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EXHIBIT (C)(13)
Dealer-Manager Agreement
September 18, 1995
PaineWebber Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Gentlemen:
Xxxxxx Acquisition Corp., a Delaware corporation (the "Purchaser"), and
a wholly-owned subsidiary of Xxxxxx Xxxxxx, Inc., a Tennessee corporation (the
"Parent"), proposes to make an offer to purchase (together with any extensions
or amendments thereof or supplements thereto, the "Tender Offer") all of the
common stock, par value $0.10 per share (the "Securities"), of The X.X. Xxxxxx
Company, a Delaware corporation (the "Subject Company"). The making of the
Tender Offer, the purchase of Securities pursuant thereto, and all related
incidental acts and transactions are hereinafter referred to collectively as
the "Tender Offer Transactions." The following sets forth the agreement (the
"Agreement") between the Purchaser and the Parent and PaineWebber Incorporated
("PaineWebber"):
1. Appointment as Dealer Manager. The Purchaser and the Parent
hereby appoint PaineWebber on an exclusive basis to act as financial advisor
with respect to the Tender Offer Transactions and as sole dealer manager for
the Tender Offer, and hereby authorize PaineWebber to act as such in connection
therewith. PaineWebber agrees to perform those services as dealer manager with
respect to the Tender Offer as are customarily performed by PaineWebber in
connection with tender offers of a like nature (which services are comparable
to those generally performed in the industry), including (but not limited to)
using its best efforts to solicit tenders of Securities pursuant to the Tender
Offer and in communicating with other brokers, dealers, commercial banks, trust
companies and nominees (collectively, "Dealers"). In soliciting or obtaining
tenders, (i) PaineWebber, as dealer manager, shall not be deemed to be acting
as the agent of the Purchaser or the Parent other than pursuant to this
Agreement or as the agent of any Dealer and (ii) no Dealer shall be deemed to
be acting as the agent of PaineWebber. It is understood that PaineWebber is
being engaged hereunder solely to provide the services described above on
behalf of the Purchaser and the Parent, and that PaineWebber is not acting as
an agent or fiduciary of, and shall have no duties or liability to, the
equityholders of the Purchaser or the Parent or any other third party in
connection with its engagement hereunder, all of which are hereby expressly
waived.
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2. Tender Offer Materials. As soon as practicable following the
commencement of the Tender Offer, but in no event later than required by
applicable law, the Purchaser will file with the Securities and Exchange
Commission (the "Commission") a statement on Schedule 14D-1 with respect to the
Tender Offer and will promptly file as required any and all necessary
amendments and supplements to such statement on Schedule 14D-1. Such
statement, as amended from time to time, and the several exhibits thereto, are
hereinafter referred to as the "Schedule." The Schedule, the Offer to Purchase
and Letter of Transmittal contained therein, and all other statements and
documents filed or to be filed with any federal, state or local regulatory
authority and all other documents (including advertisements and other
communications) that the Purchaser or the Parent authorizes for use in
connection with the solicitation of tenders for the Securities, in each case as
amended or supplemented from time to time, are hereinafter referred to as the
"Tender Offer Documents." The Purchaser and the Parent agree to furnish
PaineWebber, at their expense, with as many copies as PaineWebber may request
of the Offer to Purchase, the Letter of Transmittal, and any other Tender Offer
Document that PaineWebber may reasonably request. The Purchaser and the Parent
represent to PaineWebber that the Tender Offer Documents are, and at all times
during the Tender Offer (as from time to time amended or supplemented) will be,
in compliance as to form in all material respects with all applicable rules and
regulations, including, without limitation, the Securities Exchange Act of
1934, as amended (the "Exchange Act") and, the rules and regulations
thereunder, and that none of the Tender Offer Documents contains or will
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
light of the circumstances under which they were made, not misleading, except
that no representation is made with respect to any statements contained in the
Tender Offer Documents in reliance upon and in conformity with information
furnished in writing by PaineWebber expressly for use therein.
The Purchaser and the Parent agree that, a reasonable time prior to
using any material in connection with the Tender Offer or filing any such
material with the Commission or any other federal or state agency, commission
or instrumentality (collectively, "Other Agencies"), the Purchaser will submit
copies of such material to PaineWebber and will consult with PaineWebber and
give reasonable consideration to its comments, if any, with respect thereto.
