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EXHIBIT 10.1
DEALER MANAGER AGREEMENT
March 13, 1997
BT SECURITIES CORPORATION
Xxx Xxxxxxx Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Monarch Marking Systems, Inc. (formerly known as Monarch Acquisition
Corp.), a Delaware corporation (the "Company"), proposes to offer (the "Tender
Offer") to the holders of its 12 1/2% Senior Notes due 2003 (the "Notes"), upon
the terms and subject to the conditions set forth in the Offer to Purchase and
Consent Solicitation Statement dated March 13, 1997 (including all information
incorporated by reference therein and exhibits, appendices and attachments
thereto, as amended, modified or supplemented from time to time, the "Offer to
Purchase"), to purchase for cash $100,000,000 in aggregate principal amount of
the outstanding Notes. Concurrently with the Tender Offer, the Company is
soliciting consents (the "Consent Solicitation") from holders of the Notes to
amendments (the "Proposed Amendments") to certain of the provisions in the
indenture governing the Notes (the "Indenture"), as described in the Offer to
Purchase. Upon receipt of the Requisite Supermajority Consents (as defined in
the Offer to Purchase) or, at the option of the Company, the Requisite Majority
Consents (as defined in the Offer to Purchase) from holders of the Notes
("Holders"), the Company and Fleet National Bank (formerly known as Shawmut Bank
Connecticut, National Association), the trustee under the Indenture (the
"Trustee"), will enter into an amendment and/or a supplement to the Indenture
(the "Supplemental Indenture") which will give effect to some or all, as the
case may be, of the Proposed Amendments. Unless otherwise indicated, the use of
the term Tender Offer herein shall be deemed to include the Consent
Solicitation.
The Company hereby confirms its agreement with you as follows:
1. Tender Offer Materials. The Company agrees to furnish you at its
own expense with as many copies as you may reasonably request of the Offer to
Purchase, Letter of Transmittal, Notice of Guaranteed Delivery, Broker/Dealer
Letters, Client Letters and Taxpayer Guidelines (collectively, the "Letters of
Transmittal"). The Offer to Purchase, together with all other attachments
thereto, the Letters of Transmittal, as such materials may be amended, modified
or supplemented from time to time in accordance with the terms hereof and
thereof, are herein collectively referred to as the "Offering Materials".
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The date or dates on which the Offering Materials are first mailed
or otherwise distributed to Holders is hereinafter referred to as the
"Commencement Date".
2. Retention. (a) The Company hereby retains you to act as exclusive
financial advisor and dealer manager (the "Dealer Manager") to the Company in
connection with the Tender Offer, until the earlier of May 31, 1997 or the date
of the consummation of the Tender Offer (such date of consummation, the "Closing
Date"). As financial advisor and Dealer Manager, you agree, in accordance with
customary practice, to perform those services in connection with the Tender
Offer as are customarily performed by investment banking concerns acting in such
roles in connection with tender offers and consent solicitations of a like
nature, including but not limited to soliciting tenders and consents pursuant to
the Tender Offer and Consent Solicitation, communicating generally regarding the
Tender Offer with brokers, dealers, commercial banks, and trust companies and
other persons, including the holders of the Notes, and providing advice to the
Company with respect to the terms and timing of the Tender Offer and assisting
the Company in the preparation of the Offering Materials to the extent that such
documents relate to the terms of the Tender Offer.
(b) Subject to the last sentence of this clause (b), the Company
agrees that any reference to the Dealer Manager in any Offering Materials or in
any press release or other document or communication related to the Tender Offer
or your activities in connection therewith is subject to the Dealer Manager's
prior approval. If the Dealer Manager resigns or its engagement hereunder is
terminated prior to the dissemination of the Offering Materials or any other
release or communication, no reference shall be made therein to the Dealer
Manager. In the event that applicable law requires a reference to any Dealer
Manager, the Company agrees to provide the Dealer Manager with prompt notice of
such requirement to provide the Dealer Manager a reasonable opportunity to seek
an appropriate protective order or other remedy.
(c) The Company authorizes the Dealer Manager to communicate with
any information agent or depositary designated or retained by the Company with
respect to the Tender Offer (respectively, the "Information Agent" and the
"Depositary") regarding the Tender Offer.
