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EXHIBIT (c)(1)
FORM OF CONVERSION OFFER ADVISOR AGREEMENT
November 7, 1997
PERSONAL & CONFIDENTIAL
Xxxxxx Xxxxxxxxxxx
Township Line & Union Meeting Roads
Blue Xxxx, PA 19424-001
Attention: Xx. Xxxxx X. Xxxxx
Vice President & Treasurer
Gentlemen:
This letter confirms the agreement (the "Agreement") between Xxxxxx Xxxxxxxxxxx
("Unisys" or the "Company") and Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx") as
follows:
1. The Company hereby engages Bear Xxxxxxx to render financial
advisory services (the "Services") to the Company in
connection with the Company's offer of premium upon conversion
("the Offer") of the Company's 8-1/4% Convertible Notes due
2006 ("the Notes").
2. Bear Xxxxxxx hereby accepts the engagement and, in that
connection, agrees to advise the Company with respect to the
Offer of premium upon conversion.
3. In connection with Bear Xxxxxxx' engagement, the Company will
furnish Bear Xxxxxxx with all information concerning the
Company, the Notes, and the Offer which Bear Xxxxxxx deems
appropriate and will provide Bear Xxxxxxx with access to the
Company's officers, directors, employees, accountants, counsel
and other representatives (collectively, the
"Representatives").
The Company recognizes and confirms that in performing its
duties pursuant to this Agreement, Bear Xxxxxxx will be using
and relying entirely on data, material and other information
(the "Information") furnished by the Company and its
Representatives. The Company hereby agrees and represents that
all Information furnished to Bear Xxxxxxx pursuant to this
Agreement shall be accurate and complete in all material
respects at the time provided, and that if the Information
becomes inaccurate, incomplete or misleading during the term
of Bear Xxxxxxx' engagement hereunder, the Company shall so
notify Bear Xxxxxxx in writing. The Company further represents
and warrants that any projections or other Information
provided by it to Bear Xxxxxxx will have been prepared in good
faith and will be based upon assumptions which, in light of
the circumstances under which they are made, are reasonable.
Accordingly, Bear Xxxxxxx assumes no responsibility for the
accuracy and completeness of the Information. In rendering its
services hereunder, Bear Xxxxxxx will be using and relying
upon the Information without
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November 7, 1997
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independent investigation or verification thereof or
independent evaluation of any of the assets or liabilities of
the Company. All material non-public information concerning
the Company which is given to Bear Xxxxxxx will be used solely
in the course of the performance of Bear Xxxxxxx' services
hereunder and will be treated confidentially by Bear Xxxxxxx
for so long as it remains non-public. Except as otherwise
required by law, Bear Xxxxxxx will not disclose this
Information to any third party without the Company's consent.
4. As compensation for Bear Xxxxxxx' services hereunder, the
Company will pay to Bear Xxxxxxx an advisory fee of
$250,000.00 payable upon execution of this letter.
5. The Company shall reimburse Bear Xxxxxxx for all of its
reasonable out-of-pocket fees, expenses and costs (including,
but not limited to, travel, accommodations, telephone, courier
and supplies) in connection with the performance of its
activities under this Agreement.
All such fees, expenses and costs will be billed periodically
by Bear Xxxxxxx and are payable when invoiced. Upon
termination or expiration of this Agreement or completion of
Bear Xxxxxxx' assignment, any unreimbursed fees and expenses
will be immediately due and payable. Any obligation pursuant
to this Paragraph 5 shall survive the termination or
expiration of this Agreement.
6. The Company agrees to indemnify Bear Xxxxxxx in accordance
with the indemnification provisions (the "Indemnification
Provisions") attached to this Agreement, which Indemnification
Provisions are incorporated herein and made a part hereof and
which shall survive the termination, expiration or
supersession of this Agreement.
7. Bear Xxxxxxx' engagement hereunder may be terminated at any
time by the Company or by Bear Xxxxxxx, upon written notice
thereof to the other party, provided, however, any termination
of Bear Xxxxxxx' engagement hereunder shall not affect the
Company's obligation to pay fees and expenses to the extent
provided for herein and to indemnify Bear Xxxxxxx and certain
related persons and entities with respect to actions and
omissions prior to such termination as provided in the
Indemnification Provisions.
