THE XXXXXXXX COMPANIES, INC.
DEALER MANAGER AGREEMENT
September 17, 2004
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
CITIGROUP GLOBAL MARKETS INC.
BANC OF AMERICA SECURITIES LLC
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Four World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. General. The Xxxxxxxx Companies, Inc., a Delaware corporation
(the "COMPANY"), plans to make a tender offer to exchange (the "OFFER") up to an
aggregate of 43,900,000 of the Company's outstanding FELINE PACS in the form of
Income PACS (the "SECURITIES") for a combination of cash and shares of the
Company's common stock ("COMPANY SHARES") on the terms and subject to the
conditions set forth in the Preliminary Prospectus dated the date hereof and
included in the Registration Statement (as defined below) (and as amended or
supplemented from time to time prior to effectiveness of the Registration
Statement, the "PRELIMINARY PROSPECTUS"), and the related Letter of Transmittal
(the "LETTER OF TRANSMITTAL") dated the date hereof and filed as Exhibit 99.1 to
the Registration Statement.
The following materials to be used by the Company in connection with
the Offer, as any of them may be amended, modified or supplemented from time to
time, are collectively referred to herein as the "OFFER MATERIAL":
(a) The Company's Registration Statement on Form S-4 filed with
the Securities and Exchange Commission (the "COMMISSION") on September 17, 2004
in accordance with the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "1933 ACT"),
relating to the Offer and the issuance of the Company Shares in connection
therewith. As used in this agreement (the "DEALER MANAGER AGREEMENT" or this
"AGREEMENT"), the term "REGISTRATION STATEMENT" means such registration
statement, including all exhibits, financial statements, schedules or other
information included or incorporated by reference therein, when it becomes
effective under the 1933 Act, and as amended or supplemented from time to time.
(b) The Company's Prospectus relating to the Offer and the Company
Shares to be issued in connection therewith. As used in this Agreement, the term
"PROSPECTUS" means (i) any prospectus, as amended or supplemented on or prior to
the Acceptance Date (as defined below) (including, but not limited to, the
Preliminary Prospectus) that the Company uses, prepares, files, distributes or
approves in writing which is used to solicit tenders of Securities in the Offer,
or (ii) after the effectiveness of the Registration Statement, the prospectus,
if any, filed with the Commission pursuant to Rule 424(b) under the 1933 Act, in
the form it was first filed, provided that such prospectus was used to solicit
tenders of Securities in the Offer on or prior to the Acceptance Date. All
references in this Agreement to financial statements and schedules and other
information which is "contained", "included" or "stated" in the Registration
Statement, any preliminary prospectus or the Prospectus (or other references of
like import) shall be deemed to mean and include all such financial statements
and schedules and other information which is incorporated, or deemed to be
incorporated, by reference in the Registration Statement, any preliminary
prospectus or the Prospectus, as the case may be. Any reference herein to the
Registration Statement or the Prospectus shall be deemed to refer to and include
any documents, financial statements and schedules incorporated, or deemed to be
incorporated, by reference therein pursuant to Form S-4 under the 1933 Act, as
of the effective date of the Registration Statement or the date of the
Prospectus, as the case may be, and any reference to any amendment or supplement
to the Registration Statement or the Prospectus shall be deemed to refer to and
include any documents, financial statements and schedules filed after such date
under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "1934 ACT") and so
incorporated, or deemed to be incorporated, by reference (such incorporated
documents, financial statements and schedules being herein called the
"INCORPORATED DOCUMENTS"). For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("XXXXX").
(c) The Tender Offer Statement on Schedule TO (the "SCHEDULE TO")
filed or to be filed by the Company with the Commission pursuant to Rule 13e-4
under the 1934 Act and all amendments to the Schedule TO (each an "AMENDMENT"
and, collectively, the "AMENDMENTS") and the Letter of Transmittal.
(d) The Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9 relating to the Offer.
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(e) The form of letter to Registered Holders and The Depository
Trust Company Participants relating to the Offer, and the form of letter to
Clients of Registered Holders and The Depository Trust Company Participants
relating to the Offer.
(f) The form of letter to Holders of The Xxxxxxxx Companies,
Inc.'s FELINE PACS relating to the Offer.
(g) Any other documents or materials whatsoever (including
newspaper announcements and press releases) relating to the Offer that are
distributed or made available to the public or the holders of the Securities by
or at the direction of the Company in connection with the Offer.
2. Engagement as Dealer Managers. (a) The Company hereby retains
each of Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Citigroup Global Markets Inc. and Banc of America Securities LLC to act as the
exclusive dealer managers with respect to the Offer (each a "DEALER MANAGER" and
together, the "DEALER MANAGERS"). On the basis of the representations and
warranties and agreements of the Company herein contained and subject to and in
accordance with the terms and conditions hereof and of the Offer Material, you
hereby agree to act as Dealer Managers in connection with the Offer and in
connection therewith, you shall act in accordance with your customary practices
and shall perform those services in connection with the Offer that are
customarily performed by investment banking firms in connection with acting as a
dealer manager of exchange offers of a like nature, including, but not limited
to, soliciting tenders pursuant to the Offer and communicating generally
regarding the Offer with brokers, dealers, commercial banks and trust companies
and other persons, including the holders of the Securities. The Dealer Managers
shall have no obligation to cause copies of the Offer Material to be transmitted
generally to the holders of the Securities.