(d) In full payment for services rendered and to be rendered
hereunder by the Dealer Manager, the Company agrees to pay the Dealer Manager's
fees and to reimburse the Dealer Manager for expenses as follows:
(i) An aggregate cash fee equal to $3.50 per $1,000
principal amount of Notes validly tendered and purchased
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pursuant to the Tender Offer shall be paid by the Company on the
Closing Date and such fee shall be paid irrespective of the
termination of this Agreement prior to the dates set forth in
Subsection 2(a).
(ii) In addition to the compensation to be paid as provided in
Subsection d(i) hereof, the Company shall pay, without regard to
whether the Tender Offer is consummated, to or on behalf of the
Dealer Manager, promptly as billed, all reasonable out-of-pocket
expenses (including all reasonable fees and expenses of the Dealer
Manager's legal counsel) incurred in connection with the Tender
Offer.
(iii) If the Dealer Manager resigns or the Company terminates the
Dealer Manager's services for any reason prior to the Closing Date,
the Dealer Manager and its legal counsel shall be entitled to
receive all of the amounts provided for in Subsections d(i) and (ii)
hereof up to and including the effective date of such resignation or
termination, as the case may be.
3. Certain Covenants. The Company covenants with you as follows:
(a) The Company will give the Dealer Manager notice of its intention
to amend or supplement any Offering Materials, will furnish the Dealer
Manager with copies of such amendment or supplement, and will not use any
such amendment or supplement to which the Dealer Manager or counsel for
the Dealer Manager shall reasonably object in writing or which is not in
compliance with the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
(b) If, during the Tender Offer, any event occurs as a result of
which it shall, in the reasonable judgment of the Company or its counsel
or the Dealer Manager or its counsel, be necessary to amend or supplement
any of the Offering Materials in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
or, if for any other reason it is necessary, in the reasonable judgment of
any such person, at any time to amend or supplement any of the Offering
Materials to comply in all material respects with the Exchange Act, and
the rules and regulations of the Commission promulgated thereunder or any
other law, rule or regulation, such person shall promptly inform the
Company and the Dealer Manager, and (subject to Section 3(a) above) the
Company shall promptly prepare and furnish copies to you of such
amendments or supplements to such Offering Materials, so that either (i)
the statements in the Offering Materials, as so amended or supplemented,
will
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not, in light of the circumstances under which they were made, be
misleading or (ii) such compliance is effected.
(c) The Company shall comply in all material respects with the
applicable provisions of the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder (the
"Securities Act"), the Exchange Act, and the Trust Indenture Act of 1939,
as amended, and the rules and regulations of the Commission promulgated
thereunder (the "Trust Indenture Act"), in connection with the Offering
Materials, the Tender Offer and the transactions contemplated hereby and
thereby; the Company will take on a timely basis all actions reasonably
necessary or legally required in relation to the Tender Offer and all
other actions contemplated by this Agreement and by the Offering
Materials; and the Company will take all necessary corporate action to
authorize any amendments to or modifications of the Tender Offer.
(d) The Company will notify you, not less than two hours prior
thereto, of the time when it proposes to commence the Tender Offer or,
after commencement, to extend the Tender Offer; will notify you as
promptly as practicable of its receipt of the Requisite Supermajority
Consents and the Requisite Majority Consents; and will notify you as
promptly as practicable following expiration of the Tender Offer on the
Expiration Date (as defined in the Offering Materials), of the aggregate
principal amount of Notes in respect of which a consent and/or tender has
been verified to be in proper form, a consent and/or tender has been
rejected and which are being processed. The Company shall promptly give
you notice of any change in the Expiration Date.
(e) The Company shall advise you promptly of (i) the occurrence of
any event, or the discovery of any fact, which could reasonably be
expected to cause the Company to amend, withdraw or terminate the Tender
Offer, (ii) the occurrence of any event, or the discovery of any fact,
which could reasonably be expected to cause any representation or warranty
contained in this Agreement to be untrue or inaccurate in any material
respect, (iii) the issuance of any comment or order or the taking of any
other action by the Commission or any other governmental or regulatory
agency with respect to the Tender Offer (and, if in writing, will promptly
furnish you a copy thereof), (iv) the occurrence of any event, or the
discovery of any fact, which could reasonably be expected to cause the
Company to amend or supplement any of the Offering Materials, (v) the
issuance or the threatened issuance of any order or the taking of any
other action by any administrative or judicial tribunal or governmental
agency or instrumentality concerning the Tender Offer (and, if in writing,
will promptly
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furnish you a copy thereof) and (vi) any other information relating to the
Tender Offer which you may from time to time reasonably request.
