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Exhibit 1.1
BANC OF AMERICA SECURITIES LLC
BANK OF AMERICA CORPORATE CENTER
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ Industries, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Chairman of the Board
Ladies and Gentlemen:
This letter agreement (the "AGREEMENT") will confirm the understanding
between ▇▇▇▇▇▇▇▇▇ Industries, Inc., a Delaware corporation (the "COMPANY"), and
Banc of America Securities LLC ("BAS" or the "DEALER MANAGER"), pursuant to
which the Company has retained BAS to act as the exclusive dealer manager on the
terms and subject to the conditions set forth herein, in connection with the
Company's proposed exchange offer for its 5 3/4% convertible subordinated notes
due 2002 and 5 1/2% convertible subordinated notes due 2003 (the "OLD NOTES").
The Company proposes to offer to exchange (collectively referred to as
the "OFFER"): (i) $1,000 in principal amount of its new 8 1/2% senior
subordinated notes due March 31, 2008 (the "NEW 8 1/2% NOTES"), subject to a
maximum of $30,000,000 aggregate principal amount of Old Notes to be exchanged
for the New 8 1/2% Notes, or (ii) $1,000 in principal amount of its new 6%
convertible subordinated notes due December 31, 2008 (the "NEW 6% NOTES," and
together with the New 8 1/2% Notes, the "NEW NOTES") for every $1,000 in
principle amount of the Old Notes that are tendered. The New 8 1/2% Notes are to
be guaranteed (the "GUARANTEES") by certain subsidiaries (the "GUARANTORS") of
the Company. The Offer shall be made upon the terms and subject to the
conditions set forth in the Registration Statement on Form S-4 (the
"REGISTRATION STATEMENT") and the Prospectus and Exchange Offer (the
"PROSPECTUS") contained therein (including all information incorporated by
reference therein and exhibits, appendices and attachments thereto, as amended,
modified or supplemented from time to time, the "EXCHANGE OFFER").
The holders of the Old Notes are hereinafter referred to as the
"HOLDERS."
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Capitalized terms used and not defined in this letter agreement shall
have the meanings assigned to them in the Exchange Offer.
1. Engagement.
Subject to the terms and conditions set forth herein:
(a) The Company hereby retains the Dealer Manager, and the
Dealer Manager agrees to act, as the exclusive dealer manager to the
Company in connection with the Offer until the date on which the Offer
expires or is earlier terminated in accordance with its terms. BAS will
advise the Company with respect to the terms and timing of the Offer
and assist the Company in preparing any documents (including the
Exchange Offer) to be delivered by the Company to the Holders or used
in connection with the Offer (collectively, the "DOCUMENTS"). The
Company authorizes BAS, in accordance with its customary practices and
consistent with industry practice and all applicable laws, to
communicate generally regarding the Offer with the Holders and their
authorized agents in connection with the Offer.
(b) The Company acknowledges that BAS has been retained solely
to provide the services set forth in this Agreement. In rendering such
services, BAS shall act as an independent contractor, and any duties of
BAS arising out of its engagement hereunder shall be owed solely to the
Company. The Company also acknowledges that (i) the Documents have been
or will be prepared and approved by and are the sole responsibility of
the Company, (ii) BAS shall not be deemed to act as an agent of the
Company or any of its affiliates (except that in any jurisdiction in
which the Offer is required to be made by a registered licensed broker
or dealer, it shall be deemed made by the Dealer Manager on behalf of
the Company) and neither the Company nor any of its affiliates shall be
deemed to act as the agent of BAS and (iii) no securities broker,
dealer, bank or trust company shall be deemed to act as the agent of
BAS or as the agent of the Company or any of its affiliates, and BAS
shall not be deemed to act as the agent of any securities broker,
dealer, bank or trust company. BAS shall not have any liability in
tort, contract or otherwise to the Company or to any of its affiliates
for any act or omission on the part of any securities broker or dealer
or any bank or trust company or any other person except to the extent
that such liability arises out of the gross negligence, bad faith or
the willful misconduct of BAS.
(c) The Company acknowledges that the Dealer Manager is a
securities firm that is engaged in securities trading and brokerage
activities as well as in providing investment banking and financial
advisory services. In the ordinary course of trading and brokerage
activities, the Dealer Manager and its affiliates may at any time hold
long or short positions, and may trade or otherwise effect
transactions, for their own account or the accounts of customers, in
debt or equity securities of the Company and its affiliates or other
entities that may be involved in the transactions contemplated hereby.
(d) BAS agrees, in accordance with its customary practice and
consistent with industry practice and in accordance with applicable law
and the Offer, to perform those services in connection with the Offer
as are customarily performed by investment banks in connection with
similar transactions of a like nature, including, but not limited to,
using all reasonable efforts to solicit tenders of Old Notes pursuant
to the Offer and
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communicating generally regarding the Offer with brokers, dealers,
commercial banks and trust companies and other Holders.
