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EXHIBIT 10.14
APS FINANCIAL CORPORATION
July 21, 1999
CONFIDENTIAL
Probex Corp.
0000 XxXxx, Xxxxx 000
Xxxxxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Chief Executive Officer
Gentlemen:
The purpose of this letter (this "Letter Agreement") is to
confirm the engagement of APS Financial Corporation, a Colorado
corporation ("APS Financial") to act as exclusive placement agent to
the Probex Corp. (the "Company") in connection with a proposed private
placement (the "Placement") of the Company's 10% Cumulative Convertible
Preferred Stock (the "Securities"),
1. Engagement, It is expressly understood and acknowledged that APS
Financial's engagement hereunder does not constitute any commitment, expressed
or implied, on the part of APS Financial to purchase or place the Securities and
that the placement of the Securities by APS Financial will be made on a "best
efforts" basis,
(a) The Company will offer, on an exclusive basis, through APS
Financial, up to Five Million Dollars ($5,000,000) of the Securities. The
Securities will be sold for Ten Dollars per share ($10/ share). Upon written
consent of the Company, the Company will offer, through APS Financial on the
same terms and conditions provided herein, an additional Two Million Dollars
($2,000,000) in Securities, aggregating up to a total of Seven Million Dollars
($7,000,000). The Securities shall have such other rights and preferences as
shall agreed upon by APS Financial and the Company. Furthermore, purchasers of
the Securities shall receive "piggyback" registration rights with respect to the
Company common stock obtainable by them, through conversion or dividend, that
will be senior to all other registration rights except only those already
granted to HSB Engineering Finance Corporation (HSB) pursuant to that certain
Investors Rights Agreement dated June 30, 1998. Purchasers of the Securities
will be entitled to receive the annual audited, and quarterly unaudited,
financial statements at the same time as provided to HSB until such time as the
Company commences the filing of periodic reports pursuant to the Securities
Exchange Act of 1934.
(b) It is understood and agreed between the Company and APS Financial
that it shall be the obligation of the Company to (i) prepare, and provide an
adequate supply of, the offering memorandum (the "Memorandum"), subscription
materials and other related documentation (together with the Memorandum, the
"Offering Materials") and (ii) qualify the sales of the Securities (through
filing or other required action) with the Securities and Exchange Commission
(the "SEC") and under any other applicable state securities law or agency.
[SIPC LOGO]
[APS FINANCIAL CORPORATION LETTERHEAD]
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Probex Corp.
July 21, 1999
Page 2
(c) The Company represents and warrants that this Letter Agreement and
the transactions contemplated hereunder do not violate, conflict with, give rise
to any right of first refusal to purchase the Securities, or constitute a
default under, the terms, conditions or provisions of that certain Letter of
Engagement, dated January 12, 1999, by and between Xxxxxx Xxxxxx Securities,
Inc. and the Company, or of any other contract to which the Company or any of
its affiliates is a party, including, without limitation, any underwriting
contracts, exclusivity contracts, investor rights agreements or rights of first
refusal.
(d) The Placement shall begin (the "Placement Opening Date") July 23,
1999, assuming delivery of the final Offering Memorandum to APS Financial and
the scheduling and mailing of notice, in compliance with all applicable legal
requirements, of the special meeting of shareholders of the Company to approve
all necessary amendments to the Company's Articles of Incorporation to authorize
the Placement and approve the terms of the Securities by the close of business
on July 23, 1999, If such conditions have not been satisfied by the close of
business July 23, 1999, then the Placement Opening Date shall be the first
business day on which both such conditions have been satisfied. Unless otherwise
extended by mutual agreement, APS Financial shall be entitled to terminate the
Placement in the event all necessary shareholder approvals have not been
obtained, and the necessary amendments to the Company's Articles of
Incorporation have not been filed by the close of business on August 10, 1999.