4. Expenses. In addition to the obligation of the Company to
reimburse the Dealer Manager for its reasonable out-of-pocket expenses as
provided in Subsection 2(d)(ii) hereof, the Company agrees to pay all costs and
expenses incident to the performance of its obligations under this Agreement,
whether or not the transactions contemplated herein are consummated or this
Agreement is terminated pursuant to Section 8 hereof, including, but not limited
to, all costs and expenses incident to (i) the printing, word processing or
other production of documents with respect to such transactions, including any
costs of printing the Offering Materials, the Supplemental Indenture and all
other agreements related to the Tender Offer or the distribution of any legal
investment memoranda, (ii) all arrangements relating to the delivery to the
Dealer Manager of copies of the foregoing documents, (iii) the fees and
disbursements of counsel, accountants and any other experts or advisors retained
by the Company, (iv) the fees and disbursements of the Trustee, the Transfer
Agent and Registrar, the Information Agent and the Depositary and (v) any
meetings with Holders relating to the Tender Offer.
5. Representations and Warranties. The Company represents and
warrants to and agrees with you that as of the Commencement Date and the Closing
Date:
(i) The Offering Materials, as amended and supplemented from time to
time, do not, as of their respective dates, contain any untrue
statement of a material fact or omit to state 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,
except that the representations and warranties set forth in this
Section 5(i) do not apply to statements made in reliance upon and in
conformity with information relating to the Dealer Manager furnished
in writing by the Dealer Manager expressly for use in the Offer to
Purchase.
(ii) The Company has all the necessary corporate power and authority
to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby and
by the Offering Materials. The Company has taken all necessary
corporate action to authorize the Tender Offer and the execution,
delivery and performance of this Agreement and the Supplemental
Indenture.
(iii) The consummation of the Tender Offer, as contemplated by the
Offering Materials, complies in all
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material respects with all applicable provisions of the Securities
Act, the Exchange Act and the Trust Indenture Act, and with all
applicable rules or regulations of any governmental or regulatory
authority or body, including applicable "Blue Sky" or similar state
securities laws or statutes; and no consent or approval of, or
filing with, any governmental or regulatory authority or body will
be required by the Company in connection with this Agreement or the
commencement or consummation of the Tender Offer other than those
consents or approvals which will have been obtained and is, or will
be, in full force and effect or any filing which will have been made
prior to the commencement or consummation, as the case may be, of
the Tender Offer.
(iv) The Company has been duly incorporated and is validly existing
in good standing as a corporation under the laws of its jurisdiction
of incorporation, with all requisite corporate power and authority
(corporate or otherwise) under such laws, and has all necessary
authorizations, approvals, orders, licenses, franchises, consents,
certificates and permits of and from regulatory or governmental
officials, bodies and tribunals to own or lease its properties and
conduct its businesses as now conducted as described in the Offering
Materials, and is duly qualified to do business as a foreign
corporation in good standing in all jurisdictions where the
ownership or leasing of its properties or the conduct of its
businesses requires such qualification, except where the failure to
have such authorizations, approvals, orders, licenses, franchises,
consents, certificates or permits or to be so qualified would not
have a material adverse effect on the business, condition (financial
or other), results of operations or business prospects of the
Company and its subsidiaries, taken as a whole ("Material Adverse
Effect").