(e) The Company shall arrange for ▇.▇. ▇▇▇▇ & Co., Inc. to act
as information agent (the "INFORMATION AGENT") in connection with the
Offer and, as such, to advise the Dealer Manager promptly as to such
matters relating to the Offer as the Dealer Manager may reasonably
request. The Company shall arrange with First Union National Bank to
act as the exchange agent (the "EXCHANGE AGENT") in connection with the
Offer, and as such to advise the Dealer Manager promptly as to such
matters relating to the Offer as the Dealer Manager may reasonably
request. In addition, the Company hereby authorizes the Dealer Manager
to communicate with the Information Agent, the Exchange Agent, The
Depository Trust Company and others as appropriate and customary with
respect to matters relating to the Offer.
(f) The Company shall furnish the Dealer Manager, or make
efforts to cause the Trustee or registrars for the Old Notes to furnish
the Dealer Manager, as soon as practicable, with cards or lists or
copies thereof showing the names of persons who were the Holders of
record of Old Notes as of the date or dates specified by the Dealer
Manager and, to the extent reasonably available to the Company, the
beneficial Holders of the Old Notes as of such date or dates, together
with their addresses and the principal amount of Old Notes held by
them. Additionally, the Company shall update such information from time
to time during the term of this Agreement as reasonably requested by
the Dealer Manager and to the extent such information is reasonably
available to the Company within the time constraints specified.
(g) The Company agrees to advise the Dealer Manager promptly
of the occurrence of any event, of which it becomes aware, which could
cause or require the Company to withdraw, rescind or modify the
Documents. In addition, if any event occurs as a result of which it
shall be necessary to amend or supplement any Documents in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading in any material respect, the Company
shall, promptly upon becoming aware of any such event, advise the
Dealer Manager of such event and, as promptly as practicable under the
circumstances, prepare and furnish copies of such amendments or
supplements of any such Documents to the Dealer Manager, so that the
statements in such Documents, as so amended or supplemented, will not,
in light of the circumstances under which they were made, be misleading
in any material respect.
(h) Except as otherwise required by law or regulation, the
Company will not use externally or publish any material in connection
with the Offer, or refer to the Dealer Manager in any such material,
without the prior approval of the Dealer Manager (which shall not be
unreasonably withheld). The Company, upon receiving such approval, will
promptly furnish the Dealer Manager with as many copies of such
approved materials as the Dealer Manager may reasonably request.
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(i) The Company will promptly inform the Dealer Manager of any
litigation or administrative or similar proceeding of which it becomes
aware which is initiated or threatened with respect to the Offer.
(j) Upon completion of the Offer, the Company agrees to
deliver promptly, in accordance with the terms of the Documents, the
applicable consideration for the Old Notes to the Holders entitled
thereto.
2. Fees and Expenses.
(a) In consideration of services provided hereunder as the
Dealer Manager, the Company shall pay the Dealer Manager the cash fees
as set forth in that certain engagement letter from BAS with the
Company dated as of January 30, 2001 (the "ENGAGEMENT LETTER"), and the
provisions of the Engagement Letter regarding fees to be paid by the
Company for the services of BAS are incorporated by reference herein as
if restated herein in full.
(b) Whether or not any Old Notes are tendered pursuant to the
Offer or in the event that this Agreement is terminated by either the
Company or the Dealer Manager in accordance with the provisions
contained herein, the Company shall (x) pay all expenses of (i) the
preparation, printing, mailing and publishing of the Documents, (ii)
any and all amounts payable to securities brokers and dealers
(including the Dealer Manager), commercial banks, trust companies and
nominees as reimbursement of their customary mailing and handling
expenses incurred in forwarding the Documents to their customers, and
of any forwarding agent, and all other expenses of the Company, (iii)
all reasonable fees and expenses of the Information Agent and the
Exchange Agent, (iv) all advertising charges incurred with prior
written approval of the Company, (v) all other expenses in connection
with the Offer, and (y) reimburse the Dealer Manager for all reasonable
expenses incurred by the Dealer Manager in connection with its services
as Dealer Manager under this Agreement, including its reasonable out of
pocket expenses and the reasonable fees and expenses of ▇▇▇▇▇ & ▇▇▇
▇▇▇▇▇ PLLC, counsel to the Dealer Manager.
3. Termination.
Subject to Section 8 hereof, this Agreement may be terminated by the
Company on the date the Company terminates (by notice in writing to the Dealer
Manager) or withdraws the Offer.
4. Representations and Warranties by the Company.
The Company represents and warrants to the Dealer Manager (i) on the
date hereof, (ii) on each date that any Documents are published, sent, given or
otherwise distributed, (iii) on the date of exchange of New Notes and/or cash
for the Old Notes by the Company pursuant to the Offer, (iv) with respect to the
issuance of shares of common stock (the "COMMON STOCK")
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issuable upon conversion of the New 6% Notes, upon such issuance, and (v) upon
the consummation of the Offer that:
(a) Each of the Company and its subsidiaries (including when
referred to herein any direct and indirect subsidiaries) has been duly
formed and is validly existing (in the case of the Company, as a
corporation) and in good standing under the laws of the jurisdiction of
its formation.
(b) The Company (i) has all necessary corporate power and
authority to execute and deliver this Agreement, and to perform all its
obligations hereunder to issue the New Notes, to issue the Common
Stock, and to pay any consideration in exchange for the Old Notes to
consummate the Offer in accordance with its terms, and (ii) shall use
all commercially reasonable efforts to take on a timely basis all
actions necessary or required in relation to the Offer. Each of the
Guarantors has all necessary corporate power and authority to issue its
Guarantee.