8. Except as required by applicable law or otherwise provided
above, no opinion rendered or advice given by Bear Xxxxxxx,
whether formal or informal, may be disclosed in whole or in
part, or summarized, excerpted from or otherwise publicly
referred to, or made available to third parties without Bear
Xxxxxxx' prior written consent. In addition, neither Bear
Xxxxxxx nor its advice may be otherwise publicly referred to
without its prior written consent.
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November 7, 1997
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9. The Company agrees that, following the completion of the
Offer, Bear Xxxxxxx has the right to place advertisements in
financial and other newspapers and journals at its own expense
describing its services to the Company hereunder, provided
that Bear Xxxxxxx will submit a copy of any such
advertisements to the Company for its approval, which approval
shall not be unreasonably withheld or delayed.
10. This Agreement does not create, and shall not be construed as
creating, rights enforceable by any person or entity not a
party hereto, except those who may be entitled thereto by
virtue of paragraph 6 and the Indemnification Provisions
hereof. The Company acknowledges and agrees that: (i) Bear
Xxxxxxx is being retained to provide Services to the Company
and that Bear Xxxxxxx is not being retained to advise the
Company on, or to express any opinion as to, the wisdom,
desirability or prudence of consummating a transaction and
(ii) Bear Xxxxxxx is not and shall not be construed as a
fiduciary of the Company and shall have no duties or
liabilities to the equity holders or creditors of the Company
or any other person by virtue of this Agreement or the
retention of Bear Xxxxxxx hereunder, all of which are hereby
expressly waived. The Company also agrees that Bear Xxxxxxx
shall not have any liability (whether direct or indirect, in
contract, tort or otherwise) to the Company or to any person
(including, without limitation, equity holders and creditors
of the Company) claiming through the Company for or in
connection with the engagement of Bear Xxxxxxx, this Agreement
and the transactions contemplated hereby other than any such
liability that is found in a final judgment by a court of
competent jurisdiction (not subject to appeal) to have
resulted primarily and directly from the negligence or willful
misconduct of Bear Xxxxxxx. The Company acknowledges that Bear
Xxxxxxx was induced to enter into this Agreement by, inter
alia, the provisions of this paragraph.
11. Bear Xxxxxxx acknowledges that the Offer is being made in
reliance on the exemption from the registration requirements
of the Securities Act of 1933, as amended, afforded by Section
3(a)(9) thereof and accordingly agrees that it will not in any
way solicit conversions of the Notes or take any other actions
that could cause the exemption afforded by Section 3(a)(9) to
no longer be available.
12. The Company and Bear Xxxxxxx acknowledge and agree that there
are no brokers, representatives or other persons which have an
interest in compensation due to Bear Xxxxxxx from any
transactions contemplated herein.
13. If any provision of this Agreement shall be held or made
invalid by a statute, rule, regulation, decision of a tribunal
or otherwise, the remainder of this Agreement shall not
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November 7, 1997
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be affected thereby and, to this extent, the provisions of
this Agreement shall be deemed to be severable.
14. The undersigned represents and warrants that it has all
requisite power and authority, and all necessary
authorizations, to enter into and carry out the terms and
provisions of this Agreement.
15. In connection with this engagement Bear Xxxxxxx is acting as
an independent contractor with duties owing solely to the
Company. This Agreement may not be amended or modified except
in writing and shall be governed by and construed in
accordance with the laws of the State of New York, without
regard to conflicts of law principles thereof.
We are delighted to accept this engagement and look forward to working with you
on this assignment. Please confirm that the foregoing is in accordance with your
understanding by signing and returning to us the enclosed duplicate of this
letter.
Very truly yours,
BEAR, XXXXXXX & CO. INC.