(v) This Agreement has been duly authorized, executed and delivered
by the Company and, assuming the due authorization, execution and
delivery thereof by the Dealer Manager, constitutes the valid and
legally binding obligation of the Company enforceable against it in
accordance with its terms, except that the enforcement hereof may be
limited by subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating
to creditors' rights generally, and general principles of equity and
the discretion of the court before which any proceeding therefor may
be brought (regardless of whether such enforcement is considered in
a proceeding in equity or at law). The Company is not (i) in
violation of its
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certificate of incorporation or bylaws, (ii) in violation of any
statute, judgment, decree, order, rule or regulation applicable to
it or any of its respective properties or assets which violation
could reasonably be expected to have a Material Adverse Effect, or
(iii) in default in the performance or observance of (including any
default arising after notice or lapse of time or both) any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan agreement, note,
lease, license, franchise agreement, permit, certificate or other
agreement or instrument to which it is subject, which default could
reasonably be expected to have a Material Adverse Effect. The
execution, delivery and performance by the Company of this Agreement
and the Supplemental Indenture and the consummation by the Company
of the transactions contemplated hereby and thereby and by the
Offering Materials will not conflict with or constitute or result in
a breach or violation by the Company of any of (x) the terms or
provisions of, or constitute a default (including any default
arising after notice or lapse of time or both) by the Company or any
of its subsidiaries under, any indenture, mortgage, deed of trust,
loan agreement, note, lease, license, franchise agreement, or other
agreement or instrument to which any of them is a party or to which
any of their respective properties is subject, which conflict,
breach, violation or default could reasonably be expected to have a
Material Adverse Effect, (y) the certificate of incorporation or
bylaws of the Company or any of its subsidiaries, or (z) any
statute, judgment, decree, order, rule or regulation (excluding
state securities and "Blue Sky" laws) of any court or governmental
agency or other body applicable to the Company or any of its
subsidiaries or any of their respective properties, which conflict,
breach, violation or default could reasonably be expected to have a
Material Adverse Effect.
(vi) Except as described in the Offering Materials, there is not
pending or, to the knowledge of the Company, threatened, any action,
suit, proceeding, inquiry or investigation to which it or any of its
subsidiaries, or to which any of their respective properties is
subject, before or brought by any court or governmental agency or
body, which could reasonably be expected to have a Material Adverse
Effect.
(vii) Except as stated in the Offering Materials and as provided
herein, the Company has not agreed to pay and does not know of any
outstanding material claims in the nature of a finder's fee,
financial advisory fee,
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origination fee or similar fee to be paid by it with respect to the
transactions contemplated hereby.
6. Conditions of the Dealer Manager's Obligations. Your obligations
to act and to continue to act (as the case may be) as Dealer Manager shall be
subject to the accuracy in all material respects of the representations and
warranties contained herein as of the Commencement Date as if made on and as of
such date (except as expressly provided therein), to the performance in all
material respects by the Company of its covenants and agreements hereunder and
to the following additional conditions, unless waived in writing by the Dealer
Manager:
(a) There shall not have been any legal action, order, decree or
other administrative proceeding instituted or threatened against the
Company or any of its subsidiaries which could reasonably be expected to
have a Material Adverse Effect, or against you relating to the Tender
Offer and your activities in connection therewith or any of the other
transactions contemplated by the Offering Materials.
(b) The proceedings taken at or prior to the Closing Date in
connection with the Tender Offer and any other transactions contemplated
by the Offering Materials shall be in form and substance reasonably
satisfactory to you and your counsel.
(c) On the Commencement Date, you shall have received the opinion of
Snow Xxxxxx Xxxxxx P.C., counsel for the Company, substantially in the
form of Exhibit A hereto.
(d) On the Closing Date, you shall have received, dated as of such
date, the opinion of Snow Xxxxxx Xxxxxx P.C., counsel for the Company,
substantially in the form of Exhibit B hereto.
(e) Neither the Tender Offer nor any of the other transactions
contemplated by the Offering Materials shall be enjoined (temporarily or
permanently) and no restraining order or other injunctive order shall have
been issued or any action, suit or proceeding shall have been commenced
with respect to the Tender Offer, this Agreement, the Supplemental
Indenture or any of the other transactions contemplated by the Offering
Materials, before any court or governmental authority.