(b) The Company acknowledges and agrees that each of the Dealer
Managers have been retained hereunder to act solely as a Dealer Manager. In such
capacity, each of the Dealer Managers shall act hereunder as an independent
contractor and shall not be deemed the agent or fiduciary of the Company or any
of its affiliates, equity holders or creditors or of any other person, and any
of the duties of the Dealer Managers arising out of the Dealer Managers'
engagement pursuant to this Agreement shall be owed solely to the Company. None
of the Dealer Managers shall be liable to the Company, its affiliates, equity
holders or creditors or to any other person for any act or omission on the part
of, and shall not be deemed to be the agent or fiduciary of, any broker or
dealer, commercial bank or trust company and no such broker or dealer,
commercial bank or trust company shall be deemed to be acting as the agent or
fiduciary of any of the Dealer Managers (including, without limitation, for
purposes of Section 10 of this
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Agreement). Nothing contained in this Agreement shall constitute any of the
Dealer Managers a partner of or joint venturer with the Company.
3. Solicitation Material, Withdrawal. The Company agrees to
furnish you with as many copies as you may reasonably request of any Offer
Material, and hereby authorizes you to use the Offer Material in connection with
the Offer. The Company agrees that, within a reasonable time prior to using any
Offer Material, it will submit copies of such material to you and your counsel
and will not use or publish any such material to which you reasonably object.
The Company agrees that the Offer Material have been or will be prepared and
approved by, and are the sole responsibility of, the Company. The Company shall
inform you promptly after it receives notice or becomes aware of the happening
of any event, or the discovery of any fact, that would require the making of any
change in any Offer Material then being used or that would affect the accuracy
or completeness of any representation or warranty contained in this Agreement if
such representation or warranty were being made immediately after the happening
of such event or the discovery of such fact.
In the event that (i) the Company uses or permits the use of any Offer
Material (a) that has not been submitted to you and your counsel for comment or
(b) that has been so submitted and with respect to which you or your counsel
have made comments, but which comments have not resulted in a response
reasonably satisfactory to you to reflect such comments, (ii) the Company shall
have breached any of its representations, warranties, agreements, obligations or
covenants contained herein, (iii) there shall have occurred any material adverse
change, or any development or event involving a material adverse change, in the
financial condition, results of operations, business or prospects of the Company
and its subsidiaries, taken as a whole (a "MATERIAL ADVERSE CHANGE"), that, in
your judgment, makes it impracticable or inadvisable to carry out the Offer, the
exchange of Securities pursuant thereto or the performance of this Agreement,
(iv) the Offer is terminated or withdrawn for any reason other than as a result
of the gross negligence, bad faith or willful misconduct of any Dealer Manager
or (v) any stop order, restraining order, injunction or denial of an application
for approval has been issued in connection with the Offer and not thereafter
stayed or vacated or any proceeding, litigation or investigation in connection
with the Offer has been initiated, that, in either case in your judgment, makes
it impracticable or inadvisable to carry out the Offer, the exchange of
Securities pursuant thereto or the performance of this Agreement, then in any
such case you shall be entitled to withdraw as a Dealer Manager, by providing
written notice of such withdrawal to the Company, without any liability or
penalty to you or any other Indemnified Party (as defined in Section 10) and
without loss of any right to the payment of all expenses payable in accordance
with Section 5 hereunder which have been incurred by you to the date of such
withdrawal. If you withdraw as a Dealer Manager in accordance with the foregoing
provision, the reimbursement for your expenses through the date of such
withdrawal shall be paid to you promptly after
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such date. Notwithstanding anything contained in this Agreement to the contrary,
the Company may, in its discretion, carry out the Offer after your withdrawal as
Dealer Manager, provided that the Company (y) amends or supplements the Offer
Material to disclose that you have withdrawn as Dealer Manager and (z) utilizes
a means reasonably calculated to reach holders of the Securities to inform them
of such withdrawal.
4. Compensation. The Company agrees that it will pay all of the
compensation due to the Dealer Managers for their services as Dealer Managers
hereunder and agrees that such compensation will be as set forth in Schedule I
hereto and that such compensation will be paid in cash immediately upon the
completion of the Offer.
5. Expenses. The Company agrees that it will pay all of the
following expenses related to the Offer: (i) all fees and expenses relating to
the preparation, printing, mailing and publishing of the Offer Material,
including the cost of preparation and filing of the Registration Statement and
any amendment thereto and Schedule TO and any Amendments thereto, and the cost
of furnishing copies thereof to the Dealer Managers, (ii) all fees and expenses
of the Company's counsel and accountants and of the Exchange Agent and
Information Agent (each as defined in Section 6), (iii) all advertising charges,
(iv) all fees and expenses of any depositary, transfer agent or other person
rendering services in connection with the Offer, (v) mailing and handling
expenses incurred by brokers and dealers (including you), commercial banks,
trust companies and other nominees in forwarding the Offer Material to their
customers, (vi) the cost of the preparation, issuance and delivery of the
Company Shares, including any and all transfer and other taxes payable thereon,
except as otherwise stated in the Letter of Transmittal, (vii) all expenses in
connection with the qualification of the Company Shares for offer and delivery,
(viii) all costs and expenses incident to the additional listing of the Company
Shares on the New York Stock Exchange, (ix) all fees and expenses of Xxxxx Xxxx
& Xxxxxxxx as counsel to the Dealer Managers and (x) all other costs and
expenses incident to the performance of the obligations of the Company hereunder
for which provision is not otherwise made in this Section 5. All payments to be
made by the Company pursuant to this Section 5 shall be made promptly after the
expiration or termination of the Offer or withdrawal by you from acting as
Dealer Managers in accordance with Section 3 or, if later, promptly after the
related fees or expenses accrue and are invoiced. The Company shall perform its
obligations set forth in this Section 5 whether or not the Offer is commenced or
the Company acquires any Securities pursuant to the Offer or otherwise.
