or paid, (a) arising out of or based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in the Exchange Offer
Material or any information provided by the Company to any holder of Existing
Notes or prospective purchaser of New Notes or in any amendment thereof or
supplement thereto, or any omission or alleged omission to state therein a
material fact necessary in order to make the statements made therein, in the
light of the circumstances under which they are made, not misleading, (ii) any
withdrawal or termination by the Company of, or failure by the Company to make
or consummate, the Exchange Offer or to purchase any Existing Notes pursuant to
the Exchange Offer or (iii) any breach by the Company of any representation or
warranty or failure to comply with any of the agreements contained herein, or
(b) otherwise arising out of, relating to or in connection with or alleged to
arise out of, relate to or be in connection with the Exchange Offer or your role
in connection therewith; except in the case of clause (b) above for any such
loss, claim, damage, liability, or expense resulting from your gross negligence
or willful misconduct and except in the case of clauses (a)(i) and (b) above for
any such loss, claim, damage, liability, or expense which arises out of or is
based upon (A) any untrue statement or alleged untrue statement of a material
fact contained in the Exchange Offer Material or any amendment thereof or
supplement thereto, or (B) any omission or alleged omission to state therein a
material fact necessary in order to make the statements made therein, in the
light of the circumstances under which they are made, not misleading, if in any
such case such statement or omission was made in reliance on and in conformity
with information furnished in writing by you to the Company expressly for use
therein (provided that the Company acknowledges that the only information to be
so furnished by you is the name, address and telephone numbers of X.X. Xxxxxx
Securities Inc., as Dealer Manager). The foregoing indemnity shall be in
addition to any liability which the Company might otherwise have to you and such
other Indemnified Persons.
Upon receipt by an Indemnified Person of actual notice of a claim,
action, or proceeding against such Indemnified Person in respect of which
indemnity may be sought under this Section 11, such Indemnified Person shall
promptly notify the Company with respect thereto. In addition, an Indemnified
Person shall promptly notify the Company after any action is commenced (by way
of service with a summons or other legal process giving information as to the
nature and basis of the claim) against such Indemnified Person. In any event,
failure to so notify the Company shall not relieve the Company from any
liability which the Company may have on account of this indemnity or otherwise,
except to the extent the Company shall have
25
been materially prejudiced by such failure. The Company will assume the defense
of any litigation or proceeding in respect of which indemnity may be sought
under this Section 11, including the employment of counsel reasonably
satisfactory to you and the payment of the reasonable fees and expenses of such
counsel, in which event, except as provided below, the Company shall not be
liable for the fees and expenses of any other counsel retained by any
Indemnified Person in connection with such litigation or proceeding. In any such
litigation or proceeding the defense of which the Company shall have so assumed,
any Indemnified Person shall have the right to participate in such litigation or
proceeding and to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (a) the
Company and such Indemnified Person shall have mutually agreed in writing to the
retention of such counsel, or (b) representation of both parties by the same
counsel would, in the opinion of counsel to such Indemnified Person, be
inappropriate due to actual or potential differing interests between the Company
and such Indemnified Person. The Company shall not be liable for any settlement
of any litigation or proceeding effected without its prior written consent, but
if settled with such consent or if there be a final judgment for the plaintiff,
the Company agrees to indemnify the Indemnified Person from and against any loss
or liability by reason of such settlement or judgment. The Company will not
settle any claim, action, or proceeding in respect of which indemnity may be
sought under this Section 11, whether or not any Indemnified Person is an actual
or potential party to such claim, action, or proceeding, without your prior
written consent, which shall not be unreasonably withheld.
If the indemnity provided for in the foregoing paragraphs of this
Section 11 is unavailable to or insufficient to hold harmless an Indemnified
Person in respect of any losses, claims, damages, liabilities, or expenses
referred to therein, then the Company, in lieu of indemnifying such Indemnified
Person, agrees to contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages, liabilities, or expenses (a)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and by you from the Exchange Offer, or (b) if the allocation
provided by the foregoing clause (a) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in the foregoing clause (a), but also the relative fault of the Company and
of you in connection with the statements, actions, or omissions which resulted
in such losses, claims, damages, liabilities, or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and by you shall be deemed to be in the same proportion as (a) the maximum
aggregate value of the consideration proposed to be paid by the Company for the
purchase of Existing Notes pursuant to the Exchange Offer, bears to (b) the
maximum aggregate fee proposed to be paid to you pursuant to Section 5 hereof.
The relative fault of the Company and of you (a) in the case of an untrue or
alleged untrue statement of a material fact or an omission or alleged omission
to state a material fact shall be determined by reference to, among other
things, whether such statement or omission relates to information supplied by
the Company or by you and the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent such statement or omission,
and (b) in the case of any other action or omission, shall be determined by
reference to, among other things, whether such action or omission was taken or
omitted to be taken by the Company or by you and the parties' relative intent,
knowledge, access to information, and opportunity to prevent such action or
omission.
26
The Company and you agree that it would not be just and equitable if
contribution pursuant to this Section 11 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages, liabilities, or expenses referred to in the immediately
preceding paragraph shall be deemed to include, subject the limitations set
forth above, any reasonable legal or other expenses reasonably incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim.