(f) On the Closing Date, the Dealer Manager shall have received a
certificate, dated such date, of the chief executive officer or the chief
financial officer of the Company to the effect that:
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(i) The representations and warranties in this Agreement are true
and correct in all material respects as if made on and as of such
date and the Company has performed all covenants and agreements and
satisfied all conditions on its part to be performed or satisfied at
or prior to such date (after giving effect to the Tender Offer and
the other transactions contemplated by the Offering Materials);
(ii) Subsequent to the date as of which information is given in the
Offering Materials (as amended or supplemented), as of the date of
such certificate, there has not been any change or any development
which, singly or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect on the Company; and
(iii) Neither the Tender Offer, nor any of the other transactions
contemplated hereby or by the Offering Materials has been enjoined
(temporarily or permanently).
(g) On or before the Closing Date, to the extent Requisite
Supermajority Consents or, at the option of the Company, the Requisite
Majority Consents have been received, the Company and the Trustee and all
other necessary parties shall have executed and delivered the Supplemental
Indenture, which shall be reasonably satisfactory in form and substance to
the Dealer Manager and Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Dealer
Manager, and the Supplemental Indenture shall be in full force and effect.
On or before the Commencement Date and the Closing Date, you and
your counsel shall have received such further documents, certificates and
schedules relating to the business, corporate, legal and financial affairs of
the Company and its subsidiaries and the Tender Offer as reasonably requested.
In the event that any of the foregoing conditions is not met when
required to be met, then you shall be entitled to withdraw as Dealer Manager in
connection with the Tender Offer without any liability or penalty to you or any
other "indemnified party" (as defined in Section 7) and without loss of any
right to the payment of all expenses and fees payable under this Agreement.
7. Indemnification. The Company agrees to indemnify and hold
harmless the Dealer Manager and the respective affiliates, the directors,
officers, agents, representatives and employees of the Dealer Manager or its
affiliates and each other person, if any, controlling the Dealer Manager (each
an "indemnified party") from and against any and all losses, actions, claims,
damages or liabilities, and will reimburse any indemnified party for all costs
and expenses (including counsel fees) as they are incurred by
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such indemnified party in connection with investigating, preparing to defend or
defending any such action or claim caused by or arising out of, or in connection
with, the Tender Offer (whether or not consummated), including, but not limited
to, actions, claims, liabilities or expenses arising out of or based upon any
breach of any agreement or representation of the Company contained in this
Agreement, the structuring and development of the Tender Offer, an untrue
statement or alleged untrue statement of a material fact in any of the Offering
Materials or an omission or an alleged omission to state a material fact in any
of the Offering Materials necessary to make the statements therein not
misleading, or the transmittal of the Offering Materials to Holders, or which
arise out of or are based upon any failure to accept Notes or consents properly
tendered pursuant to the Tender Offer; provided, however, that the Company will
not be liable to any indemnified party to the extent that any claims,
liabilities, losses, damages, costs or expenses are finally determined by a
court of competent jurisdiction to have resulted primarily from the gross
negligence or willful misconduct of such indemnified party.
The Company will not, without the prior written consent of the
Dealer Manager, settle or compromise or consent to the entry of any judgment in
any pending or threatened claim, action, suit or proceeding in respect of which
indemnification may be sought by an indemnified party hereunder (whether or not
any indemnified party is a party to such claim, action, suit or proceeding),
unless such settlement, compromise or consent includes an unconditional written
release (in form and substance reasonably satisfactory to the indemnified
parties) of the indemnified parties from all liability arising out of such
claim, action, suit or proceeding.
Promptly after receipt by an indemnified party under this Section 7
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the Company under this Section 7,
notify the Company of the commencement thereof; but the omission so to notify
the Company will not relieve the Company from any liability which it may have to
any indemnified party otherwise than under this Section 7. In case any such
action is brought against any indemnified party, and it notifies the Company of
the commencement thereof, the Company will be entitled to participate therein
and, to the extent it may wish to, may assume the defense thereof, with counsel
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the Company
and the indemnified party shall have concluded that there may be one or more
legal defenses available to it and/or other indemnified parties that are
different from or additional to those available to the Company, then the Company
shall not have the right to direct the defense of such action on behalf of such
indemnified party or parties and such indemnified party or parties shall have
the right to select separate counsel to defend such
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action on behalf of such indemnified party or parties. After notice from the
Company to such indemnified party of its election so to assume the defense
thereof and approval by such indemnified party of counsel appointed to defend
such action, the Company will not be liable to such indemnified party under this
Section 7 for any legal or other expenses, other than costs of investigation
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the immediately preceding sentence (it being
understood, however, that in connection with such action the Company shall not
be liable for the expenses of more than one separate counsel (in addition to
local counsel) in any one action or separate but substantially similar actions
in the same jurisdiction arising out of the same general allegations or
circumstances, designated by the Dealer Manager, representing the indemnified
parties, who are parties to such action or actions) or (ii) the Company has
authorized the employment of counsel for the indemnified party at the expense of
the Company. After such notice from the Company to such indemnified party, the
Company will not be liable for the losses, costs and expenses of any settlement
of such action effected by such indemnified party without the consent of the
Company. If such indemnified party waives all of its rights under this Section
7, the indemnified party may effect such a settlement without the consent of the
Company.