In the event that (i) the Purchaser or the Parent uses or permits the use of
any material in connection with the Tender Offer or files any such material
with the Commission or Other Agencies (a) that has not been submitted to
PaineWebber for its comments or (b) that has been so submitted and with respect
to which PaineWebber made material comments to the Purchaser or the Parent but
which comments have not been reflected to PaineWebber's reasonable
satisfaction, or (ii) either the Purchaser or the Parent shall have breached,
in any material respect, any of its representations, warranties, agreements or
covenants herein, then PaineWebber shall be entitled to withdraw as dealer
manager in connection with the Tender Offer without any liability or penalty or
loss of rights on the part of PaineWebber or any other person or entity defined
in paragraph 6 hereof as an "Indemnified Person," and PaineWebber shall remain
entitled to receive the payment of all fees and expenses payable under this
Agreement that have accrued to the date of any such withdrawal.
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3. Compensation. In addition to the compensation to be paid by
the Parent pursuant to a letter agreement dated January 18, 1994 between
PaineWebber and the Parent, the Parent shall pay PaineWebber upon the signing
of this Agreement a fee of $50,000 in connection with its services under this
Agreement.
4. Expenses; Reimbursement Thereof. The Purchaser and/or the
Parent will pay or cause to be paid (i) all fees and expenses relating to the
preparation, printing, filing, mailing and publishing of all documents
pertaining to the Tender Offer; (ii) all fees and expenses of any depositary,
information agent or other agents, attorneys and other persons retained by the
Purchaser in connection with the Tender Offer; (iii) all fees, if any, payable
to Dealers (including PaineWebber) as reimbursement for their customary mailing
and handling expenses in forwarding materials related to the Tender Offer to
their customers; (iv) all advertising charges; and (v) all other fees and
expenses incurred in connection with or relating to the Tender Offer. In
addition, the Purchaser and the Parent, jointly and severally, agree to
reimburse PaineWebber and its affiliates, promptly upon request, for all
reasonable out-of-pocket expenses, including (without limiting the foregoing)
the fees, costs and expenses of PaineWebber's legal counsel, incurred in
connection with the Tender Offer Transactions.
5. Limitation on Liability. Neither PaineWebber nor any
affiliate thereof shall have any liability to the Purchaser or the Parent or
any affiliate thereof for any losses, claims, damages, liabilities or expenses
arising from any act or omission on the part of any Dealer, or from
PaineWebber's acts or omissions in performing its obligations hereunder or
otherwise in connection with the Tender Offer Transactions, except to the
extent that such losses, claims, damages, liabilities or expenses are finally
judicially determined by a court of competent jurisdiction to have resulted
primarily from PaineWebber's bad faith, willful misconduct or gross negligence.
6. Indemnification and Contribution. The Purchaser and the
Parent, jointly and severally, hereby agree (i) to indemnify and hold harmless
PaineWebber, its affiliated companies, and each of PaineWebber's and such
affiliated companies' respective officers, directors, agents, employees and
controlling persons (within the meaning of Section 20 of the Exchange Act and
Section 15 of the Securities Act of 1933, as amended) (each of the foregoing,
including PaineWebber, being hereafter sometimes called an "Indemnified
Person"), to the fullest extent permitted by law from and against any and all
losses, claims, damages, expenses (including reasonable fees, disbursements and
other charges of counsel), actions (including actions brought by the Parent,
the Purchaser or their respective equityholders or derivative actions brought
by any person claiming through the Parent, the Purchaser or in either of their
names), proceedings or investigations (whether formal or informal), or threats
thereof (all of the foregoing being hereinafter referred to as "Liabilities"),
based on or arising out of (1) any untrue statement or alleged untrue statement
of any material fact in any Tender Offer Document, (2) any omission or alleged
omission of any material fact required to be stated in any Tender Offer
Document or necessary to make the statements made in any Tender Offer Document,
in light of the circumstances under which they were made, not misleading, (3)
any withdrawal, termination or cancellation of any one or more of the Tender
Offer Transactions for any reason whatsoever,
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(4) any tender, purchase or other acquisition by the Purchaser or the Parent or
any affiliate thereof of Securities (including, without limiting the foregoing,
any purchase prior to any date hereof as to which PaineWebber acted an broker
or dealer), (5) any violation by or conflict of the Tender Offer or any of the
Tender Offer Transactions of or with any law, rule, regulation, order, award,