The Placement shall remain open for a period (the "Placement Period") of: (x)
sixty (60) days, and (y) thereafter; provided that the Company may close the
Placement Period at any time after the initial 60-day period upon ten (10) days
written notice to APS Financial. All terms, conditions and provisions of this
Letter Agreement will survive the close of the Placement Period. Notwithstanding
the foregoing, the Company may terminate (the "Termination Option") the
Placement if prior to the close of business August 13, 1999, or 15 business days
after the Placement Opening Date (if such date is not July 23, 1999) APS
Financial and/or the Company have not received subscriptions for Securities
totaling at least One Million Dollars ($1,000,000), and the associated cash
funding within ten calendar thereafter, Upon exercise of the Termination Option,
or termination of the Placement by APS Financial as provided above, APS
Financial will return all subscriptions received. The indemnification and
confidentiality obligations of the Company, provided herein, shall survive any
exercise of the Termination Option.
(e) In connection with its engagement hereunder, APS Financial
shall:
i. review the Offering Materials;
ii. assist the Company in formulating a marketing
strategy for the Securities and in developing
procedures and a timetable therefor,
iii. identify and contact prospective purchasers of the
Securities;
iv. advise the Company as to the timing, structure and
pricing of the Placement; and
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Probex Corp.
July 21, 1999
Page 3
V. provide such other investment banking services as are
customary for similar transactions which have been
mutually agreed upon by the Company and APS
Financial.
(f) The Company, and its affiliates, have not taken, and will not
take, any action, directly or indirectly, that may cause the Placement to fail
to be entitled to exemption from registration under federal or applicable state
securities laws or "blue sky" laws. APS Financial, and its affiliates, have not
taken, and will not take, any action, directly or indirectly, that may cause the
Placement to fail to be entitled to exemption from registration under federal or
applicable state securities laws or "blue sky" laws: provided the provisions of
this sentence shall not apply to any exemption from registration that is not
available due to APS Financial fulfilling its obligations pursuant to this
Letter Agreement.
(g) APS Financial may, at its own expense, place announcements or
advertisements in financial newspapers and journals describing its services
hereunder.
(h) The Company agrees that if the Termination Option is not
exercised, then if at any time prior to the second anniversary of the close of
the Placement Period, it shall sell any Securities or any other securities to
any person or entity to whom Securities were placed by APS Financial during the
Placement Period, the Company shall pay to APS Financial the Cash Placement Fee
pursuant to Section 3(a) of this Letter Agreement.
(i) The Company agrees that APS Financial, and its affiliates, may
at any time, hold long or short positions, may trade or otherwise effect
transactions for their own account or the accounts of customers, in securities
of the Company or other affiliates of the Company, and such transactions will
not constitute a conflict of interest hereunder; provided APS Financial agrees
not to effect or allow its affiliates to effect, any such transactions during
the Placement Period if such would violate applicable laws.
2. Fees, Expenses, and Advisory Board Position. As compensation for APS
Financial's services hereunder, the Company hereby agrees to pay and deliver,
promptly upon receipt of any proceeds from sales of the Securities, to APS
Financial, the fees and warrants as follows:
(a) Fees
(i) A Cash Placement Fee equal to Six Percent (6%) of the
total amount of the subscriptions for Securities;
(ii) A Due Diligence Fee equal to Two Percent (2%) of the
total amount of the subscriptions for Securities; and
(iii) An Unaccountable Expense Fee equal to Three Percent
(3%) of the total amount of the subscriptions for
Securities without in any way
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Probex Corp.
July 21, 1999
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limiting the indemnity obligations of the Company, it
is agreed and understood that in consideration for
the Unaccountable Expense Fee described above, APS
Financial will bear all of its own expenses incurred
in connection with performing its services under this
Letter Agreement,
(b) Warrants
Warrants entitling APS Financial, its employees, affiliates, agents, or
representatives, and their respective assigns or successors, to exercise an
option to purchase the APS Financial Shares (as defined herein), in whole or in
part, at any time, and from time to time, on or prior to the fifth anniversary
of the close of the Placement Period, at One Dollar and Eighty Seven and
One-Half Cents per share ($1.875/share). The APS Financial Shares means that
number of shares of the Company's no par value common stock (the "Common Stock")
equal to the product of: (i) the aggregate number of shares of the Securities
subscribed, multiplied by (ii) eighty percent (80%). Provided that the APS
Financial Shares shall be subject to adjustment for stock dividends or stock
splits in the same proportion as the increase of outstanding shares is to the
total authorized stock. All Common Stock acquirable upon exercise of the
warrants shall be subject to the same type and priority of registration rights
as provided to purchasers of the Securities pursuant to Section 1(a).
