1
EXHIBIT 10.23
[CREDIT SUISSE FIRST BOSTON CORPORATION LETTERHEAD]
October 11,2000
Xx. Xxxxxxx X. Xxxxxxxx XXXXXX X. XXXXXXXXX
Chief Executive Officer & President Managing Director
Probex Corp.
One Galleria Tower
00000 Xxxx Xxxx
Xxxxx 0000
Xxxxxx, XX 00000
Dear Xxxxxxx:
This letter agreement (the "Engagement") sets forth the terms and conditions
under which Credit Suisse First Boston Corporation and its affiliates,
successors and assigns, as appropriate ("CSFB"), has been engaged to act as
exclusive financial advisor to Probex Corp. ("Probex") in connection with the
structuring and arranging of financing for various lubricating oils reprocessing
projects to be located in the United States and France (the "Project"). The
terms and conditions of this letter agreement are contingent upon CSFB's
completion of due diligence and review and acceptance by its credit and
investment banking committees, currently expected to occur on or prior to
Friday, November 10, 2000.
KEY TASKS
CSFB will, if appropriate and if requested, perform the following key tasks
under this Engagement Letter:
(a) assist Probex in the development of a financing plan for the Project
that will consider (i) bank loans, (ii) equity private placements,
(iii) capital markets offerings (debt or equity) and (iv) other
available financing sources (each, a "Financing");
(b) assist Probex in its negotiations with parties involved in certain
agreements relating to the Project such as supply agreements, offtake
agreements, the EPC contract, etc.;
(c) assist Probex in developing a financial model for the Project;
(d) assist Probex in the selection of appropriate consultants regarding
such matters as insurance, market, legal issues and engineering;
(e) assist Probex in the preparation and presentation of materials to the
rating agencies (if applicable) regarding Probex and the Project,
including leading such rating agencies through on-site due diligence
of the Project, if necessary or appropriate; and
2
(f) assist Probex in the preparation of descriptive materials, including
offering documents and term sheets, and any other documents and
agreements to be used in connection with a Financing of the Project.
INFORMATION
In connection with CSFB's engagement, Probex will furnish CSFB with all
information concerning Probex and the Project which CSFB reasonably requests and
will provide CSFB with access to Probex's officers, directors, employees,
accountants, counsel, and other representatives involved in the Project
(collectively, the "Representatives"), it being understood that CSFB will rely
solely upon such information supplied by Probex and their Representatives
without assuming any responsibility for independent investigation thereof. All
non-public information concerning Probex and the Project which is given to CSFB
in connection with this engagement will be used solely in the course of the
performance of its services hereunder and will be treated confidentially by it
for so long as it remains nonpublic. CSFB will not disclose any such non-public
information to any third party without the consent of Probex, except as
otherwise required by law.
FEES AND EXPENSES
As compensation for CSFB's services hereunder, Xxxxxx agrees to pay CSFB the
following fees:
(a) a retainer fee equal to (i) US$500,000 earned upon execution of this
agreement and payable no later than November 30, 2000 (the "Initial
Retainer Fee"), (ii) $750,000 payable upon the earlier of Probex's
termination of this agreement and the completion of the first closing
in connection with a Financing for the Project, and (iii) $750,000
payable upon the earlier of Probex's termination of this agreement and
the completion of the second closing in connection with a Financing
for the Project (collectively, the "Retainer Fee"):
(b) in connection with the equity private placement contemplated hereby,
the Company will pay to CSFB, promptly upon each closing of a sale of
the Securities, a cash fee equal to 7.00% of the total proceeds raised
in such sale (the "Placement Fee"); and
(c) in connection with bank loans, a net underwriting and arrangement fee
payable to CSFB equal to the greater of (i) $1,000,000 and (ii) 1.5%
of the aggregate loan amount, payable upon execution and delivery by
all parties thereto of definitive credit documentation - exclusive of
the initial fee paid to banks electing to participate in the Probex
financing (the "Bank Fee").