In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 7 is unavailable or insufficient to
hold harmless an indemnified party in respect of any losses, claims, damages or
liabilities (or actions in respect thereof), the Company, in order to provide
for just and equitable contribution, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect (i) the relative benefits received by the Company on the one hand and
the indemnified party or parties on the other from the Tender Offer or (ii) if
the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the Company on the one hand and the indemnified party or parties on the other in
connection with such losses, claims, damages or liabilities (or actions in
respect thereof). The relative benefits received by the Company on the one hand
and the indemnified parties on the other shall be deemed to be in the same
proportion as (i) the aggregate principal amount of Notes solicited for tender
and consent pursuant to the Tender Offer bears to (ii) the fees and expenses
paid or proposed to be paid by the Company to the Dealer Manager under this
Agreement. The indemnity, reimbursement and contribution obligations of the
Company under this Agreement shall be in addition to any rights that the Dealer
Manager or any other indemnified party may have at
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common law or otherwise. The Company and the Dealer Manager agree that it would
not be equitable if the amount of such contribution were determined by pro rata
or per capita allocation (even if the Company on the one hand and the
indemnified parties on the other hand were treated as one entity for such
purpose) or by any other method of allocation that does not take into account
the equitable considerations referred to in the first sentence of this
paragraph. For purposes of this paragraph, each person, if any, who controls the
Dealer Manager within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as the Dealer Manager.
8. Termination. (a) This Agreement may be terminated (i) by the
Dealer Manager at any time upon notice to the Company if (A) the Company shall
mail or otherwise distribute or propose to mail or otherwise distribute any
supplement to any Offering Materials to which the Dealer Manager shall
reasonably object or which shall be reasonably disapproved by its counsel, (B)
at any time prior to the Closing Date, the Tender Offer is terminated or
withdrawn for any reason (other than the failure of the Dealer Manager to
perform its obligations hereunder) or any restraining order or other injunctive
order shall have been issued or any action, suit or proceeding shall have been
commenced with respect to the Tender Offer, this Agreement or any of the other
transactions contemplated by the Offering Materials, before any court or
governmental authority which makes it inadvisable for the Dealer Manager, in its
discretion, to continue to act as Dealer Manager hereunder, (C) any of the
conditions specified in Section 6 shall not have been fulfilled, or (D) there is
a good faith disagreement between the Dealer Manager and the Company with
respect to a material term or condition of the Tender Offer or the Offering
Materials, or (ii) by the Company upon notice to the Dealer Manager, if there is
a good faith disagreement between the Dealer Manager and the Company with
respect to a material term or condition of the Tender Offer or the Offering
Materials.
(b) Termination of this Agreement pursuant to this Section 8 shall
be without liability of any party to any other party except as provided in
Section 11 hereof.
9. Notices. Any notices required to be given in writing pursuant to
any of the provisions of this Agreement shall be mailed, air couriered or
delivered (a) to the Company:
Monarch Marking Systems, Inc.
000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxx Xxxxxxxx, Chairman
with a copy to:
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Paxar Corporation
000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx, Chairman
and Chief Executive Officer
- and -
Snow Xxxxxx Xxxxxx P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx, Esq.
or (b) to the Dealer Manager:
BT Securities Corporation
Xxx Xxxxxxx Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxx
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Any such notice may be made by telecopier or telephone, but if so made shall be
subsequently confirmed in writing.