(c) Advisory Board Position
Until the third anniversary of the close of the Placement Period, and
provided the Company receives at least $2.5 million in gross proceeds from the
sale of the Securities, the Company shall designate a representative selected by
APS Financial to be an advisory director on the Company's Board of Directors,
and such advisory director shall in all respects be treated as a member of the
Company's Board of Directors, with the exception of voting rights, and shall be
entitled to the same notice, participation, information, and other rights as
afforded, from time to time, to the Company's voting board members: provided,
however that such advisory director shall be entitled to reimbursement of all
reasonable travel and lodging expenses incurred in attending meetings, and shall
be entitled to one-half of the compensation paid to regular board members
(whether in cash, stock or otherwise) in their capacity as board members. During
the three year period APS Financial shall be entitled to change the person
designated to be the advisory director upon written notice to the Company and
shall be entitled to have substitute representatives attend or otherwise
participate in meetings whenever the current designated advisory director is
unable to do so: provided that if the advisory director or substitute
representative is other than Xxxxxxx X. Xxxxxxx or Xxxxxx X. Xxxxxxx the Company
shall be entitled to approve such person, which approval shall not be
unreasonably withheld.
Notwithstanding the foregoing, not less than one year from the
anniversary date of the close of the Placement Period, the Company shall have
the option to terminate the Advisory Board position held by APS Financial if the
Preferred Shares have been forced to convert into common shares under the
terms of the Offering.
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Probex Corp.
July 21, 1999
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3. Indemnification. The Company agrees to indemnify APS Financial and
related persons and affiliates in accordance with the indemnification letter
attached hereto as Schedule A, the provisions of which are incorporated herein
in their entirety.
4. Disclosure.
(a) The Company recognizes and confirms that APS Financial, in acting
pursuant to this engagement, will be using information in reports and other
information provided by others, including, without limitation, information
provided by or on behalf of the Company, and that APS Financial does not assume
responsibility for and may rely, without independent verification, on the
accuracy and completeness of any such reports and information. The Company
hereby warrants that the Memorandum and other Offering Materials, and any other
information relating to the Company or the Placement, will not contain any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements contained therein, in the light of circumstances under
which they were made, not misleading. The Company agrees to provide APS
Financial with (i) prompt notice of any material development affecting the
Company or the occurrence of any event or other change known to the Company that
could result in the Memorandum or other Offering Materials containing an untrue
statement of a material fact or omitting to state any material fact necessary to
make the statements contained therein, in the light of the circumstances under
which they were made, not misleading, (ii) copies of any financial reports as
soon as reasonably practicable and (iii) such other information concerning the
business and financial condition of the Company as APS Financial may from time
to time reasonably request. APS Financial will have the right to approve all
Offering Materials and other written communications furnished by or on behalf of
the Company in connection with the Placement and the Company will cause to be
furnished to APS Financial and the purchasers of the Securities, on the closing
date of the Placement, copies of such opinions of counsel and such other
documents, letters, certificates and opinions AS APS Financial or the purchasers
may reasonably request in form and substance reasonably satisfactory to APS
Financial and its counsel.
(b) The Company agrees that any information or advice rendered by
APS Financial or its representatives in connection with this engagement is for
the confidential use of the Company only and, except as otherwise required by
law, the Company will not and will not permit any third party to disclose or
otherwise refer to such advice or information in any manner without APS
Financial's prior written consent.
5. Binding Arbitration. In the event of any dispute relating to this
Letter Agreement, the same shall be referred to three arbitrators for binding
arbitration. The three arbitrators shall be selected, one each, by (i) the
Company, (ii) APS Financial, and (iii) mutual agreement of the two arbitrators
selected by the Company and APS Financial. Each arbitrator shall be a
knowledgeable, independent businessperson or professional. If either the Company
or APS Financial refuse or neglect to appoint an arbitrator within 30 days after
receipt of the written request for arbitration, the initiating party may appoint
a second arbitrator. If the two arbitrators
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Probex Corp.