6. Exchange Agent and Information Agent. (a) The Company will
arrange for JPMorgan Chase Bank, a New York banking corporation, to serve as
exchange agent (the "EXCHANGE AGENT") in connection with the Offer and, as such,
to advise you at least daily as to such matters relating to the Offer as you
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may request. The Company shall provide you or cause The Depository Trust Company
("DTC") to provide you with copies of the records or other lists showing the
names and addresses of, and number of Securities held by, the holders of
Securities as of a recent date and shall, from and after such date, use its
commercially reasonable efforts to cause you to be advised from day to day
during the pendency of the Offer of all transfers of Securities, such
notification consisting of the name and address of the transferor and transferee
of any Securities and the date of such transfer. The Company will arrange for
X.X. Xxxx & Co., Inc., to serve as information agent ("INFORMATION AGENT") in
connection with the Offer and, as such, to advise you as to such matters
relating to the Offer as you may reasonably request and to furnish you with any
written reports concerning any such information as you may reasonably request.
(b) The Company authorizes you to communicate with the Exchange
Agent, the Information Agent and with DTC in its capacity as depositary, with
respect to matters relating to the Offer.
7. Representations, Warranties and Certain Agreements of the
Company. The Company represents and warrants to each of the Dealer Managers, and
agrees with each of the Dealer Managers, as of the date hereof, as of the date
of commencement of the Offer pursuant to Section 13(e) of the 1934 Act (if
different than the date hereof) (the "COMMENCEMENT DATE") and as of the date on
which the Securities are accepted by the Company pursuant to the Offer (the
"ACCEPTANCE DATE") (unless another date is specifically referenced in which case
the representation and warranty shall speak as of such date):
(a) Compliance with Registration Requirements. The Company meets
the requirements for use of Form S-4 under the 1933 Act and, on or prior to the
Commencement Date, has filed with the Commission the Registration Statement and
paid the applicable filing fees. As of the Acceptance Date, the Registration
Statement and any post-effective amendment thereto have become effective under
the 1933 Act and no stop order suspending the effectiveness of the Registration
Statement and any post-effective amendment thereto has been issued under the
1933 Act and no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with.
At the respective times the Registration Statement and any
post-effective amendments thereto become effective and at the Acceptance Date,
the Registration Statement and any amendments thereto will comply in all
material respects with the requirements of the 1933 Act and will not 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 not misleading.
Neither the Prospectus nor any amendments and supplements thereto included or
will include
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an untrue statement of a material fact or omitted or will omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except that the
foregoing does not apply to statements in or omissions from any of such
documents based upon written information furnished to the Company by you or on
your behalf specifically for use therein.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment thereto,
complied when so filed in all material respects with the 1933 Act and each
preliminary prospectus and the Prospectus prepared for use in connection with
the Offer will, at the time of such delivery, be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(b) Offer Material. A complete and correct copy of the Offer
Material has been furnished to you and your counsel or will be furnished no
later than the Commencement Date. The Offer Material, as then amended or
supplemented (other than the Prospectus and the Registration Statement, and any
amendments and supplements thereto, which are covered in subsection (a) above),
complied and will comply in all material respects with the requirements of the
1933 Act and the 1934 Act, as applicable, and did not and will not 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 not misleading.
Neither the Offer Material nor any amendments or supplements thereto (other than
the Prospectus and the Registration Statement, and any amendments and
supplements thereto, which are covered in subsection (a) above) included or will
include an untrue statement of a material fact or omitted or will omit to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(c) Incorporated Documents. The Company has filed all documents
with the Commission that it is required to file under the 1933 Act and the 1934
Act, as applicable; the Incorporated Documents, at the time they were or
hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1934 Act, and, when read together
with the other information in the Prospectus, at the date of the Prospectus and
at the Acceptance Date, did not and will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(d) Financial Statements. The financial statements of the Company,
together with the related schedules and notes to such financial statements,
included in the Registration Statement and the Prospectus present fairly in all
material respects the financial position of the Company and its consolidated
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subsidiaries as of the dates shown and their results of operations and cash
flows for the periods shown, and except as otherwise disclosed in the
Prospectus, such financial statements comply as to form with the applicable
accounting requirements of the 1933 Act and have been prepared in conformity
with generally accepted accounting principles ("GAAP") in the United States
applied on a consistent basis throughout the periods involved (except as stated
therein); and any schedules included in the Registration Statement present
fairly in all material respects in accordance with GAAP the information required
to be stated therein. The selected historical financial data set forth under the
caption "Selected Historical Consolidated Financial Data" in the Prospectus
present fairly the information shown therein and have been compiled as described
in the Prospectus under the caption "Selected Historical Consolidated Financial
Data."