(c) The Company has taken all necessary corporate action to
authorize the making and consummation of the Offer and the execution,
delivery and performance by the Company of this Agreement; and this
Agreement has been duly executed and delivered by the Company and
assuming due authorization, execution and delivery by the Dealer
Manager, constitutes a valid and legally binding agreement of the
Company.
(d) Each of the New Notes has been duly authorized by the
Company for issuance and exchange pursuant to the Offer and, when duly
executed, authenticated, issued and delivered in the manner provided
for in the New Indentures (as defined below) against payment of the
consideration therefor as contemplated by the Offer, will constitute
valid, legal and binding obligations of the Company, enforceable
against the Company in accordance with their terms, subject, as to
enforcement of remedies, to bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally,
general equitable principles and the discretion of courts in granting
equitable remedies. The New Notes will be substantially in the form
contemplated by, and entitled to the benefits of, the New Indentures.
Upon or prior to the exchange of New Notes for Old Notes by the Company
pursuant to the Offer, the Common Stock shall have been duly authorized
by the Company for issuance upon conversion of New 6% Notes, and, upon
such conversion and issuance, the Common Stock shall have been validly
issued, fully paid and non-assessable. Upon or prior to the exchange of
New Notes for Old Notes by the Company pursuant to the Offer, each of
the Guarantees shall have been duly authorized by its Guarantor for
issuance pursuant to the Offer and, when duly executed, issued and
delivered in the manner provided for in the indenture pursuant to which
the New 8 1/2% Notes are issued (the "8 1/2% NOTE INDENTURE") as
contemplated by the Offer, will constitute a valid, legal and binding
obligation of such Guarantor, enforceable against such Guarantor in
accordance with its terms, subject, as to enforcement of remedies, to
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally, general equitable principles and
the discretion of courts in granting equitable remedies. The Guarantees
will be substantially in the form contemplated by the New 8 1/2% Note
Indenture.
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(e) Each of the New Indentures shall have been duly
authorized, executed and delivered by the Company and, upon such
authorization, execution and delivery, will constitute a valid, legal
and binding agreement of the Company, enforceable against the Company
in accordance with its terms, subject, as to enforcement of remedies,
to bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally, general equitable principles and
the discretion of courts in granting equitable remedies.
(f) The New Notes, the Guarantees and the Common Stock will
conform in all material respects to the descriptions thereof contained
in the Prospectus and, when issued, the New Notes and the Guarantees
will be in substantially the form required by each of the New
Indentures, as filed as an exhibit to the Registration Statement.
(g) The Offer meets the eligibility requirements for use of
Form S-4 under the Securities Act of 1933, as amended (the "SECURITIES
ACT"). Upon issuance of the New Notes and upon consummation of the
transactions contemplated by the Offer, each indenture pursuant to
which the New Notes are issued (the "NEW INDENTURES") shall have been
duly qualified under the Trust Indenture Act of 1939, as amended (the
"TRUST INDENTURE ACT").
(h) The Company will use all reasonable efforts to qualify the
New Notes for offering and sale under the applicable securities laws of
such states and other jurisdictions (domestic and foreign) as
contemplated by the Offer and shall maintain such qualifications in
effect for so long as required for the distribution of the New Notes;
PROVIDED, however, that the Company shall not be obligated to file any
general consent to service of process or to qualify as a foreign
corporation or as a broker or dealer in securities in any jurisdiction
in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not
otherwise so subject.
(i) The Offer and the Documents (including the documents
incorporated or deemed to be incorporated by reference into the
Documents) comply and (as amended or supplemented, if amended or
supplemented) will comply in all material respects with all applicable
requirements of the federal securities laws and the Trust Indenture Act
and with all applicable foreign, local or state securities laws, and,
in each case, the rules and regulations thereunder; and the Documents
(including the documents incorporated or deemed to be incorporated by
reference into the Documents) do not and (as amended or supplemented,
if amended or supplemented) will not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(j) The financial statements, together with related schedules,
included or incorporated by reference in each of the Documents present
fairly the consolidated financial position, results of operations,
stockholder's equity and cash flows of the Company and its subsidiaries
on the basis stated therein at the respective dates or for the
respective periods to which they relate; and such statements and
related schedules have
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been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved, except
as disclosed therein.
(k) The Offer pursuant to the terms of the Documents,
including the receipt of certain third party consents, and the
execution, delivery and performance by the Company of this Agreement
and the transactions contemplated hereby and thereby (x) do not and
will not conflict with, or result in a breach or violation of, or
constitute a default under, any of the provisions of the New Indentures
or of the charter or bylaws (or similar organizational documents) of
the Company or any other note, indenture (including without limitation
the indentures governing the Old Notes), loan agreement, mortgage or
other agreement, instrument or undertaking to which the Company or any
of its subsidiaries or affiliates is a party or by which any of them is
bound or to which any of their properties or assets is subject, and (y)
will not result in any violation of any law, rule or regulation or any
order of any court or of any other governmental agency or
instrumentality having jurisdiction over the Company or any of its
subsidiaries or affiliates or any of its or their respective properties
or assets.