July 21, 1999
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fail to agree on the selection of a third arbitrator within 30 days of their
appointment, each of them shall name three individuals, of whom the other shall
decline two, and the decision shall be made by drawing lots.
The Company shall bear and APS Financial shall bear their own expense
in an arbitration including their arbitrator fees and attorneys' fees. The
Company and APS Financial shall each bear half of the expense of the third
arbitrator. Any remaining costs of the arbitration proceedings shall be
apportioned by the three arbitrators.
The arbitration proceedings shall be conducted in accordance with the
commercial arbitration rules of the American Arbitration Association, except
that the Company and APS Financial shall be entitled to take discovery as
provided under Federal Rules of Civil Procedure Nos. 28 through 36 during a
period of ninety (90) days after the final arbitrator is appointed and the
arbitrators shall have the power to issue subpoenas, compel discovery, award
sanctions and grant injunctive relief. The arbitrators shall be entitled to
retain an independent attorney to advise them as to legal matters. The
arbitration hearings shall commence no sooner than one hundred twenty (120) days
after the date the final arbitrator is appointed and not later than one hundred
eighty (180) days after such date. The arbitration hearing shall be conducted
during normal working hours on business days without interruption or adjournment
of more than two days at any one time or six (6) days in the aggregate. The
arbitrators shall decide by a majority vote of the arbitrators. The arbitrators
shall deliver their decision to the Company and APS Financial in writing within
20 days after the conclusion of the arbitration hearing, which written decision
shall include detailed findings of fact and conclusions of law. There shall be
no appeal from their written decision, except as permitted by applicable law.
Any arbitration instituted pursuant to this Section shall be held in
Austin, Texas or such other city that is mutually agreeable to the Company and
APS Financial, with the precise location within such city being as agreed upon
by the Company and APS Financial or, absent such agreement, at a location within
such city designated by the American Arbitration Association's resident manager
in Austin, Texas.
Notwithstanding any other provision of this Section 5, nothing
contained in this Letter Agreement shall require arbitration of any issue for
which injunctive relief is properly sought by a party hereto; provided the
awarding of monetary damages may only be made through arbitration. The
arbitrators, if they find that any party has acted in a fraudulent manner with
respect to any representation contained in, or any transaction contemplated by,
this Letter Agreement, may award punitive damages to the victim of such
fraudulent conduct.
6. Miscellaneous. This agreement (a) shall be governed by and construed in
accordance with the laws of the State of Texas, regardless of the laws that
might otherwise govern under applicable principles of conflicts of law thereof,
(b) incorporates the entire understanding of the parties with respect to the
subject matter hereof and supersedes all previous agreements should
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Probex Corp.
July 21, 1999
Page 7
they exist with respect thereto, (c) may not be amended or modified except in a
writing executed by the Company and APS Financial and (d) shall be binding upon
and inure to the benefit of the Company, APS Financial, the other Indemnified
Parties and their respective successors and assigns, The Company and APS
Financial agree to waive trial by jury in any action, proceeding or counterclaim
brought by or on behalf of either party with respect to any matter whatsoever
relating to or arising out of any actual or proposed Placement or the engagement
of or performance by APS Financial hereunder. The Company acknowledges that APS
Financial, in connection with its engagement hereunder, is acting as an
independent contractor with duties owing solely to the Company and that nothing
in this agreement is intended to confer upon any other person any rights or
remedies hereunder or by reason hereof.
This agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which shall constitute one
and the same agreement. Please confirm that the foregoing is in accordance with
your understanding of our agreement by signing and returning to us a copy of
this letter.
Very truly yours,
APS FINANCIAL:
APS Financial Corporation
By: /s/ Xxxxxx X. Xxxxxxx
_________________________________
Name: Xxxxxx X. Xxxxxxx
_______________________________
Title: President
Accepted and agreed to as of the date set forth above.
COMPANY:
PROBEX CORP.