10. Tombstone. The Company acknowledges that the Dealer Manager may
at any time after the Closing Date place an announcement in such newspapers and
periodicals as it may choose, at the Company's cost, stating that it acted as
financial advisor to the Company in connection with the Tender Offer, provided
that the Dealer Manager will submit a copy of any such announcements to the
Company for its prior approval, which approval shall not be unreasonably
withheld or delayed.
11. Survival. The provisions of Section 2(d) hereof, the indemnity
and contribution agreements contained in Section 7 hereof, the representations
and warranties and agreements set forth in Section 5 hereof and Section 12
hereof shall remain operative and in full force and effect regardless of (i) any
investigation made by or on behalf of the Dealer Manager, or by or on behalf of
any affiliate of the Dealer Manager or any person controlling the Dealer Manager
or affiliate, (ii) consummation of the Tender Offer or (iii) any termination of
this Agreement or of the Dealer Manager's engagement hereunder, and shall be
binding upon and shall inure to the benefit of any successors, assigns, heirs
and personal representatives of the Company, the Dealer Manager and the
indemnified parties referred to in Section 7 hereof.
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12. APPLICABLE LAW; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REFERENCE TO ITS PRINCIPLES OF CONFLICTS OF LAWS, AND ANY RIGHT TO TRIAL
BY JURY WITH RESPECT TO ANY CLAIM, ACTION, SUIT OR PROCEEDING ARISING OUT OF OR
CONTEMPLATED BY THIS AGREEMENT IS HEREBY WAIVED. YOU HEREBY SUBMIT TO THE
NON-EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS LOCATED IN
THE CITY OF NEW YORK IN CONNECTION WITH ANY DISPUTE RELATED TO THIS AGREEMENT OR
ANY MATTERS CONTEMPLATED HEREBY.
13. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
14. Headings. The section headings in this Agreement have been
inserted as a matter of convenience of reference only and are not a part hereof.
15. Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements, understandings and arrangements, oral or
written, among the parties hereto with respect to the subject matter hereof.
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If the foregoing correctly sets forth our understanding, please indicate your
acceptance thereof in the space provided below for that purpose, whereupon this
letter shall constitute a binding agreement between the Company and the Dealer
Manager.
Very truly yours,
MONARCH MARKING SYSTEMS, INC.
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chairman
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
BT SECURITIES CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
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Exhibit A
Form of Commencement Date Opinion of Snow Xxxxxx Xxxxxx P.C.
1. The Company has been duly incorporated, is validly existing and
in good standing under the laws of the State of Delaware.
2. The Company has the full corporate power and authority to
execute, deliver and perform its obligations under the Dealer Manager Agreement.
3. To the best of our knowledge, there is no action, suit,
proceeding or investigation pending or threatened against or affecting the
Company in any court or before any governmental authority or arbitration board
or tribunal that seeks to restrain, enjoin, prevent the consummation of or
otherwise challenge the Tender Offer, the Consent Solicitation or any of the
other transactions contemplated by the Offering Materials.
4. The Dealer Manager Agreement has been duly authorized, executed
and delivered by the Company, and (assuming due authorization, execution and
delivery by the Dealer Manager) is the legally valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and by general principles of equity and
the discretion of the court before which any proceeding therefor may be brought
(regardless of whether such enforcement is considered in a proceeding in equity
or at law).
5. The execution and delivery of the Dealer Manager Agreement by the
Company and the performance of its obligations thereunder will not result in the
violation by the Company of its certificate of incorporation and bylaws or in
the breach of or a default by the Company under any Indenture, mortgage, deed or
trust, loan agreement, note, lease or other agreement or instrument known to us
to be applicable to the Company or to which or any of its properties is subject.
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6. None of (i) the execution or delivery of the Dealer Manager
Agreement by the Company, (ii) performance by the Company of its obligations
under the Dealer Manager Agreement or (iii) the making of the Tender Offer and
Consent Solicitation by the Company, violates any Federal or New York State
statute, law, rule or regulation or any provision of the Delaware General
Corporation Laws known to us or any judgment, decree, order, rule or regulation
of any court or other governmental authority applicable to the Company or any of
its subsidiaries (other than blue sky laws, rules or regulations as to which we
express no opinion).