(e) Independent Accountants. Ernst & Young LLP, who have reported
upon the audited financial statements and schedules included or incorporated by
reference in the Prospectus, are independent public auditors with respect to the
Company within the meaning of the rules and regulations promulgated under the
1933 Act.
(f) No Material Adverse Change in Business. Neither the Company
nor any of its Significant Subsidiaries has sustained, since the date of the
latest audited financial statements included or incorporated by reference in the
Prospectus, any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, which would be
reasonably likely to result in any Material Adverse Effect, or any development
involving a material adverse change in or affecting the financial condition,
results of operations, business or prospects of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated in
the Prospectus, and, since the respective dates as of which information is given
in the Prospectus or since the date of the Prospectus, there has not been (i)
any material change in the capital stock or long-term debt of the Company or any
of its subsidiaries, (ii) any material adverse change in or affecting the
financial condition, results of operations, business or prospects of the Company
and its subsidiaries, taken as a whole or (iii) any transaction entered into by
the Company or any of its Significant Subsidiaries, other than in the ordinary
course of business, that is material to the Company and its subsidiaries, taken
as a whole, otherwise than as disclosed, in each case, in the Prospectus.
(g) Good Standing of the Company. The Company has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of the State of Delaware, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus and is duly
qualified to do business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property requires
such
8
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the financial
condition, results of operations, business or prospects of the Company and its
subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT").
(h) Good Standing of Subsidiaries. Each significant subsidiary of
the Company (as defined in Rule 1-02 of Regulation S-X under the 1933 Act (each,
a "SIGNIFICANT SUBSIDIARY" and collectively, "SIGNIFICANT SUBSIDIARIES") has
been duly organized or validly formed, is validly existing and in good standing
under the laws of the jurisdiction of its formation or incorporation, has the
power (corporate or other) and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to do business and
is in good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a Material Adverse Effect; all of the issued and outstanding shares of capital
stock or other equity interests of each Significant Subsidiary have been duly
authorized and validly issued and, if applicable, are fully paid and
nonassessable and, except as disclosed in the Prospectus, are owned directly or
indirectly by the Company, free and clear of all liens encumbrances, equities
and claims.
(i) Capital Stock. The Company has an authorized capitalization as
set forth in the Prospectus and Offer Material; all of the issued shares of
capital stock of the Company have been duly authorized and validly issued, are
fully paid and nonassessable, and conform to the description thereof contained
in the Prospectus and Offer Material; and none of such shares of capital stock
was issued in violation of preemptive or other similar rights of any
securityholder of the Company.
(j) Authorization of this Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(k) Authorization of Company Shares. The Company has duly
authorized for issuance a number of Company Shares sufficient to consummate the
Offer pursuant to its terms and, when any Company Shares are issued and
delivered by the Company as provided in the Offer Material, such Company Shares
will be validly issued and fully paid and non-assessable; the Company Shares
conform in all material respects to the respective statements relating thereto
contained in the Prospectus and Offer Material and the issuance of the Company
Shares by the Company is not subject to any preemptive or other similar rights
of any security holder of the Company.
(l) Noncontravention. The Company has full power and authority to
make and consummate the Offer in accordance with its terms and to execute,
deliver and perform its obligations under this Agreement. The (i) execution,
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delivery and performance by the Company of this Agreement, (ii) making and
consummation of the Offer by the Company (including but not limited to the
issuance and delivery of Company Shares thereunder), (iii) obtaining and use by
the Company of funds required in connection with the Offer, (iv) use of the
Offer Material and the filing of the Registration Statement, the Prospectus and
the Schedule TO, and any amendments or supplements thereto and (v) consummation
by the Company of the transactions contemplated by this Agreement and in the
Offer Material, in each case, have been duly authorized by all necessary action
(corporate or other) on the part of the Company and do not and will not (x)
result in any violation of the charter or by-laws of the Company or (y) conflict
with, or result in a breach of any of the terms or provisions of, or constitute
a default or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its affiliates is a party or by which the Company or
any of its affiliates is bound (except for such conflicts, breaches or defaults,
in the case of this clause (x), that could not reasonably be expected to have a
Material Adverse Effect), nor does or will such action result in any violation
of any statute applicable to the Company or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Company or any
of its properties.
(m) Absence of Proceedings. Other than as set forth or
incorporated by reference in the Prospectus, there is no action, suit or
proceeding before or by any government, governmental instrumentality or court,
domestic or foreign, now pending or, to the knowledge of the Company, threatened
against or affecting the Company or any Significant Subsidiary or to which any
of their respective properties are subject that could reasonably be expected to
result in any Material Adverse Effect, or that could reasonably be expected to
adversely affect the consummation of the Offer or the other transactions
contemplated in this Agreement.
(n) Absence of Further Requirements. No consent, approval,
authorization, order, registration or qualification of or with any such court or
governmental agency or body having jurisdiction over the Company or any of its
properties is required for the execution, delivery and performance by the
Company of this Agreement, in connection with the consummation of the Offer or
the other transactions described in the Offer Material by the Company, except as
may be required by the securities or Blue Sky laws of the various states in
connection with the Offer.
(o) Possession of Licenses and Permits. The Company and its
Significant Subsidiaries each have all consents, authorizations, approvals,
orders, certificates and permits of and from, and has made all declarations and
filings with, all federal, state, local and other governmental authorities, and
all courts or other tribunals (collectively, the "LICENSES") necessary to own,
hold, or lease, as
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the case may be, and to operate its properties and to carry on its business as
presently conducted, except where the failure to possess such Licenses could not
reasonably be expected to have a Material Adverse Effect, and neither the
Company nor any of its Significant Subsidiaries has received any notice of
proceedings relating to revocation or modification of any such Licenses, except
to the extent that any such revocation or modification would not have a Material
Adverse Effect.