By: /s/ Xxxxxx X. Xxxxxx
__________________________
Name: Xxxxxx X. Xxxxxx
________________________
Title: CEO
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Probex Corp.
July 21, 1999
Page 8
SCHEDULE A
The Company agrees to indemnify and hold harmless APS Financial, its
parent companies, subsidiaries, affiliates and their respective officers,
directors, employees, agents, attorneys and controlling persons (each an
"Indemnified Person") from and against any and all losses, claims, damages,
liabilities and expenses, joint or several, to which any such Indemnified Person
may become subject arising out of or in connection with the transactions
contemplated by the Letter Agreement to which this Schedule A is attached, or
any claim, litigation, investigation or proceedings relating to the foregoing
("Proceedings") regardless of whether any of such Indemnified Persons is a party
thereto, and to reimburse such Indemnified Persons for any legal or other
expenses as they are incurred in connection with investigating or defending any
of the foregoing, provided that the foregoing indemnification will not, as to
any Indemnified Person, apply to losses, claims, damages, liabilities or
expenses to the extent that they are finally judicially determined to have
resulted from the willful misconduct of such Indemnified Person. If for any
reason the foregoing indemnification is unavailable to any Indemnified Person or
insufficient to hold it harmless, then the Company 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 Company on the one hand
and such Indemnified Person on the other hand but also the relative fault of the
Company and such Indemnified Person, as well as any relevant equitable
considerations. It is hereby agreed that the relative benefits to the Company on
the one hand and all Indemnified Persons on the other hand shall be deemed to be
in the same proportion as (i) the total value received or proposed to be
received by the Company pursuant to any sale of the Securities (whether or not
consummated) bears to (ii) the fee paid or proposed to be paid to APS Financial
in connection with such sale. The indemnity, reimbursement and contribution
obligations of the Company under these paragraphs shall be in addition to any
liability which the Company may otherwise have to an Indemnified Person and
shall be binding upon and inure to the benefit of any successors, assigns, heirs
and personal representatives of the Company and any Indemnified Person.
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, notify the Company in writing
of the commencement thereof; provided that (i) the omission to so notify the
Company will not relieve it from any liability which it may have hereunder
except to the extent it has been materially prejudiced by such failure and (ii)
the omission to so notify the Company will not relieve it from any liability
which it may have to an Indemnified Person otherwise than on account of this
indemnity agreement. In case any such Proceedings are brought against any
Indemnified Person and it notifies the Company of the commencement thereof, the
Company will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the Indemnified Person, to assume the
defense thereof, with counsel reasonably satisfactory to such Indemnified
Person; provided that if the defendants in any such Proceedings include both the
Indemnified Person and the Company and the
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Probex Corp.
July 21, 1999
Page 9
Indemnified Person shall have concluded that there may be legal defenses
available to which are different from or additional to those available to the
Company, the 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. The Company will be
liable to such Indemnified Person for expenses incurred by the Indemnified
Person in connection with the defense thereof
APS Financial agrees to indemnify and hold harmless the Company, its
subsidiaries, affiliates and their respective officers, directors, employees,
agents, attorneys and controlling persons (each a "Company Indemnified Person")
from and against any and all losses, claims, damages, liabilities and expenses,
joint or several, to which any such Company Indemnified Person may become
subject arising out of or in connection with the transactions contemplated by
the Letter Agreement to which this Schedule A is attached, or any Proceedings
relating to the foregoing, regardless of whether any of such Company Indemnified
Persons is a party thereto, and to reimburse such Company Indemnified Persons
for any legal or other expenses as they are incurred in connection with
investigating or defending any of the foregoing, provided that the foregoing
indemnification will not apply unless, and only to the extent that, the amounts
for which the Company Indemnified Persons are seeking indemnification are
finally and judicially determined to have resulted from APS Financial providing
written information to the Company expressly for inclusion in the Offering
Materials, such written information was in fact included in the Offering
Materials, and such written information was false or materially inaccurate.
Except as otherwise provided for in this paragraph, the procedures for
indemnification by APS Financial, and the obligations of the Company Indemnified
Persons with respect thereto, shall be the same as provided above with respect
to the indemnity obligations of the Company.