(l) No consent, approval, authorization or order of, or
registration, qualification or filing with, any court or regulatory
authority or other governmental agency or instrumentality is or will be
required in connection with the making or consummation of the Offer or
the execution, delivery or performance by the Company of this Agreement
and the transactions contemplated hereby, except as such may be
described in the Exchange Offer or such as would not have a material
adverse effect on the operations, assets, condition (financial or
otherwise) or prospects of the Company or any of its subsidiaries or
affiliates, or on the ability of the parties to consummate the Offer as
contemplated thereby (a "MATERIAL ADVERSE EFFECT").
(m) The Company shall advise the Dealer Manager promptly of
(i) the occurrence of any event of which the Company becomes aware
which could cause the Company to withdraw, rescind or terminate the
Offer or would permit the Company to exercise any right not to purchase
or exchange Old Notes tendered under the Offer, (ii) the occurrence of
any event of which the Company becomes aware, or the discovery by the
Company of any fact, the occurrence or existence of which it believes
would make it necessary or advisable to make any change in the
Documents being used or would cause any representation or warranty
contained in this Agreement to be untrue or inaccurate in any material
respect, (iii) any proposal or requirement to make, amend or supplement
any Document or any filing in connection with the Offer pursuant to the
Securities Act, the Exchange Act, the Trust Indenture Act or any
applicable law, rule or regulation, (iv) its awareness of the issuance
by any regulatory authority of any comment or order or the taking of
any other action concerning the Offer (and, if in writing, will furnish
the Dealer Manager with a copy thereof), (v) its awareness of any
material developments in connection with the Offer or its ability to
finance the expenses thereof including, without limitation, the
commencement of any lawsuit relating to the Offer and (vi) any other
information known to the Company relating to the Offer, the Documents
or this Agreement which the Dealer Manager may from time to time
reasonably request.
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(n) There is no action, suit or proceeding before or by any
court or governmental agency or body now pending or, to the knowledge
of the Company, threatened against the Company or any of its
subsidiaries which would adversely affect in any material respect the
Offer pursuant to the terms of the Documents or the effectiveness of
this Agreement.
The representations and warranties set forth in this Section 4 shall
remain operative and in full force and effect regardless of (i) any
investigation made by or on behalf of any Indemnified Person (as
defined in Annex A attached hereto) or (ii) any termination of this
Agreement.
5. Conditions and Obligations.
The obligations of the Dealer Manager to act as a Dealer Manager
hereunder shall at all times be subject, in its discretion, to the conditions
that:
(a) All representations and warranties of the Company
contained herein or in any certificate or writing delivered hereunder
at all times during the Offer shall be true and correct in all material
respects.
(b) The Company at all times during the Offer shall have
performed, in all material respects, all of its obligations hereunder
required as of such time to have been performed by it.
(c) Counsel for the Company shall have delivered to the Dealer
Manager an opinion, on the date of closing of the Offer, reasonably
acceptable to the Dealer Manager, dated such date and covering
substantially the following matters:
(i) The Company is validly existing as a corporation
in good standing under the laws of Delaware.
(ii) (a) The Company has duly taken all necessary
corporate action to authorize the making and consummation of
the Offer pursuant to the terms of the Documents and the
execution, delivery and performance by the Company of this
Agreement, and (b) this Agreement has been duly executed and
delivered by the Company.
(iii) The New Notes have been duly authorized by the
Company and, when executed, authenticated, and issued in
accordance with the provisions of the New Indentures and
delivered and exchanged as contemplated by the Offer, will
constitute legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with
their terms, subject, as to enforcement of remedies, to
bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally, general equitable
principles and the discretion of the courts in granting
equitable remedies; and the New Notes will be entitled to the
benefits of the New Indentures. The New Notes will in all
material
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respects be in the form contemplated by the New Indentures.
Upon or prior to the exchange of New Notes for Old Notes by
the Company pursuant to the Offer, the Common Stock shall have
been duly authorized by the Company for issuance upon
conversion of New 6% Notes, and, upon such conversion and
issuance, the Common Stock shall have been validly issued,
fully paid and non-assessable. Each of the Guarantors has all
necessary corporate power and authority to issue its
Guarantee.
(iv) Each of the New Indentures has been duly
authorized, executed and delivered by the Company and,
assuming that the Trustee has satisfied all legal requirements
that are applicable to it to the extent necessary to make the
New Indentures enforceable against it, each of the New
Indentures constitutes a legal, valid and binding instrument
of the Company, enforceable against the Company in accordance
with its terms, subject, as to enforcement of remedies, to
bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally, general equitable
principles and the discretion of the courts in granting
equitable remedies; and each of the New Indentures has been
duly qualified under the Trust Indenture Act.
(v) The New Notes, the Guarantees, the New Indentures
and the Common Stock conform in all material aspects to the
descriptions thereof in the Prospectus.