(p) Sufficient Funds. The funds to be made available by the
Company for consummation of the Offer as described in the Offer Material are
available or will be available to the Company by the Acceptance Date and the
Company will have sufficient authority under applicable law to use such funds as
described to enable the Company promptly to pay the cash consideration for the
Securities pursuant to the Offer as described in the Prospectus.
(q) Officers' Certificates. Any certificate signed by any officer
of the Company delivered to you or to your counsel and requested in writing with
respect to this Agreement shall be deemed a representation and warranty by the
Company to each Dealer Manager as to the matters covered thereby.
(r) Absence of Defaults and Conflicts. The Company is not (i) in
violation of its charter or by-laws, as applicable, (ii) in default, and no
event has occurred which, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term, obligation,
agreement, covenant or condition contained in any material contract, indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or instrument
to which it is a party or by which it is bound or which any of its properties or
assets may be subject or (iii) in violation of any law, ordinance, governmental
rule, regulation or court decree to which it or its property or assets may be
subject, except with respect to (ii) or (iii), for any such violations or
defaults that would not be reasonably likely, singly or in the aggregate, to
have a Material Adverse Effect.
(s) Compliance with Environmental Laws. (i) Each of the Company
and its Significant Subsidiaries (A) is in compliance with any and all
applicable foreign, federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"), (B) has
received all permits, licenses or other approvals required of it under
applicable Environmental Laws to conduct its business as presently conducted and
(C) is in compliance with all terms and conditions of any such permit, license
or approval, except, with respect to (A), (B) and (C), as may be disclosed in
the Prospectus and except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or approvals
would not be reasonably likely to, singly or in the aggregate, have a Material
Adverse Effect.
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(ii) There has been no storage, disposal,
generation, manufacture, refinement, transportation, handling
or treatment of toxic wastes, medical wastes, hazardous wastes
or hazardous substances by the Company or any of its
Significant Subsidiaries (or, to the knowledge of the Company,
any of their predecessors in interest) at, upon or from any of
the property now or previously owned or leased by the Company
or its Significant Subsidiaries in violation of any applicable
law, ordinance, rule, regulation, order, judgment, decree or
permit or which would require remedial action under any
applicable law, ordinance, rule, regulation, order, judgment,
decree or permit, except as may be disclosed in the Prospectus
and except for any violation or remedial action which would
not be reasonably likely to have, singularly or in the
aggregate, a Material Adverse Effect; there has been no
material spill, discharge, leak, emission, injection, escape,
dumping or release of any kind onto such property or into the
environment surrounding such property of any toxic wastes,
medical wastes, solid wastes, hazardous wastes or hazardous
substances due to or caused by the Company or any of its
Significant Subsidiaries or with respect to which the Company
or any of its Significant Subsidiaries have knowledge, except
for any such spill, discharge, leak, emission, injection,
escape, dumping or release which would not be reasonably
likely to have, singularly or in the aggregate, a Material
Adverse Effect; and the terms "hazardous wastes", "toxic
wastes", "hazardous substances" and "medical wastes" shall
have the meanings specified in any applicable local, state,
federal and foreign laws or regulations with respect to
environmental protection
(t) Internal Controls. The Company (i) makes and keeps books and
records which accurately reflect transactions and dispositions of the Company's
assets and (ii) maintains internal accounting controls which provide reasonable
assurance that (A) transactions are executed in accordance with management's
general or specific authorization, (B) transactions are recorded as necessary to
permit preparation of its financial statements and to maintain accountability
for its assets, (C) access to its assets is permitted only in accordance with
management's general or specific authorization and (D) the recorded
accountability for its assets is compared with existing assets at reasonable
intervals.
(u) Disclosure Controls and Procedures. (i) (A) The Company has
established and maintains disclosure controls and procedures (as such terms are
defined in Rule 13a-15(e) and 15d-15(e) under the 1934 Act); (B) such disclosure
controls and procedures are designed to ensure that information required to be
disclosed by the Company in the reports it files or submits under the 1934 Act
is accumulated and communicated to the Company's management, including its
12
principal executive officer and its principal financial officer, as appropriate,
to allow timely decisions regarding required disclosure; and (C) such disclosure
controls and procedures are effective in all material respects to perform the
functions for which they were established.
(ii) Since the date of the filing of the
Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 2004, the Company's auditors and the audit committee
of the board of directors of the Company (or persons
fulfilling the equivalent function) have not been advised of
(i)any significant deficiencies in the design or operation of
internal controls which could adversely affect the Company's
ability to record, process, summarize and report financial
data nor any material weaknesses in internal controls; and
(ii) any fraud, whether or not material, that involves
management or other employees who have a significant role in
the Company's internal controls.
(iii) Since the date of the filing of the
Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 2004, there have been no significant changes in
internal controls or in other factors that could significantly
affect internal controls, including any corrective actions
with regard to significant deficiencies and material
weaknesses.
(v) Investment Company Act. The Company is not and, after giving
effect to the issuance of the Company Shares in connection with the Offer, will
not be an "investment company" required to be registered under the Investment
Company Act of 1940, as amended.