judgment, determination, writ, injunction or decree of any United States
federal, state, local or foreign court or governmental authority, (6) any
breach by the Purchaser or the Parent of any representation or warranty or any
failure to comply with any of the agreements contained herein or any agreements
relating to the Tender Offer or the Tender Offer Transactions or (7) otherwise
arising out of, relating to or in connection with the Tender Offer, the Tender
Offer Transactions or PaineWebber's engagement hereunder, and (ii) in
connection with the foregoing obligations, to reimburse each Indemnified Person
for all reasonable expenses (including fees, disbursements and other charges of
counsel) as they are incurred by such Indemnified Person in connection with
investigating, preparing to defend or defending any such action (including
actions brought by us or our equityholders or derivative actions brought by any
person claiming through us or in our name), proceeding, investigation or
inquiry, or threat thereof, whether or not any such action, proceeding,
investigation or inquiry is actually or formally commenced or any such
Indemnified Person is a party thereto or subject thereof. Notwithstanding the
foregoing, the Purchaser and the Parent shall not be obligated to indemnify any
such Indemnified Person under this Section 6 with respect to any Liability, and
amounts paid in reimbursement of expenses under this Section 6 shall be
refunded, to the extent, but only to the extent, that it is finally judicially
determined (a) that such Liability resulted primarily from an untrue statement
of any material fact in any Tender Offer Document or any omission to state any
material fact required to be stated in any Tender Offer Document, or necessary
to make the statements made therein, in light of the circumstances under which
they were made, not misleading, if, in any such case, such statement or
omission was made in such Tender Offer Document in reliance upon and in
conformity with written information prepared by PaineWebber and furnished to
the Purchaser or the Parent in writing by PaineWebber or (b) in the case of
Liabilities against which Indemnified Persons are indemnified solely under
clause (i) (7) of the preceding sentence, that such Liability resulted
primarily from the bad faith, willful misconduct or gross negligence of such
Indemnified Person.
If any litigation, proceeding or investigation is instituted or
threatened against any Indemnified Person in respect of which indemnity may be
sought against the Purchaser or the Parent pursuant to this Section 6, such
Indemnified Person shall promptly notify the Purchaser or the Parent thereof,
but the omission so to notify the Purchaser or the Parent shall not relieve the
Purchaser or the Parent from any obligation or liability under this Section 6,
unless, and only to the extent that, such omission so to notify results in the
loss of substantive rights or defenses. If any such litigation or proceeding
shall be brought against any Indemnified Person, the Purchaser and/or the
Parent shall be entitled to participate in such litigation or proceeding, and,
after written notice from the Purchaser or the Parent to such Indemnified
Person, to assume the defense of such litigation or proceeding with counsel of
the Purchaser's or the Parent's choice at its expense; provided, however, that
such counsel shall be reasonably satisfactory to the Indemnified Person.
Notwithstanding the election of the Purchaser or the Parent to assume the
defense of such litigation or proceeding, such Indemnified Person shall have
the right to employ
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separate counsel and to control its own defense of such litigation or
proceeding, and the Purchaser and the Parent, jointly and severally, shall bear
the fees and disbursements of such separate counsel, if, in the reasonable
opinion of counsel to such Indemnified Person, (i) there may be legal defenses
available to such Indemnified Person or to other Indemnified Persons that are
different from or additional to those available to the Purchaser or the Parent
or (ii) a conflict or potential conflict otherwise exists between such
Indemnified Person and the Purchaser or the Parent that would make such
separate representation advisable; provided, however, that the Purchaser and
the Parent shall not under any circumstances be liable hereunder for the
expenses of more than one firm of attorneys in any jurisdiction in any one
legal action or group of related legal actions. The Purchaser and the Parent
agree that they will not, without the prior written consent of PaineWebber
(which consent shall not be unreasonably withheld), settle or compromise or
consent to the entry of any judgment in any pending or threatened claim, action
or proceeding relating to the Tender Offer Transactions or PaineWebber's
engagement hereunder (whether or not any Indemnified Person is a party thereto)
unless such settlement, compromise or consent includes an unconditional release
of PaineWebber and each other Indemnified Person from all liability arising or
that may arise out of such claim, action or proceeding.