(vi) The statements in the Prospectus under the
caption "Description of the Old Notes," "Description of the
New Notes," "Comparison of the Old Notes and the New Notes,"
"Description of Common Stock," "United States Federal Income
Tax Consequences" (or similar captions), and in the
Registration Statement under Item 20, insofar as such
statements constitute matters law, summaries of legal matters,
the Company's Articles of Incorporation and Bylaws or legal
proceedings, or legal conclusions, has been reviewed by us and
is correct in all material respects.
(vii) The Registration Statement has become effective
under the Securities Act and the Prospectus has been filed
pursuant to Rule 424(b) under the Securities Act in the manner
and within the time period required by Rule 424. To our
knowledge, no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and
no proceedings for that purpose have been instituted or are
pending under the Securities Act.
(viii) The Registration Statement, as of its
effective date, and the Prospectus, as of its date and upon
consummation of the transactions contemplated by the Offer,
complied as to form in all material respects with the
requirements of the Securities Act and the rules and
regulations thereunder (in each case other than the financial
statements and supporting schedules, and the Form T-1 included
or incorporated by reference therein, as to which such counsel
need express no opinion).
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(ix) Each document incorporated by reference in the
Registration Statement and the Prospectus (in each case other
than the financial statements and the related schedules and
the Form T-1 included or incorporated by reference therein),
when it was filed with the Securities and Exchange Commission,
complied as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations
thereunder.
(x) Assuming the due authorization, execution and
delivery of this Agreement by the Dealer Manager, this
Agreement constitutes the valid and legally binding obligation
of the Company, enforceable against the Company in accordance
with its terms, except to the extent that such enforceability
may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar
laws affecting creditors' rights generally and by general
equitable principles (whether considered in a proceeding in
equity or at law), and except that rights to indemnification
or contribution contained in this Agreement may be limited by
federal or state laws or public policy relating thereto.
(xi) The making and consummation of the Offer
pursuant to the terms of the Documents and the execution,
delivery and performance by the Company and the Guarantors, as
the case may be, of this Agreement, the New Indentures, the
Documents and the transactions related hereto and thereto (A)
do not and will not conflict with, or result in a breach or
violation of, or constitute a default under, the charter or
bylaws (or similar organizational documents) of the Company or
the Guarantor, as the case may be, or of any material note,
indenture (including without limitation the indentures
governing the Old Notes), loan agreement, mortgage or other
agreement, instrument or undertaking of which counsel has
knowledge to which the Company or the Guarantor, as the case
may be, or any of the Company's subsidiaries or affiliates is
a party or by which any of them is bound or any of their
respective subsidiaries or affiliates is a party or by which
any of them is bound or to which any of their respective
properties or assets is subject, in each case of which counsel
has knowledge, and (B) will not result in a violation of any
corporate or federal, or to such counsel's knowledge foreign,
law, rule or regulation applicable to, or any order known to
such counsel of any court or of any other governmental agency
or instrumentality having jurisdiction over the Company or the
Guarantor, as the case may be, or any of the Company's
subsidiaries or affiliates or any of their respective
properties or assets and will comply in all material respects
with the requirements of all applicable federal securities
laws, rules and regulations.
(xii) Except for filings under state securities laws,
no consent, approval, authorization, order of, or
registration, qualification or filing with, any court or
regulatory authority or governmental agency or instrumentality
is or will be required in connection with the making and
consummation of the Offer pursuant to the terms of the
Documents or the execution, delivery and performance by the
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Company or the Guarantors, as the case may be, of this
Agreement and the transactions contemplated hereby.
In giving the opinions required by this Section 5, such counsel shall
additionally state that such counsel has participated in conferences and
discussions with the Company, the Dealer Manager, the Dealer Manager's counsel
and others in the course of the preparation by the Company of the Offer, at
which conferences the contents of the Exchange Offer and other related documents
were discussed, and, although such counsel has not independently verified and is
not passing upon and assumes no responsibility for the accuracy, completeness or
fairness of the information included in the Registration Statement and in the
Prospectus (except for the opinion rendered in item 5(c)(vi) above), no facts
have come to such counsel's attention which lead such counsel to believe that
the Registration Statement or the Prospectus 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 contained therein, in light of the
circumstances under which they were made, not misleading (it being understood
that such counsel shall express no view with respect to the financial statements
and the related schedules thereto, contained, or incorporated by reference in
the Registration Statement and the Prospectus).
6. Indemnification.
In consideration of the engagement hereunder, the Company shall
indemnify and hold BAS harmless, and BAS shall indemnify and hold the Company
harmless, in each case to the extent set forth in ANNEX A hereto, which
provisions are incorporated by reference herein and constitute a part hereof.
7. Confidentiality.
BAS shall use all information provided to it by or on behalf of the
Company hereunder solely for the purpose of providing the services which are the
subject of this Agreement and the transactions contemplated hereby and shall
treat confidentially all such information, PROVIDED that nothing herein shall
prevent BAS from disclosing any such information (i) pursuant to the order of
any court or administrative or similar proceeding, (ii) upon the request or
demand of any regulatory authority having jurisdiction over BAS or any of its
affiliates, (iii) to the extent that such information is or becomes publicly
available other than by reason of disclosure by BAS in contravention of this
Agreement or (iv) to its employees, legal counsel, independent auditors and
other experts or agents who need to know such information and are informed of
the confidential nature of such information. With respect to clause (i) or (ii)
above, prior to making any such disclosure, BAS shall notify the Company of such
order or request and use commercially reasonable efforts to cooperate with the
Company, at the Company's expense, in seeking a protective order or taking such
action as the Company may reasonably request, consistent with applicable law.