In addition, we have participated in conferences with officers and
other representatives of the Company and its subsidiaries, representatives of
the independent public accountants for the Company and its subsidiaries, and
your representatives, at which the contents of the Offering Materials and
related matters were discussed and, although we are not passing upon, and do not
assume any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Offering Materials, during the course of such
participation (relying as to materiality to a large extent upon the statements
of officers and other representatives of the Company and its subsidiaries), no
facts came to our attention that caused us to believe that the Offering
Materials contain an 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, in the light of the circumstances under which they were made, not
misleading; it being understood that we express no opinion with respect to the
financial statements and other financial and statistical data included in the
Offering Materials.
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Exhibit B
Form of Closing Date Opinion of Snow Xxxxxx Xxxxxx P.C.
1. The Company has been duly incorporated, is validly existing and
in good standing under the laws of the State of Delaware.
2. The Company has the full corporate power and authority to
execute, deliver and perform its obligations under the Dealer Manager Agreement.
3. To the best of our knowledge, there is no action, suit,
proceeding or investigation pending or threatened against or affecting the
Company in any court or before any governmental authority or arbitration board
or tribunal that seeks to restrain, enjoin, prevent the consummation of or
otherwise challenge the Tender Offer, the Consent Solicitation or any of the
other transactions contemplated by the Offering Materials.
4. The Supplemental Indenture relating to the Notes has been duly
authorized, executed and delivered by the Company and (assuming due
authorization, execution and delivery by the Trustee) is the legally valid and
binding agreement of the Company, enforceable against it in accordance with its
terms, except that enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and by general principles of equity and
the discretion of the court before which any proceeding therefor may be brought
(regardless of whether such enforcement is considered in a proceeding in equity
or at law).
5. The execution and delivery of the Supplemental Indenture by the
Company will not result in the violation by the Company of its certificate of
incorporation and bylaws or any statute, rule or regulation known to us to be
applicable to the Company, or in the breach of or a default by the Company under
any indenture, mortgage, deed of trust, loan agreement, note, lease, license or
other agreement or instrument known to us to be applicable to the Company or to
which any of its properties is subject.
6. None of (i) the execution or delivery of the Dealer Manager
Agreement by the Company, (ii) performance by the Company of its obligations
under the Dealer Manager Agreement or (iii) the making of the Tender Offer and
Consent Solicitation by the Company, violates any Federal or New York State
statute, law, rule
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or regulation or any provision of the Delaware General Corporation Laws known to
us or any judgment, decree, order, rule or regulation of any court or other
governmental authority applicable to the Company or any of its subsidiaries
(other than blue sky laws, rules or regulations as to which we express no
opinion).
7. To the best of our knowledge, no consent, approval, authorization
or order of, or filing with, any court or governmental agency or body is
required for the purchase of the Notes (other than blue sky laws, rules or
regulations as to which we express no opinion).
8. The changes affected by the Supplemental Indenture conform to the
description thereof in the Offering Materials, as amended or supplemented to the
date hereof, in all material respects.
9. The Indenture, as amended by the Supplemental Indenture, complies
with the Trust Indenture Act.
10. The consummation of the Tender Offer and the Consent
Solicitation on the terms set forth in the Offering Materials, as amended and
supplemented to the date hereof, will not conflict with or result in a violation
of Section 14(e) of the Exchange Act and the rules and regulations promulgated
thereunder.
In addition, we have participated in conferences with officers and
other representatives of the Company and its subsidiaries, representatives of
the independent public accountants for the Company and its subsidiaries, and
your representatives, at which the contents of the Offering Materials, as
amended and supplemented to the date hereof, and related matters were discussed
and, although we are not passing upon, and do not assume any responsibility for,
the accuracy, completeness or fairness of the statements contained in the
Offering Materials, as amended and supplemented to the date hereof (relying as
to materiality to a large extent upon the statements of officers and other
representatives of the Company and its subsidiaries), no facts came to our
attention that caused us to believe that any of the Offering Materials, as
amended and supplemented to the date hereof, contain an 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, in the light of the circumstances
under which they were made, not misleading it being understood that we express
no opinion with respect to the financial statements and other
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financial and statistical data included in any of the Offering Materials, as
amended or supplemented to the date hereof.
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