12. The indemnity and contribution agreements contained in Section 11
hereof and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect regardless of (a)
any failure to commence, or the withdrawal, termination or consummation of, any
Offer or the termination or assignment of this Agreement, (b) any investigation
made by or on behalf of any Indemnified Person, and (c) any withdrawal by you
pursuant to Section 4 hereof or otherwise.
13. In the event that any provision hereof shall be determined to be
invalid or unenforceable in any respect, such determination shall not affect
such provision in any other respect or any other provision hereof, which shall
remain in full force and effect.
14. This Agreement may be executed in one or more separate
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
15. This Agreement, including any right to indemnity or contribution
hereunder, shall inure to the benefit of and be binding upon the Company, you
and the other Indemnified Persons, and your and their respective successors and
assigns. Nothing in this Agreement is intended, or shall be construed, to give
to any other person or entity any right hereunder or by virtue hereof.
16. The Company agrees that any reference to you or your affiliates in
any Exchange Offer Material, or any other release, publication or communication
to any party outside the Company, is subject to your prior approval. If you
resign or are terminated prior to the dissemination of any Exchange Offer
Material or any other release or communication, no reference shall be made
therein to you without your prior written permission.
17. In connection with your activities hereunder, the Company agrees to
furnish you and your counsel with all information concerning the Company that
you may reasonably deem appropriate and agree to provide you with reasonable
access to the Company's officers, directors, accountants, counsel, consultants
and other appropriate agents and representatives, it being understood that you
will be entitled to rely upon such information supplied by the Company and such
persons without assuming any responsibility for independent investigation or
verification thereof.
18. The Company acknowledges that (a) you are a full service securities
firm engaged in securities trading and brokerage activities, as well as
providing investment banking and financial advisory services and (b) in the
ordinary course of your trading and brokerage activities,
27
you or your affiliates may at any time hold long or short positions, and may
trade or otherwise effect transactions for your or their own account or the
accounts of customers, in debt or equity securities of the Company or any other
company that may be involved in the Exchange Offer.
19. The Company also acknowledges that you may, at your expense, place
an announcement in such newspapers and periodicals as you may choose, stating
that you have acted or are acting as Dealer Manager and financial advisor to the
Company in connection with the Exchange Offer and the transactions contemplated
thereby.
20. This Agreement shall terminate upon the expiration, termination or
withdrawal of the Exchange Offer or upon withdrawal by you as Dealer Manager
pursuant to Section 4 hereof, it being understood that (a) Sections 3 through 6
hereof, Sections 11 through 16 hereof, this Section 20, and Sections 21 through
25 hereof shall survive any termination of this Agreement and (b) Sections 8 and
9 will survive until the expiration of the statute of limitations period under
the governing law of this Agreement. In addition, you shall have the right to
terminate this Agreement if the opinions of counsel specified in Section 10
hereof are not received by you upon request.
21. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to any principles
of conflicts of law thereof that would result in the application of the laws of
any other jurisdiction.
22. The Company hereby (a) submits to the jurisdiction of any New York
state or federal court sitting in the Borough of Manhattan in the city of New
York with respect to any actions and proceedings arising out of or relating to
this Agreement, (b) agrees that all claims with respect to such actions or
proceedings may be heard and determined in such New York state or federal court,
(c) waives the defense of an inconvenient forum, (d) agrees not to commence any
action or proceeding relating to this Agreement other than in a New York state
or federal court sitting in the Borough of Manhattan in the city of New York and
(e) agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law.
23. THE COMPANY HEREBY AGREES ON ITS OWN BEHALF, AND, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS SECURITY HOLDERS, TO WAIVE ANY
RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTER-CLAIM OR ACTION
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (INCLUDING, WITHOUT LIMITATION, THE EXCHANGE OFFER).
24. This Agreement constitutes the entire agreement between the parties
hereto and supersedes all prior agreements, understandings and arrangements,
oral or written, between the parties hereto with respect to the subject matter
hereof. This Agreement may not be amended except in writing signed by each party
to be bound thereby.
25. All notices and other communications required or permitted to be
given under this Agreement shall be in writing and shall be deemed to have been
duly given if delivered
28
personally to the parties hereto as follows:
(a) If to you:
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx, 0xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxx, Managing Director
(b) If to the Company:
Maverick Tube Corporation
00000 Xxxxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
29
Please indicate your willingness to act as Dealer Manager on the terms
set forth herein and your acceptance of the foregoing provisions by signing in
the space provided below for that purpose and returning to us a copy of this
letter, whereupon this letter and your acceptance shall constitute a binding
agreement between us.
Very truly yours,
MAVERICK TUBE CORPORATION
By: /s/ XXXXXX X. XXXXX
------------------------------
Name: Xxxxxx X. Xxxxx
Title: V.P. and C.F.O.
Accepted as of the date first above written:
X.X. XXXXXX SECURITIES INC.
By: /s/ XXXX X. X'XXXX
------------------------------
Name: Xxxx X. X'Xxxx
Title: VP
30