Notwithstanding the foregoing provisions of this Section 7, BAS may share any
information or matters relating to the Company, the Offer and the transactions
contemplated hereby with its affiliates, and such affiliates may likewise share
information relating to the Company with BAS, PROVIDED that such affiliates need
to know such information and are informed of the confidential nature of such
information. BAS shall be responsible for compliance by its affiliates with this
Section 7.
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8. Survival.
The agreements contained in Sections 1(b), 2, 6 and 7 and the
representations and warranties of the Company set forth in Section 4 hereof
shall survive any termination or cancellation of this Agreement, any completion
of the engagement provided by this Agreement and any investigation made by or on
behalf of the Company, BAS or any Indemnified Person (as defined in ANNEX A) and
shall survive the termination or consummation of the Offer.
9. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to contracts made and to be
performed entirely within that State. THE COMPANY AND BAS IRREVOCABLY AGREE TO
WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY
OR ON BEHALF OF ANY PARTY RELATED TO OR ARISING OUT OF THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
10. Notices.
Except as otherwise expressly provided in this Agreement, whenever
notice is required by the provisions of this Agreement to be given to (i) the
Company, such notice shall be in writing addressed to ▇▇▇▇▇▇▇▇▇ Industries,
Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇,
facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to Akerman, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇,
▇.▇., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇. March, Esq., facsimile
number: (▇▇▇) ▇▇▇-▇▇▇▇, and (ii) BAS, such notice shall be in writing addressed
to Banc of America Securities LLC, Bank of America Corporate Center, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, ▇▇., facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇.
11. Miscellaneous.
This Agreement contains the entire agreement between the parties
relating to the subject matter hereof and supersedes all oral statements and
prior writings with respect thereto, other than with respect to the Engagement
Letter as provided above in Section 2(a). This Agreement may not be amended or
modified except by a writing executed by each of the parties hereto. Section
headings herein are for convenience only and are not part of this Agreement.
This Agreement is solely for the benefit of the Company and BAS, and no other
person (except for Indemnified Persons, to the extent set forth in ANNEX A
hereto) shall acquire or have any rights under or by virtue of this Agreement.
If any term, provision, covenant or restriction contained in this Agreement is
held by a court of competent jurisdiction to be invalid, void or unenforceable
or against public policy, the remainder of the terms, provisions, covenants and
restrictions contained herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated. The Company and BAS shall endeavor
in good faith negotiations to replace the invalid, void or unenforceable
provisions with valid provisions, the economic effect of which
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comes as close as possible to that of the invalid, void or unenforceable
provisions. Neither the failure nor any delay by any party in exercising any
right, power or privilege under this Agreement will operate as a waiver of such
right, power or privilege, and no single or partial exercise of any such right,
power or privilege will preclude any other or further exercise of such right,
power or privilege or the exercise of any other right, power or privilege. This
Agreement may be executed in counterparts, each of which will be deemed an
original, but all of which, taken together, will constitute one and the same
instrument.
If the foregoing correctly sets forth your understanding, please
indicate your acceptance of the terms hereof by signing in the appropriate space
below and returning to BAS the enclosed duplicate originals hereof, whereupon
this letter shall become a binding agreement between us.
Very truly yours,
BANC OF AMERICA SECURITIES LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
--------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Principal
Accepted and agreed to as of the date first written above:
▇▇▇▇▇▇▇▇▇ INDUSTRIES, INC.
By: /s/ Zivi ▇. ▇▇▇▇▇▇
--------------------------------------------------
Name: Zivi ▇. ▇▇▇▇▇▇
Title: President and Chief Executive Officer
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ANNEX A
TO THAT CERTAIN DEALER MANAGER LETTER AGREEMENT (THE "AGREEMENT")
DATED AS OF MARCH 7, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ SECURITIES LLC AND ▇▇▇▇▇▇▇▇▇ INDUSTRIES, INC.