(w) ERISA Compliance. The Company is in compliance in all material
respects with all presently applicable provisions of the Employee Retirement
Income Security Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no Reportable Event has occurred with
respect to any "pension plan" (as defined by ERISA) for which the Company would
have any material liability; the Company has not incurred and does not expect to
incur material liability under (i) Title IV of ERISA with respect to termination
of, or withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the "CODE"); and each "pension plan" for
which the Company would have any liability that is intended to be qualified
under Section 401(a) of the Code is so qualified in all material respects and
nothing has occurred, whether by action or by failure to act, which would cause
the loss of such qualification. "REPORTABLE EVENT" means any of the events set
forth in Section 4043(c) of ERISA, other than those events described in Section
4043(c)(3) and other than those events as to which the thirty day notice period
13
is waived under subsections .22, .24 (solely with respect to partial termination
of a Plan), .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC Xxx.xx. 4043).
(x) Insurance. The Company and its Significant Subsidiaries carry,
or are covered by, insurance in such amounts and covering such risks as is
reasonable in accordance with customary practices for companies engaged in
similar businesses in similar industries for the conduct of their respective
businesses and the value of their properties.
(y) Listing. The Company Shares have been approved for listing on
the New York Stock Exchange, subject to official notice of issuance.
8. Additional Agreements. (a) The Company shall notify you
immediately and, if requested, shall notify you in writing of (i) when the
Registration Statement has become effective and when any Prospectus is mailed
(or otherwise sent) for filing pursuant to Rule 424 under the 1933 Act, (ii) the
receipt of any comments from the Commission, (iii) any request by the Commission
for any amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information, (iv) the filing of any
post-effective amendment to the Registration Statement, (v) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto or of any order preventing or
suspending the use of the Preliminary Prospectus or any Offer Material, or of
the suspension of the qualification of the Securities for offering or sale in
any jurisdiction, or of the initiation or threatening of any proceedings for any
of such purposes, (vi) the occurrence of any event that would reasonably be
expected to cause the Company to withdraw or terminate the Offer or would permit
the Company to exercise any right not to accept tendered Securities, (vii) any
proposal or requirement to make, amend or supplement any other Offer Material,
(viii) the commencement of any material litigation or the issuance of any order
or the taking of any other action by any administrative or judicial tribunal or
other governmental agency or instrumentality concerning the Offer (and, if in
writing, will furnish you a copy thereof), (ix) the issuance by any state
securities commission or other regulatory authority of any order suspending the
qualification or the exemption from qualification of the Company Shares under
state securities or blue sky laws or the initiation or threatening of any
proceeding for that purpose, (x) the occurrence of any event, or the discovery
of any fact, the occurrence or existence of which would reasonably be expected
to (a) cause the Company to amend, withdraw or terminate the Offer, (b) cause
any representation or warranty contained in this Agreement to be untrue or
inaccurate, or (c) permit the Company to exercise any right not to exchange the
Securities tendered under the Offer (and the Company will so advise you before
such rights are exercised) and (xi) any other information relating to the Offer
which you may from time to time reasonably request.
14
The Company agrees that if any event occurs or condition exists as a
result of which the Offer Material (other than the Registration Statement and
the Prospectus, which are discussed in Section 8(g) below) would include an
untrue statement of a material fact, or omit to state any material fact
necessary to make the statements therein, in light of the circumstances existing
when the Offer Material is delivered to a holder of Securities, not misleading,
or if, in the opinion of the Company, after consultation with you, it is
necessary at any time to amend or supplement the Offer Material to comply with
applicable law, the Company shall immediately notify you, prepare an amendment
or supplement to the Offer Material that will correct such statement or omission
or effect such compliance and supply such amended or supplemented Offer Material
to you.
(b) The Company will promptly effect the filings necessary
pursuant to Rule 424 and will take such steps as it deems necessary to ascertain
promptly whether the Prospectus transmitted for filing under Rule 424 was
received for filing by the Commission and, in the event that it was not, it will
promptly file the Prospectus. The Company will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is issued, will
make every reasonable effort to obtain the lifting thereof at the earliest
possible moment.
The Company will file promptly all reports or information statements
required to be filed with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the 1934 Act subsequent to the date of the Preliminary Prospectus and
for so long as the delivery of a prospectus is required in connection with the
Offer. The Company will promptly file with the Commission on the Commencement
Date a Schedule TO and will promptly file as required any and all necessary
Amendments.
(c) On the Commencement Date, the Company will cause to be
delivered to each registered holder of the Securities, as soon practicable, a
copy of the Preliminary Prospectus and Letter of Transmittal and all other
appropriate Offer Material. Thereafter, to the extent practicable until the
expiration or termination of the Offer, the Company will use its best efforts to
cause copies of such material to be mailed to each person who becomes a
registered holder of any Company Shares.
(d) The Company will give you notice of its intention to file or
prepare any amendment to the Registration Statement (including any filing under
Rule 462(b) of the 1933 Act regulations), or any amendment, supplement or
revision to either the prospectus included in the Registration Statement at the
time it became effective or to the Prospectus, whether pursuant to the 1933 Act,
the 1934 Act or otherwise, will furnish you with copies of any such documents a
reasonable amount of time prior to such proposed filing or use, as the case may
be, and will not file or use any such document to which you shall reasonably
object in writing.