Capitalized terms used but not defined in this Schedule A have the meanings
assigned to such terms in the Letter Agreement to which this Schedule A is
attached.
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[PROBEX LOGO] September 9, 1999
APS Financial Corporation
0000 Xxxxxxx xx Xxxxx Xxxxxxx
Xxxxx X-000
Xxxxxx, Xxxxx 00000
Re: Supplement to Engagement Letter
Gentlemen:
This letter is a supplement to and amends that certain Letter Agreement
(the "Engagement Letter") dated as July 21, 1999 between Probex Corp. (the
"Company") and APS Financial Corporation ("APS Financial"), pursuant to which
APS Financial was engaged to act as the exclusive placement agent to the Company
in connection with a private placement (the "Placement") of the Company's 10%
Cumulative Convertible Preferred Stock (the "Securities"). Capitalized terms
used without definition in this letter shall have the meanings set forth for
such terms in the Engagement Letter.
Pursuant to the Engagement Letter, the Company and APS Financial have
effected the Placement pursuant to a Confidential Offering Memorandum dated July
23, 1999 (the "Memorandum"). The parties hereby acknowledge that the Closing
Condition, as defined in the Memorandum, has been satisfied and the Minimum
Subscription Amount, as defined in the Memorandum, has been received by APS
Financial; provided, however, the parties have agreed to certain additional
provisions with respect to the release of the Minimum Subscription Amount, and
subsequent funds from the Placement, to the Company. These provisions are as
follows:
1. Effective upon the execution of this letter by all parties,
APS Financial shall release the Minimum Subscription Amount to the Company. The
Company immediately shall remit into an account established and controlled by
APS Financial (the "Refundable Deposit Account"), an amount equal to 10% of the
Minimum Subscription Amount. All funds in the Refundable Deposit Account shall
be refundable to the Company, subject to the terms and conditions provided
herein. The balance of the Minimum Subscription Amount shall be available to the
Company for the purposes set forth in the Memorandum. From and after the date
hereof until the termination of the Placement, upon receipt by the Company of
any
[PROBEX LETTERHEAD]
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APS Financial Corporation
September 9, 1999
Page 2
additional proceeds from the Placement, the Company shall remit to the
Refundable Deposit Account an amount equal to 10% of such proceeds.
2. APS Financial shall not release any of the funds from the
Refundable Deposit Account until the following events shall have occurred: (i)
the Company's Board of Directors shall have approved and recommended to the
shareholders of the Company an amendment and restatement of the Company's
Articles of Incorporation, as described below, and (ii) such amendment and
restatement shall have been approved and adopted by the shareholders of the
Company by the affirmative vote of the holders of at least a majority of the
outstanding shares of common stock of the Company. Such amended and restated
articles of incorporations shall clearly set forth the continuing right of the
Company to issue the Securities and to pay dividends thereon, and shall
otherwise be substantially in the form of Exhibit A attached hereto (with such
additional changes as shall be approved by the Board of Directors in the
exercise of its business judgment, provided that if any such additional changes
shall adversely affect the rights or preferences of the holders of the
Securities, such changes shall be subject to the affirmative vote of the holders
of a majority of the outstanding Securities, voting separately as a class). In
lieu of the foregoing, the Board of Directors may elect to reincorporate the
Company as a Texas, Nevada or Delaware corporation (or a corporation or other
entity domiciled in such other jurisdiction as the Board of Directors may
determine in the exercise of its business judgment). In such event, the articles
of incorporation or similar charter document of the surviving corporation shall
contain terms and provisions with respect to the Securities no less favorable to
the holders of the Securities than the terms and conditions set forth in the
attached Exhibit A. The conditions set forth in this paragraph 2 are referred to
herein as the "Refund Conditions."
3. Upon the satisfaction of the Refund Conditions on or before
December 31, 1999, APS Financial shall pay to the Company, on or before January
5, 2000, all principle, interest and other earnings in the Refundable Deposit
Account, whereupon this letter agreement shall terminate and neither party shall
have any other rights or obligations hereunder. In the event the Refund
Conditions have not been satisfied by the close of business on December 31,
1999, then APS Financial shall be entitled to all principle, interest and other
earnings in the Refundable Deposit Account, as an additional Cash Placement Fee.