The Company shall indemnify and hold harmless the Dealer Manager and
the Dealer Manager's affiliates and officers, directors, employees, legal
counsel, independent auditors, agents and controlling persons (each a "DEALER
MANAGER INDEMNIFIED Person") from and against any and all losses, claims,
damages, liabilities and reasonable expenses, joint or several, to which any
such Dealer Manager Indemnified Person may become subject arising out of or
based upon (A) any untrue or alleged untrue statement of a material fact
contained in the Documents or any of the documents incorporated by reference
therein or in any amendment or supplement to any of the foregoing, or the
omission or alleged omission to state therein a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; PROVIDED, HOWEVER, that the foregoing indemnity
with respect to any such untrue statement or omission shall not inure to the
benefit of such Dealer Manager Indemnified Person if, and to the extent that the
Company is materially prejudiced thereby, the Company shall sustain the burden
of proving, and a determination shall have been made by a court of competent
jurisdiction by final and nonappealable judgment, that (i) the untrue statement
or omission contained in the Documents was corrected in a subsequent amendment
thereto; (ii) the person asserting any such claim was not sent or given a copy
of the amended Document (excluding any documents incorporated by reference)
which corrected the untrue statement or omission at or prior to the purchase or
exchange of such Old Notes if required by applicable law; and (iii) the Company
had previously satisfied its obligation to provide a sufficient number of copies
of the Documents for distribution to Holders; (B) any withdrawal, termination,
rescission or modification of, or failure to purchase or exchange Old Notes
properly tendered pursuant to, the Offer; (C) any breach by the Company of any
representation or warranty or failure to comply with any of the agreements set
forth in the Agreement to which this Annex A is attached; or (D) the
transactions contemplated by the Agreement to which this Annex A is attached or
the performance by the Dealer Manager thereunder, or any claim, litigation,
investigation or proceedings relating to the foregoing (collectively, "DEALER
MANAGER PROCEEDINGS"), regardless of whether any of such Dealer Manager
Indemnified Persons is a party thereto, and to reimburse such Dealer Manager
Indemnified Persons for any reasonable legal or other reasonable out-of-pocket
expenses as they are incurred in connection with investigating or defending any
of the foregoing, PROVIDED that such indemnification will not, as to any Dealer
Manager Indemnified Person, apply to losses, claims, damages, liabilities or
expenses to the extent that they are (i) in the case of clause (A) above, caused
by an untrue statement or omission or alleged untrue statement or omission that
is made in reliance upon and in conformity with information relating to the
Dealer Manager furnished in writing to the Company by the Dealer Manager
expressly for inclusion in the Documents as specified herein, or (ii) in the
case of clause (D) above, finally judicially determined to have resulted from
the gross negligence or willful misconduct of such Dealer Manager Indemnified
Person.
The Company shall not be liable for any settlement of any lawsuit,
claim or proceeding effected without its written consent (which consent shall
not be unreasonably withheld or delayed), but if settled with such consent, the
Company and its subsidiaries jointly and severally
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agree, subject to the provisions of this ANNEX A, to indemnify the Dealer
Manager Indemnified Person from and against any loss, damage, liability or
expense by reason of such settlement.
The Dealer Manager shall indemnify and hold harmless the Company and
its affiliates and officers, directors, employees, legal counsel, independent
auditors, agents and controlling persons (each a "COMPANY INDEMNIFIED PERSON")
from and against any and all losses, claims, damages, liabilities and reasonable
expenses, joint or several, to which any such Company Indemnified Person may
become subject arising out of or based upon the transactions contemplated by the
Agreement to which this Annex A is attached or the performance by the Company
thereunder, or any claim, litigation, investigation or proceedings relating to
the foregoing ("COMPANY PROCEEDINGS") regardless of whether any of such Company
Indemnified Persons is a party thereto, and to reimburse such Company
Indemnified Persons for any reasonable legal or other reasonable out of pocket
expenses as they are incurred in connection with investigating or defending any
of the foregoing, but only to the extent such losses, claims, damages,
liabilities or expenses that are finally judicially determined to have resulted
from (x) the gross negligence or willful misconduct of any Dealer Manager
Indemnified Person, or (y) any material misstatement or omission that is made in
reliance upon and in conformity with information relating to the Dealer Manager
furnished in writing to the Company by the Dealer Manager expressly for
inclusion in the Documents. The Company acknowledges that such information in
(y) above refers to the penultimate line on the cover page and the last line on
the back cover page of the Prospectus (and elsewhere in the Documents)
specifying the identity, address and phone number of BAS. The terms "Dealer
Manager Indemnified Person" and "Company Indemnified Person" are herein
collectively referred to as an "INDEMNIFIED PERSON" and the terms "Dealer
Manager Proceedings" and "Company Proceedings" are herein collectively referred
to as "PROCEEDINGS".
The Dealer Manager shall not be liable for any settlement of any
lawsuit, claim or proceeding effected without its written consent (which consent
shall not be unreasonably withheld or delayed), but if settled with such
consent, the Dealer Manager agrees, subject to the provisions of this Annex A,
to indemnify the Company Indemnified Person from and against any loss, damage or
liability by reason of such settlement.