NO AGREEMENT TO UNDERWRITE OR PURCHASE FINANCING
CSFB does not hereby undertake to purchase or underwrite any securities or
provide a bank loan in connection with the Project. Any such engagement shall be
subject to a separate agreement (including customary terms, including
indemnification provisions) if CSFB agrees to participate in an underwriting,
debt placement or to provide some portion of a Financing.
3
EXPENSES
Probex agrees to reimburse CSFB, for its direct and reasonable out-of-pocket
expenses (including, but not limited to, independent engineer or other
consultants, underwriter's counsel, travel and accommodation, telephone,
facsimile, photocopy, but not employee salaries or overhead expenses, provided
that such consultants and counsel are reasonably acceptable to Probex) resulting
from or arising out of this engagement upon receipt of invoice therefor,
quarterly. Any expenses if not previously reimbursed as provided herein, shall
be reimbursed upon the closing of any financing contemplated hereunder or the
date of termination of this agreement, as the case may be.
TERMINATION
CSFB and Probex each may terminate this Engagement Letter with or without cause
at any time upon at least 30 days prior written notice. In the event of a Probex
termination of this agreement for reasons other than a material breach by CSFB
of its obligations hereunder, if within 18 months of such termination Probex
executes a capital markets (debt or equity) or bank financing for the Project,
CSFB shall be entitled to its full Retainer Fee, Placement Fee and Bank Fee as
provided herein. Prior to the first closing in connection with a Financing, in
the event of a CSFB termination of this agreement without cause (unless such
termination is based upon CSFB's view that a Financing in the foreseeable future
cannot be closed), CSFB agrees to reimburse Probex for its payment of the
Initial Retainer Fee (to the extent paid).
No termination hereunder by either CSFB or Probex shall affect Probex's (i)
obligations to pay the Initial Retainer Fee and expenses of CSFB accrued to the
date of termination and (ii) obligations to indemnify CSFB and certain related
entities under the separate letter agreement referred to below. No termination
of CSFB's engagement by Probex shall affect Probex's obligations under the next
paragraph, unless such termination arises out of a willful and material breach
by CSFB of its obligations hereunder.
OTHER MATTERS
For three years following the date of this agreement, Xxxxxx agrees to, and
cause its majority owned subsidiaries and the Project to, provide CSFB, and CSFB
agrees to accept, the following assignments:
(a) CSFB will be sole lead manager or sole placement agent for any capital
markets or private financing by Probex or its majority owned subsidiaries
or the Project;
(b) CSFB will be sole lead manager of equity related transactions for Probex or
its majority owned subsidiaries or the Project; and
(c) CSFB will be sole lead arranger and book manager for any bank financing of
Probex or its majority owned subsidiaries or the Project,
As compensation for any of the foregoing services, CSFB will be paid customary
fees to be mutually agreed upon at the appropriate time. The terms of any such
additional engagements will be set forth in separate letter agreements to be
mutually agreed upon. Probex acknowledges that CSFB's obligation to accept any
such assignment is subject to
4
(i) approval of our Credit, Equity Valuation and Investment Banking Committees,
as applicable; (ii) satisfactory completion of all regulatory requirements
(including receipt of all necessary approvals) and compliance with all
applicable laws (including, without limitation, those laws governing the sale of
securities); (iii) satisfactory completion of due diligence customary in
transactions of the kind contemplated thereby; (iv) absence of any material
adverse change in the condition (financial and otherwise), business, results of
operations or prospects of Probex or its majority owned subsidiaries or the
Project, as applicable; (v) no adverse change in the business or financial
markets; and (vi) the execution of an underwriting agreement, purchase agreement
or similar transaction document containing customary terms acceptable to CSFB,
including appropriate indemnification provisions. The indemnity agreement
referred to below shall apply to CSFB's activities in connection with any such
additional assignment unless and until superseded by the indemnity provisions
Set forth in any executed agreement relating to such additional assignment and,
subject to the foregoing, shall remain in full force and effect regardless of
any completion, modification or termination of CSFB's engagement.
Since CSFB will be acting on behalf of Probex in connection with the transaction
contemplated herein, Xxxxxx has entered into a separate letter agreement with
CSFB, dated the date hereof, providing for the indemnification of CSFB and
certain related persons and entities.