Upon payment of such amount to APS Financial, this letter agreement shall
terminate and neither party shall have any other rights or obligations
hereunder.
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APS Financial Corporation
September 9, 1999
Page 3
This letter agreement is a supplement to, and shall be read together
with, the Engagement Letter, and to the extent not inconsistent with the terms
hereof, the terms of the Engagement Letter are hereby incorporated by reference
into this letter. Please confirm that the foregoing is in accordance with your
understanding of our agreement by signing and returning to us a copy of this
letter.
Very truly yours,
Probex Corp.
By: /s/ Xxxx X. Xxxxxx
________________________________
Name: Xxxx X. Xxxxxx
______________________________
Title: President
Accepted and agreed to as of the date set forth above:
APS Financial Corporation
By: /s/ Xxxxxx X. Xxxxxxx
_______________________________
Name: Xxxxxx X. Xxxxxxx
_____________________________
Title: President
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APS FINANCIAL CORPORATION
September 22, 1999
CONFIDENTIAL
Probex Corp.
0000 XxXxx, Xxxxx 000
Xxxxxxxxxx, Xxxxx 00000
Re: Letter Agreement, dated July 21, 1999
Gentlemen:
This letter is to acknowledge that Probex Corp. and APS Financial
Corporation have mutually agreed to extend the Placement Period for the
Securities until Friday, October 22, 1999.
Very truly yours,
APS FINANCIAL:
APS Financial Corporation
BY: /s/ Xxxxxx X. Xxxxxxx
_______________________________
Name: Xxxxxx X. Xxxxxxx
_____________________________
Title: President
Accepted and agreed to as of the date set forth above.
COMPANY:
PROBEX CORP.
By: /s/ Xxxx X. Xxxxxx
______________________________
Name: Xxxx X. Xxxxxx
____________________________
Title: President
[SIPC LOGO]
[APS FINANCIAL CORPORATION LETTERHEAD]
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APS FINANCIAL CORPORATION
October 22, 1999
CONFIDENTIAL
Probex Corp.
0000 XxXxx, Xxxxx 000
Xxxxxxxxxx, Xxxxx 00000
Re: Letter Agreement, dated July 21, 1999
Gentlemen:
This letter is to acknowledge that Probex Corp. and APS Financial
Corporation have mutually agreed to extend the Placement Period for the
Securities until Friday, November 4, 1999.
Very truly yours,
APS FINANCIAL:
APS Financial Corporation
By: /s/ Xxxxxx X. Xxxxxxx
_______________________________
Name: Xxxxxx X. Xxxxxxx
_____________________________
Title: President
Accepted and agreed to as of the date set forth above.
COMPANY:
PROBEX CORP.
By: /s/ Xxxxx Xxxx
_____________________________
Name: Xxxxx Xxxx
___________________________
Title: VP and CFO
[SIPC LOGO]
[APS FINANCIAL CORPORATION LETTERHEAD]
15
APS FINANCIAL CORPORATION
November 4, 1999
CONFIDENTIAL
Probex Corp.
0000 XxXxx, Xxxxx 000
Xxxxxxxxxx, Xxxxx 00000
Re: Letter Agreement, dated July 21, 1999
Gentlemen:
This letter is to acknowledge that Probex Corp. and APS Financial
Corporation have mutually agreed to extend the Placement Period for the
Securities until Wednesday, December 15, 1999.
Very truly yours,
APS FINANCIAL:
APS Financial Corporation
By: /s/ Xxxxxx X. Xxxxxxx
_______________________________
Name: Xxxxxx X. Xxxxxxx
_____________________________
Title: President
Accepted and agreed to as of the date set forth above.
COMPANY:
PROBEX CORP.
By: /s/ Xxxxx Xxxx
______________________________
Name: Xxxxx Xxxx
____________________________
Title: VP and CFO
[APS FINANCIAL CORPORATION LETTERHEAD]
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