By: /s/Fares X. Xxxxxxx
Fares X. Xxxxxxx
Senior Managing Director
ACCEPTED AND AGREED TO:
XXXXXX XXXXXXXXXXX
By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Vice President & Treasurer
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INDEMNIFICATION PROVISIONS
Xxxxxx Xxxxxxxxxxx (the "Company") agrees to indemnify and hold
harmless Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx"), to the fullest extent
permitted by law, from and against any and all losses, claims, damages,
liabilities, obligations, penalties, judgments, awards, costs, expenses and
disbursements (and any and all actions, suits, proceedings and investigations in
respect thereof and any and all legal and other costs, expenses and
disbursements in giving testimony or furnishing documents in response to a
subpoena or otherwise), including, without limitation, the costs, expenses and
disbursements, as and when incurred, of investigating, preparing or defending
any such action, suit, proceeding or investigation (whether or not in connection
with litigation in which Bear Xxxxxxx is a party), directly or indirectly,
caused by, relating to, based upon, arising out of or in connection with (a) the
letter agreement dated November 10 , 1997 between Bear Xxxxxxx and the Company,
as it may be amended from time to time (the "Agreement") or (b) any untrue
statement or alleged untrue statement of a material fact contained in, or
material omissions or alleged material omissions from, any information furnished
by the Company to Bear Xxxxxxx; provided, however, such indemnity agreement
shall not apply to any portion of any such loss, claim, damage, obligation,
penalty, judgment, award, liability, cost, expense or disbursement to the extent
it is found in a final judgment by a court of competent jurisdiction (not
subject to further appeal) to have resulted primarily and directly from the
negligence or willful misconduct of Bear Xxxxxxx.
These indemnification provisions shall be in addition to any liability
which the Company may otherwise have to Bear Xxxxxxx or the persons indemnified
below in this sentence and shall extend to the following: The Bear Xxxxxxx
Companies Inc., Bear, Xxxxxxx & Co. Inc., their respective affiliated entities,
directors, officers, employees, and controlling persons (within the meaning of
the federal securities laws). All references to Bear Xxxxxxx in this
Indemnification Agreement shall be understood to include any and all of the
foregoing.
If any action, suit, proceeding or investigation is commenced, as to
which Bear Xxxxxxx proposes to demand indemnification, it shall notify the
Company with reasonable promptness; provided, however, that any failure by Bear
Xxxxxxx to notify the Company shall not relieve the Company from its obligations
hereunder. Bear Xxxxxxx shall have the right to retain counsel of its own choice
to represent it, and the Company shall pay the fees, expenses and disbursements
of such counsel; and such counsel shall, to the extent consistent with its
professional responsibilities, cooperate with the Company and any counsel
designated by the Company. The Company shall be liable for any settlement of any
claim against Bear Xxxxxxx made with the Company's written consent, which
consent shall not be unreasonably withheld. The Company shall not, without the
prior written consent of Bear Xxxxxxx, settle or compromise any claim, or permit
a default or consent to the entry of any judgment in respect thereof, unless
such settlement, compromise, or consent includes, as an unconditional term
thereof, the giving by the claimant to Bear Xxxxxxx of an unconditional release
from all liability in respect of such claim.
In order to provide for just and equitable contribution, if a claim for
indemnification pursuant to these indemnification provisions is made but it is
found in a final judgment by a court of competent jurisdiction (not subject to
further appeal) that such indemnification may not be enforced in such case, even
though the express provisions hereof provide for indemnification in such case,
then the Company, on the one hand, and Bear Xxxxxxx, on the other hand, shall
contribute to the losses, claims, damages, obligations, penalties, judgments,
awards, liabilities, costs, expenses and disbursements to which the indemnified
persons may be subject in accordance with the relative benefits received by the
Company, on the one hand, and Bear Xxxxxxx, on the other hand, and also the
relative fault of the Company, on the one hand, and Bear Xxxxxxx, on the other
hand, in connection with the statements, acts or omissions which resulted in
such losses, claims, damages, obligations, penalties, judgments, awards,
liabilities, costs, expenses and disbursements and the relevant equitable
considerations shall also be considered. No person found liable for a fraudulent
misrepresentation shall be entitled to contribution from any person who is not
also found liable for such fraudulent misrepresentation. Notwithstanding the
foregoing, Bear Xxxxxxx shall not be obligated to contribute any amount
hereunder that exceeds the amount of fees previously received by Bear Xxxxxxx
pursuant to the Agreement.
Neither termination nor completion of the engagement of Bear Xxxxxxx
referred to above shall affect these indemnification provisions which shall then
remain operative and in full force and effect.