Any amendment to this agreement must be in writing and executed by CSFB and
Probex. This agreement may be signed by CSFB, or Probex in separate counterparts
all of which together shall constitute a single agreement.
Probex agrees that CSFB has the right following the closing of a Financing to
place advertisements in financial and other newspapers and journals at its own
expense describing its services to Probex hereunder, provided that CSFB will
submit a copy of any such advertisements to Probex for its approval, which shall
not be unreasonably withheld.
CSFB agrees that Probex has the right place an announcement in such newspapers
and publications at its own expense, stating that CSFB has been retained as
exclusive financial advisor to Probex, provided that Probex will submit a copy
of any such draft announcement to CSFB for its prior written approval, which
shall not be unreasonably withheld.
In connection with this engagement, CSFB is acting as an independent contractor
with duties owing solely to Probex. This agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
conflicts of the law principles thereof,
If CSFB Is given the offer to complete a financing and CSFB declines, Probex is
free to pursue other alternatives without a payment of fees to CSFB.
5
We look forward to the opportunity to work with you on this assignment. If the
foregoing reflects your understanding, please sign two copies of this letter and
return one copy to CSFB.
Yours sincerely,
CREDIT SUISSE FIRST BOSTON CORPORATION
By:
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Managing Director
Agreed and accepted:
PROBEX CORP.
By: /s/ XXXXXXX X. XXXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Executive Officer & President
cc: Xxxxxxx X. Xxxx
Xxxxxxxx X. Xxxxx
Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
6
TO: Credit Suisse First Boston
Xxxxxx Xxxxxxx Xxxxxx XXXXXXX 00, 0000
Xxx Xxxx, Xxx Xxxx 00000-0000
In further consideration of the agreements contained in our engagement letter
dated the date hereof (the "engagement"), in the event that Credit Suisse First
Boston Corporation ("CSFB") or any of its affiliates, the respective directors,
officers, partners, agents or employees of CSFB or any of its affiliates, or
any other person controlling CSFB or any of its affiliates (collectively,
Indemnified Persons") becomes involved in any capacity in any action, claim,
suit, investigation or proceeding, actual or threatened, brought by or against
any person, including stockholders of PROBEX CORP. (the "Company"), in
connection with or as a result of the engagement or any matter referred to in
the engagement, the Company will reimburse such indemnified Person for its
reasonable and customary legal and other expenses (including without limitation
the costs and expenses incurred in connection with investigating, preparing for
and responding to third party subpoenas or enforcing the engagement) incurred in
connection therewith as such expenses are incurred, except in respect of
expenses that are incurred primarily as a result of Losses that are finally
determined by a court or arbitral tribunal to have resulted from the bad faith
or gross negligence of such Indemnified Person. The Company will also indemnify
and hold harmless any Indemnified Person from and against, and the Company
agrees that no Indemnified Person shall have any liability to the Company or
its owners, parents, affiliates, security holders or creditors for, any losses,
claims, damages or liabilities (including actions or proceedings in respect
thereof) (collectively, "Losses") (A) related to or arising out of (i) the
Company's actions or failures to act (including statements or omissions made or
information provided by the Company or its agents) or (ii) actions or failures
to act by an Indemnified Person with the Company's consent or in reliance on the
Company's actions or failures to act or (B) otherwise related to or arising out
of the engagement or CSFB's performance thereof, except that this clause (B)
shall not apply to any Losses to the extent they are finally determined by a
court or arbitral tribunal to have resulted from the bad faith or gross
negligence of such Indemnified Person. If such indemnification is for any reason
not available or insufficient to hold an Indemnified Person harmless, the
Company agrees to contribute to the Losses involved in such proportion as is
appropriate to reflect the relative benefits received (or anticipated to be
received) by the Company, on the one hand, and by CSFB, on the other hand, with
respect to the engagement or, if such allocation is determined by a court or
arbitral tribunal to be unavailable, in such proportion as is appropriate to
reflect other equitable considerations such as the relative fault of the Company
on the one hand and of CSFB on the other hand; provided, however, that, to the
extent permitted by applicable law, the Indemnified Persons shall not be
responsible for amounts which in the aggregate are in excess of the amount of
all fees actually received by CSFB from the Company in connection with the
engagement. Relative benefits to the Company, on the one hand, and CSFB, on the
other hand, with respect to the engagement shall be deemed to be in the same
proportion as (i) the total value paid or proposed to be paid or received or
proposed to be received by the Company or its security holders, as the case may
be, pursuant to the transaction(s), whether or not consummated, contemplated by
the engagement, bears to (ii) all fees actually received or proposed to be
received by CSFB pursuant to the transaction(s), whether or not consummated, in
connection with the engagement.