If the indemnification provided for in this Section 6 is held by a
court of competent jurisdiction to be unavailable to any Indemnified Person in
respect of any Liabilities referred to herein (other than as a consequence of a
final judicial determination as set forth in the second sentence of the first
paragraph of this Section 6, then the Purchaser and the Parent, in lieu of
indemnifying such Indemnified Person, shall, jointly and severally, contribute
to the amount paid or payable by such Indemnified Person as a result of such
Liabilities in such proportion as is appropriate to reflect the relative
benefits received by the Purchaser and the Parent on the one hand and by such
Indemnified Person on the other from the Tender Offer Transactions. If the
allocation provided in the preceding sentence is not permitted by applicable
law, or as a consequence of a final judicial determination as set forth in the
second sentence of the first paragraph of this Section 6, then the Purchaser
and the Parent agree to contribute to the amount paid or payable by such
Indemnified Person as a result of such Liabilities in such proportion as is
appropriate to reflect not only the relative benefits referred to in the
preceding sentence, but also the relative fault of the Purchaser and the Parent
on the one hand and of such Indemnified Person on the other in connection with
the statements or omissions or other actions relating to or in connection with
the Tender Offer Transactions or PaineWebber's engagement hereunder that
resulted in such Liabilities. Notwithstanding the foregoing, in no event shall
the aggregate amount contributed by the Indemnified Persons taking into account
the contribution of Purchaser and the Parent as described above exceed the
amount actually paid to PaineWebber by the Purchaser and the Parent pursuant to
this Agreement in connection with the Tender Offer Transactions. The relative
benefits received by the Purchaser and the Parent on the one hand and
PaineWebber on the other shall be deemed to be in the same proportion as (i)
the aggregate purchase price paid or proposed to be paid for the maximum number
of Securities offered to be purchased pursuant to the Tender Offer bears to
(ii) the fees paid to PaineWebber pursuant to this Agreement. The relative
fault of the Purchaser and the Parent on the one hand and of PaineWebber on the
other shall be determined by reference to, among other things, whether any
untrue or alleged untrue statement of, or any omission or alleged omission to
state a material fact
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relates to information supplied by the Purchaser or the Parent or by
PaineWebber and by reference to the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The foregoing indemnification and contribution agreement shall be in
addition to any rights that any Indemnified Person may have at common lav, by
separate agreement or otherwise.
7. Representations, Warranties and Covenants. The Purchaser
and the Parent, jointly and severally, represent and warrant to, and covenant
with, PaineWebber that:
(i) each of the Purchaser and the Parent is a corporation duly
organized and validly existing in good standing under the laws of its state of
incorporation, and each of the Purchaser and the Parent has all necessary
corporate power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the Tender Offer Transactions;
(ii) each of the Purchaser and the Parent have taken all necessary
corporate action to authorize the Tender Offer Transactions, and no other
corporate proceedings by the Purchaser or the Parent are necessary to authorize
any such transactions;
(iii) this Agreement has been duly authorized, executed and delivered
by, and is a legal, valid and binding agreement of, each of the Purchaser and
the Parent and is enforceable against the Purchaser and the Parent in
accordance with its terms;
(iv) the Tender Offer Transactions comply and will comply in all
material respects with all applicable requirements of law, including without
limitation all federal securities laws, the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), the corporate laws of the
state in which the Subject Company in incorporated and any applicable state
takeover or "blue sky" laws;
(v) neither the Purchaser, the Parent nor any of their affiliates has
any knowledge of any material fact or information concerning the Subject
Company that is required to be disclosed to the public as a condition to the
purchase of Securities and that has not been, or is not being, or will not be,
disclosed to the public through the Tender Offer Documents or otherwise;
(vi) except as may be required by law and except with respect to
advice or opinions previously made public by PaineWebber, neither the
Purchaser, the Parent nor any affiliate thereof shall publicly disclose or
refer to any opinion or advice rendered by PaineWebber to the Purchaser or the
Parent without PaineWebber's prior written consent; and
(vii) except as would not have a material adverse effect on the
ability of the Purchaser or the Parent to perform its obligations hereunder and
to consummate the Tender Offer Transactions and the other transactions
contemplated herein, the Tender Offer Transactions and the execution and
delivery of, and the consummation of the transactions contemplated in, this
Agreement do not and will not (i) conflict with or violate the certificate of
incorporation or by-
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law of the Purchaser or the Parent, (ii) conflict with or violate any order,
judgment or decree applicable to the Purchaser or the Parent or by which any
property or asset of the Purchaser or the Parent is bound, or (iii) result in a
breach of or constitute a default (or any event which with notice or lapse of
time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or other encumbrance on any property or asset of the
Purchaser or the Parent pursuant to, any loan or credit agreement, indenture,
mortgage, note or other agreement or instrument to which the Purchaser or the
Parent or any of their subsidiaries or affiliates is a party or by which any of
them or any of their respective properties or assets is bound.