15
(e) The Company has furnished or will deliver to you, without
charge, one conformed copy of the Registration Statement as originally filed and
of each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and conformed copies of all consents and certificates of
experts, and will also deliver to you, without charge, as many conformed copies
of the Registration Statement as originally filed and of each amendment thereto
(without exhibits) as you may reasonably request. The Company further agrees
that the Registration Statement and each amendment thereto furnished to you will
be identical to any electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(f) The Company will deliver to you, without charge, as many
copies of the Prospectus as you may reasonably request, and the Company hereby
consents to the use of such copies for purposes permitted by the 1933 Act. The
Company will furnish to you, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus as you may reasonably request. The Company
further agrees that the Prospectus and any amendments or supplements thereto
furnished to you will be identical to any electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(g) The Company will comply with the 1933 Act and the 1934 Act so
as to permit the completion of the distribution of the Company Shares as
contemplated in this Agreement and in the Registration Statement and the
Prospectus. If at any time when the Prospectus is required by the 1933 Act or
the 1934 Act to be delivered in connection with the distribution of the Company
Shares, any event shall occur or condition shall exist as a result of which it
is necessary, in the opinion of your counsel or counsel for the Company, to
amend the Registration Statement in order that the Registration Statement will
not 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
not misleading or to amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances existing at the time it is delivered to a holder of
Securities, not misleading, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act, the Company will promptly prepare and file with the Commission, subject to
the terms of this Agreement, such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Company will furnish to you,
without
16
charge, such number of copies of such amendment or supplement as you may
reasonably request.
(h) The Company will use its commercially reasonable efforts, in
cooperation with you and in accordance with Rule 13e-4 of the 1934 Act, to
qualify the Company Shares for offering and sale under the applicable securities
laws of such states and other jurisdictions (domestic or foreign) as you and the
Company may reasonably designate and to maintain such qualifications in effect
for a period of not less than one year from the date of this Agreement;
provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject. In each jurisdiction in which the Company
Shares have been so qualified, the Company will file such statements and reports
as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the date of
this Agreement.
(i) The Company will not, directly or indirectly, distribute the
Offer Material to any holder of Securities in or from any jurisdiction outside
the United States, or otherwise extend the Offer to any holder of Securities
residing in any jurisdiction outside the United States, except under
circumstances that will result in compliance with the applicable laws and
regulations of such jurisdiction.
(j) The Company will timely file such reports pursuant to the 1934
Act as are necessary in order to make generally available to its security
holders as soon as practicable an earnings statement for the purposes of, and to
provide the benefits contemplated by, the last paragraph of Section 11(a) of the
1933 Act.
(k) On or prior to the Commencement Date, the Company will have
entered into agreements with the Information Agent and the Exchange Agent and
will have made appropriate arrangements, to the extent applicable, with DTC or
any other "qualified" securities depositary to allow for the book-entry movement
of the tendered Securities between depositary participants and the Exchange
Agent.
9. Documentary Covenants. (a) The Company covenants that it
shall, on the Commencement Date, deliver or cause to be delivered to you each of
(i) the signed opinions, dated the Commencement Date, of Xxxxx X. Xxxxxx, Esq.,
Senior Vice President and General Counsel of the Company, Xxxxxx, Xxxx &
Xxxxxxxx LLP, counsel for the Company, and White & Case LLP, tax counsel for the
Company, each substantially in the form set forth in Exhibits A, B and C hereto
with customary qualifications, assumptions and exceptions reasonably
satisfactory to you, (ii) a certificate of the Treasurer of the Company and the
chief financial officer or chief accounting officer of the Company, dated as of
the
17
Commencement Date, to the effect that, (y) the Company Shares have been duly
approved for listing on the New York Stock Exchange, subject to official notice
of issuance and (z) since the date of the most recent financial statements
included in the Registration Statement and the Prospectus, there has been no
Material Adverse Change (other than as set forth in the Prospectus), (iii) a
certificate, dated the Commencement Date, of the Secretary of the Company in
form and substance reasonably satisfactory to you and (iv) a letter from Ernst &
Young LLP, dated as of the Commencement Date, in form and substance reasonably
satisfactory to you, containing statements and information of the type
ordinarily included in accountants' "comfort letters" with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(b) Unless you have previously withdrawn as Dealer Managers, the
Company covenants that it shall, on the Acceptance Date, deliver or cause to be
delivered to you each of the documents listed in clauses (i) through (v) below
and that it will not accept Securities tendered pursuant to the Offer unless on
such Acceptance Date: (i) the Company shall have delivered or caused to be
delivered to you the signed opinions, dated the Acceptance Date, of Xxxxx X.