Promptly after receipt by an Indemnified Person of notice of the
commencement of any Proceedings, such Indemnified Person will, if a claim in
respect thereof is to be made against the Company or the Dealer Manager, as the
case may be, as indemnifying party (the "INDEMNIFYING PARTY") for
indemnification hereunder, notify such Indemnifying Party in writing of the
commencement thereof; PROVIDED that (i) the failure so to notify the
Indemnifying Party will not relieve any Indemnifying Party from any liability
which it may have hereunder except to the extent such failure to give notice
results in the loss or compromise of any material rights or defenses of the
Indemnifying Party or otherwise materially prejudices such Indemnifying Party,
and (ii) the failure so to notify such Indemnifying Party will not relieve any
Indemnifying Party from any liability which it may have to such Indemnified
Person otherwise than on account of the Agreement or this ANNEX A. In case any
such Proceedings are brought against any Indemnified Person and it notifies the
applicable Indemnifying Party of the commencement thereof, such Indemnifying
Party will be entitled to participate therein, and, to the extent that it may
elect by written notice delivered to such Indemnified Person, to assume the
defense thereof,
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with counsel reasonably satisfactory to such Indemnified Person, PROVIDED that
if the defendants in any such Proceeding include both such Indemnified Person
and the Indemnifying Party and counsel to such Indemnified Person shall have
reasonably concluded that there may be legal defenses available to it which are
different from or additional to those available to the Indemnifying Party or its
affiliates, such Indemnified Person shall have the right to select separate
counsel to assert such legal defenses and to otherwise participate in the
defense of such Proceedings on behalf of such Indemnified Person, it being
understood, however, that counsel for all Indemnified Persons shall be
designated in writing by BAS so long as it is one of the Indemnified Persons or
by mutual agreement if it is not such a person. Upon receipt of notice from the
Indemnifying Party to such Indemnified Person of its election so to assume the
defense of such Proceedings within 30 days after receipt of such notice and
approval by such Indemnified Person of counsel, the Indemnifying Party shall not
be liable to such Indemnified Person for legal expenses of other counsel
subsequently incurred by such Indemnified Person in connection with the defense
thereof (other than reasonable costs of investigation and in addition to any
local counsel) unless (i) such Indemnified Person shall have employed separate
counsel in connection with the assertion of legal defenses in accordance with
the proviso to the next preceding sentence (it being understood, however, that
the Indemnifying Party shall not be liable for the expenses of more than one
separate counsel, approved by the Indemnified Party, representing the
Indemnified Persons who are parties to such Proceedings), (ii) the Indemnifying
Party shall not have employed separate counsel reasonably satisfactory to such
Indemnified Person to represent such Indemnified Person within a reasonable time
after notice of commencement of the Proceedings, or (iii) the Indemnifying Party
fails to assume such defense within the 30 days specified above, or (iv) the
Indemnifying Party shall have authorized in writing the employment of counsel
for such Indemnified Person. The Indemnifying Party shall not effect, without
the prior written consent of the Indemnified Person, any settlement of any
pending or threatened Proceedings unless such settlement includes an
unconditional release from the party bringing such Proceedings of such
Indemnified Person and does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
If at any time an Indemnified Party shall have requested an
Indemnifying Party to reimburse the Indemnified Party for reasonable fees and
expenses of counsel, such Indemnifying Party agrees that it shall be liable for
any settlement of the nature contemplated by the preceding paragraphs effected
without its written consent if (i) such settlement is entered into more than 45
days after receipt by such Indemnifying Party of the aforesaid request, (ii)
such Indemnifying Party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and
(iii) such Indemnifying Party shall not have reimbursed such Indemnified Party
in accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time an
Indemnified Party shall have requested an Indemnifying Party to reimburse the
Indemnified Party for fees and expenses of counsel, an Indemnifying Party shall
not be liable for any settlement of the nature contemplated by the preceding
paragraphs effected without its consent if such Indemnifying Party (a)
reimburses such Indemnified Party in accordance with such request to the extent
it considers such request to be reasonable and (b) provides written notice to
the Indemnified Party substantiating the unpaid balance as unreasonable, in each
case prior to the date of such settlement.
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If for any reason the foregoing indemnification is unavailable to any
Indemnified Person or insufficient to hold it harmless, then the applicable
Indemnifying Party shall contribute to the amount paid or payable by such
Indemnified Person as a result of such loss, claim, damage, liability or expense
in such proportion as is appropriate to reflect not only the relative benefits
received by the Indemnifying Party on the one hand and such Indemnified Person
on the other hand, but also the relative fault of the Indemnifying Party on the
one hand, and such Indemnified Person, on the other hand, as well as any
relevant equitable considerations. It is hereby agreed that the relevant
benefits to the Company (including its affiliates, officers, directors,
employees, legal counsel, independent auditors, agents and controlling persons)
on the one hand and the Dealer Manager (including its affiliates, officers,
directors, employees, agents and controlling persons) on the other hand shall be
deemed to be in the same proportion as (i) the aggregate original principal
amount of the Old Notes outstanding bears to (ii) the fee paid or proposed to be
paid to the Dealer Manager pursuant to Section 2 of the Agreement to which this
Annex A is attached. The relative fault of the Indemnifying Party on the one
hand and the Indemnified Person on the other hand relating to an untrue or
alleged untrue statement of material fact or the omission or alleged omission to
state a material fact shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by, or relating to, the Indemnifying Party and its affiliates or the
Indemnified Person and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The indemnity, reimbursement and contribution obligations of an
Indemnifying Party under this ANNEX A shall be in addition to any liability
which such Indemnifying Party may otherwise have to an Indemnified Party and
shall be binding upon and inure to the benefit of any successors, assigns, heirs
and personal representatives of such Indemnifying Party and any such Indemnified
Person. Notwithstanding the foregoing, in no event shall the Dealer Manager be
liable under the foregoing indemnity, reimbursement and contribution provisions
in an amount in excess of the fees actually received by the Dealer Manager
pursuant to the Agreement to which this Annex A is attached.
Capitalized terms used but not defined in this ANNEX A have the
meanings assigned to such terms in the Agreement to which this Annex A is
attached.
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