The Company will not, without CSFB's prior written consent, settle, compromise,
consent to the entry of any judgment in or otherwise seek to terminate any
action, claim, suit, investigation or proceeding in respect of which
indemnification may be sought hereunder (whether or not any Indemnified Person
is a party thereto) unless the Company exercises
7
reasonable efforts to assure that such settlement, compromise, consent or
termination includes a release of each Indemnified Person from any liabilities
arising out of such action, claim, suit, investigation or proceeding. The
Company will not permit any such settlement, compromise, consent or termination
to include a statement as to, or an admission of, fault, culpability or a
failure to act by or on behalf of an Indemnified Person, without such
Indemnified Person's prior written consent. No Indemnified Person seeking
indemnification, reimbursement or contribution under this agreement will,
without the Company's prior written consent, settle, compromise, consent to the
entry of any judgment in or otherwise seek to terminate any action, claim, suit,
investigation or proceeding referred to herein.
Prior to entering into any agreement or arrangement with respect to, or
effecting, any merger, statutory exchange or other business combination or
proposed sale or exchange, dividend or other distribution or liquidation of all
or a significant portion of its assets in one or a series of transactions or any
significant recapitalization or reclassification of its outstanding securities
that does not directly or indirectly provide for the assumption of the
obligations of the Company set forth herein. the Company will notify CSFB in
writing thereof (if not previously so notified) and, if requested by CSFB, shall
arrange in connection therewith alternative means of providing for the
obligations 01 the Company set forth herein, including the assumption of such
obligations by another party, insurance, surety bonds or the creation of an
escrow, in each case in an amount and upon terms and conditions satisfactory to
CSFB.
The Company's obligations hereunder shall be in addition to any rights that any
Indemnified Person may have at common law or otherwise, The Company acknowledges
that in connection with the engagement CSFB is acting as an independent
contractor and not in any other capacity with duties owing solely to the
Company. This agreement and any other agreements relating to the engagement
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 therein and, in
connection therewith, the parties hereto consent to the exclusive jurisdiction
of the Supreme Court of the State of New York sitting in New York County or the
United States District Court for the Southern District of New York and the
respective appellate courts thereof. Notwithstanding the foregoing, solely for
purposes of enforcing the Company's obligations hereunder, the Company consents
to personal jurisdiction, service and venue in any court proceeding in which any
claim subject to this agreement is brought by or against any Indemnified Person.
CSFB HEREBY AGREES, AND THE COMPANY XXXXXX AGREES ON ITS OWN BEHALF AND, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS SECURITY HOLDERS, TO WAIVE
ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION
ARISING OUT OF THE ENGAGEMENT OR CSFB'S PERFORMANCE THEREOF.
8
The provisions of this agreement shall apply to the engagement (including
related activities prior to the date hereof) and any modification thereof and
shall remain in full force and effect regardless of the completion or
termination of the engagement. If any term, provision, covenant or restriction
herein is held by a court of competent jurisdiction to be invalid, void or
unenforceable or against public policy, the remainder of the terms, provisions
and restrictions contained herein shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
Very truly yours,
PROBEX CORP.
By: /s/ XXXXXXX X. XXXXXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Executive Officer & President
Accepted and agreed to as of the date hereof:
CREDIT SUISSE FIRST BOSTON CORPORATION
By:
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Managing Director