8. Certain Events. The Purchaser will advise PaineWebber as
promptly as is practicable of (i) the occurrence of any event which might
reasonably cause the Purchaser to withdraw, rescind or terminate the Tender
Offer, or which might reasonably permit the Purchaser to exercise any right not
to purchase Securities tendered pursuant to the Tender Offer or to consummate
the transactions contemplated in the Tender Offer Documents, (ii) any material
information relating to the Tender Offer, including, without limitation, any
proposal or requirement to make, amend or supplement any filing required by the
Exchange Act, (iii) the issuance of any comment or order or the taking of any
other action by the Commission or any Other Agency concerning the Tender Offer,
(iv) any request for additional information or other action by the Federal
Trade Commission or the Antitrust Division of the Department of Justice under
the HSR Act, or the rules promulgated thereunder, and (v) any other information
relating to the Tender Offer or the transactions contemplated in the Tender
Offer Documents which PaineWebber may from time to time reasonably request.
9. Securityholder Information. The Purchaser and the Parent will
cause PaineWebber to be provided, to the extent the same is available to the
Purchaser and the Parent, with any cards or lists showing the names and
addresses of, and the number of Securities held by, the holders of Securities
as of a recent date and will endeavor to cause PaineWebber to be advised from
day to day (or from time to time as may be reasonable in the circumstances)
during the period of the Tender Offer as to any transfers of record of the
Securities known to the Purchaser and the Parent.
The Purchaser and the Parent have appointed, and authorize PaineWebber
to communicate with, Trust Company Bank to serve as Depositary and X.X. Xxxx &
Co., Inc. to serve as Information Agent in connection with the Tender Offer
and have instructed the Depositary to advise you daily as to such matters as
you may reasonably request.
10. Miscellaneous. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely in such state.
The agreements contained in Sections 3, 5 and 6 and the
representations and warranties contained in Sections 2 and 7 shall remain
operative and in full force regardless of (i) any failure to commence, or the
withdrawal, termination or consummation of, the Tender Offer, (ii) any
investigation made by or on behalf of any Indemnified Person, (iii) any
withdrawal by PaineWebber
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as dealer manager for the Tender Offer pursuant to Section 2 or otherwise or
(iv) any termination of this Agreement.
Simultaneously with the execution and delivery of this Agreement, the
Purchaser and the Parent shall deliver to you the opinion of Bass, Xxxxx &
Xxxx, counsel for the Purchaser and the Parent, in the form attached hereto as
Exhibit A.
This Agreement shall be binding upon the parties hereto, and the
respective successors and permitted assigns of each, and shall inure to the
benefit of the parties hereto and the other Indemnified Persons, and the
respective successors and permitted assigns of the foregoing.
If any provision of this Agreement shall be determined to be invalid
or unenforceable in any respect, such determination shall not affect such
provision in any other respect or any other provision of this Agreement, which
shall remain in full force and effect. This Agreement may not be amended or
otherwise modified or waived except by an instrument in writing signed by each
party hereto.
All notices and other communications required or permitted to be given
under this Agreement shall be in writing and shall be deemed to have been duly
given if delivered in person, by cable, telecopy, telegram or telex or by
registered or certified mail (postage prepaid, return receipt requested) to the
parties hereto as follows (or, as to each party, at such other address as shall
be designated by such party in a written notice complying as to delivery with
the terms of this paragraph):
(a) If to PaineWebber:
PaineWebber Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxxx
(b) If to the Parent or Purchaser:
Xxxxxx Xxxxxx, Inc.
Xxxxxx Place at Xxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxx X. Xxxxxx
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PAINEWEBBER INCORPORATED
By: /s/ Xxxxxxx X. Xxxxx
---------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
XXXXXX XXXXXX, INC.
By: /s/ Xxx X. Xxxxxx
---------------------------
Name: Xxx X. Xxxxxx
Title: Executive Vice President
and Secretary
XXXXXX ACQUISITION CORP.
By: /s/ Xxx X. Xxxxxx
---------------------------
Name: Xxx X. Xxxxxx
Title: Secretary
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Exhibit A
It is our opinion that:
(1) Xxxxxx Xxxxxx, Inc. (the "Parent") is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Tennessee and has all requisite corporate power and authority to own, lease and
operate its properties and to carry on its business as now being conducted,
except where the failure to be so existing or to have such power or authority
would not, in the aggregate, have a material adverse effect on the business of
the Parent and its subsidiaries, taken as a whole;
(2) Xxxxxx Acquisition Corp. (the "Purchaser") is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority to own,
lease and operate its properties and to carry on its business as now being
conducted, except where the failure to be so existing and in good standing or
to have such power or authority would not, in the aggregate, have a material
adverse effect on the business of the Purchaser. All of the outstanding
capital stock of the Purchaser is owned, directly or indirectly, by the Parent;
(3) the Dealer Manager Agreement has been duly authorized by each
of the Purchaser and the Parent and is a legal, valid and binding agreement of
each of them, except that (i) such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought;
(4) all legally required proceedings in connection with the making
and
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consummation of the Tender Offer and financing thereof, in accordance with the
terms of the Offer to Purchase, have been taken, and all orders, consents or
other authorizations or approvals of any public board or body legally required
for such purchase or of any transaction involving the Purchaser or the Parent
thereunder have been obtained, except as set forth in the Offer to Purchase;
(5) to the best of our knowledge, there is no restraining or other
order in effect and there is no legal or governmental proceeding pending or
threatened to which the Purchaser or the Parent is, or is threatened to be, a
party or of which the business or property of the Purchaser or the Parent is,
or is threatened to be, the subject, that is related to the Tender Offer,
except as set forth in the Offer to Purchase;
(6) except as set forth in the Offer to Purchase, neither the
Purchaser nor the Parent is in violation of its Certificate of Incorporation or
Bylaws, nor to the best of our knowledge is the Purchaser or the Parent in
default in the performance of any obligation, agreement or condition contained
in any license, franchise, permit, mortgage, bond, debenture, note, indenture,
other evidence of indebtedness or other agreement known to us, where such
default could have a material adverse effect on the ability of the Purchaser or
the Parent to consummate the Tender Offer or the transactions contemplated by
the Dealer Manager Agreement, and the execution and delivery of the Dealer
Manager Agreement and the making and consummation of the Tender Offer and the
fulfillment of the terms thereof will not conflict with, or constitute a breach
of or default under, the Certificate of Incorporation or Bylaws of the
Purchaser or the Parent or any agreement, indenture or other instrument known
to us to which the Purchaser or the Parent is a party or by which either of
them or their respective property is bound
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or any law, rule, regulation, order, written injunction or court or
governmental decree known to us which is applicable to the Purchaser or the
Parent; and
(7) Except as to (i) financial statements, schedules and other
financial and statistical data and (ii) information relating to the business or
description of the Subject Company included therein, as to which we do not
express any opinion, (A) we are of the opinion that any application made by the
Purchaser and the Parent under the HSR Act and the regulations thereunder (the
"HSR Application"), the Offer to Purchase, the Schedule, any filing made with
the New York Stock Exchange or American Stock Exchange and any applications
made by the Purchaser or the Parent under takeover statutes, securities laws
and Blue Sky laws of various states, in connection with the Tender Offer (the
"Other Applications"), if any, do or will, as filed, comply as to form in all
material respects with applicable legal requirements, including, but not
limited to, the Securities Act of 1933, as amended, the Exchange Act and the
rules and regulations promulgated thereunder and, in the case of the Offer to
Purchase and the Schedule, include the documents required to be filed as
exhibits with the Commission, and (B) nothing has come to our attention that
causes us to believe that the HSR Application, the Offer to Purchase, the
Schedule, or the Other Applications, if any, contains or will contain any
untrue statements of material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading.
Very truly yours,
Bass, Xxxxx & Xxxx
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