Xxxxxx, Esq., Senior Vice President and General Counsel of the Company, Xxxxxx,
Xxxx & Xxxxxxxx LLP, counsel for the Company, and White & Case LLP, tax counsel
to the Company, each substantially in the form set forth in Exhibits D, E and F
hereto with customary qualifications, assumptions and exceptions reasonably
satisfactory to you, (ii) the Company shall have delivered or caused to be
delivered written evidence that the Company Shares are duly authorized for
listing on the New York Stock Exchange, (iii) the Company shall have delivered
or caused to be delivered to you a certificate of the Treasurer of the Company
and the chief financial officer or chief accounting officer of the Company,
dated as of the Acceptance Date, to the effect that (w) since the date of this
Agreement, there has been no Material Adverse Change (other than as set forth in
the Prospectus), (x) the Company's representations and warranties in this
Agreement are true and correct with the same force and effect as though
expressly made at and as of the Acceptance Date, and (y) the Company has
complied with all agreements and taken all actions to be performed or satisfied
by the Company pursuant to this Agreement at or prior to the Acceptance Date,
and (z) the Registration Statement has been declared effective by the Commission
and no stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted, are
pending or, to the best of such officer's knowledge, are threatened by the
Commission, (iv) the Company shall have delivered or caused to be delivered to
you a certificate, dated the Acceptance Date, of the Secretary of the Company in
form and substance reasonably satisfactory to you, (v) the Company shall have
delivered or have caused to be delivered to you a letter from Ernst & Young LLP,
dated as of the Acceptance Date, to the effect that Ernst & Young LLP reaffirms
the statements made in the letter furnished pursuant to subsection (a)(iv) of
this Section 9, except that the
18
specified date referred to shall be a date not more than three business days
prior to the Acceptance Date and (vi) there shall not be any reasonable
likelihood that the acceptance for exchange of the outstanding Securities
pursuant to the Offer will cause the outstanding Securities to be de-listed from
the New York Stock Exchange for any reason.
10. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Dealer Manager and the affiliates and
respective directors, officers, employees, representatives, advisors and agents
of each Dealer Manager and each person who controls any of the Dealer Managers
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
(each of the Dealer Managers and each such person being an "INDEMNIFIED PARTY")
as follows:
(i) from and against any and all losses, claims, damages,
liabilities and reasonable expenses whatsoever, joint or several, as
incurred, to which such Indemnified Party may become subject under any
applicable federal or state law, or otherwise, and related to, arising
out of, or based on (A) any untrue statement or alleged untrue
statement of a material fact contained in the Offer Material, as
amended or supplemented, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading, (B) any breach by the Company of any of
its representations, warranties or agreements contained herein, (C) the
Company's failure to make or consummate the Offer or the withdrawal,
rescission, termination, amendment or extension of the Offer or any
other failure on the Company's part to comply with the terms and
conditions contained in the Offer Material, (D) any of the transactions
contemplated in the Offer Material or the engagement of the Dealer
Managers pursuant to, and the performance by the Dealer Managers of the
services contemplated by, this Agreement except in the case of this
clause (D) to the extent that any losses, claims, damages, liabilities
or expenses are found in a final judgment by a court of competent
jurisdiction to have resulted from the gross negligence, bad faith or
willful misconduct of an Indemnified Party, or (E) any action taken or
omitted to be taken by an Indemnified Party with the consent of the
Company or in conformity with the instructions or actions or omissions
of the Company;
(ii) from and against any and all losses, claims, damages,
liabilities and reasonable expenses whatsoever, as incurred, to the
extent of the aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever related to, arising
out of or based on any matter described in subparagraph (i) above,
19
provided that any such settlement is effected with the written consent
of the Company (which consent shall not be unreasonably withheld); and
(iii) from and against any and all reasonable expenses
whatsoever, as incurred (including the fees and disbursements of
counsel chosen by you), reasonably incurred in investigating, preparing
or defending against any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever related to, arising out of or based on any matter described
in (i) above, whether or not such Indemnified Party is a party and
whether or not such claim, action or proceeding is initiated or brought
by or on behalf of the Company, to the extent that any such expense is
not paid under subparagraph (i) or (ii) above;
provided, however, that the Company shall not be liable under clause
(A) of subparagraph (i) above to the extent that any losses, claims,
damages, liabilities or expenses arise out of any untrue statement or
omission or alleged untrue statement or omission made in the Offer
Material in reliance upon and in conformity with written information
furnished to the Company by the Dealer Managers expressly for use in
the Offer Material, it being understood and agreed that the only such
information furnished by any Dealer Manager consists of such Dealer
Manager's legal and marketing name.
(b) The Company agrees that no Indemnified Party shall have any
liability (whether direct or indirect, in contract or tort or otherwise) to the
Company, its security holders or creditors relating to or arising out of the
engagement of the Dealer Managers pursuant to, or the performance by the Dealer
Managers of the services contemplated by, this Agreement except to the extent
that any loss, claim, damage, liability or expense is found in a final judgment
by a court of competent jurisdiction to have resulted from the gross negligence,
bad faith or willful misconduct of the Dealer Managers.
(c) If the indemnification provided for in Section 10(a) hereof is
for any reason unavailable to or insufficient to hold harmless an Indemnified
Party in respect of any losses, liabilities, claims, damages or expenses
referred to therein (other than as a result of the proviso to Section 10(a) or,
in the case of clause (D) of Section 10(a)(i), as a result of the gross
negligence, bad faith or willful misconduct of an Indemnified Party), then the
Company agrees to contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such Indemnified Party, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits to the Company on the one hand and to the Dealer Managers on the other
hand from the Offer (whether or not consummated) or (ii) if, but only if, the
allocation provided by clause (i) is for any reason held unenforceable, in such
proportion as is appropriate to reflect not only
20
the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and of the Dealer Managers on the other
hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations. The relative benefits to the Company on the one hand
and the Dealer Managers on the other hand, in connection with the Offer (whether
or not consummated) shall be deemed to be in the same proportion as the total
value paid or proposed to be paid to holders of the Securities pursuant to the
Offer (whether or not consummated) bears to the fees actually received by the
Dealer Managers pursuant to Section 4 hereunder. The relative fault of the
Company on the one hand and the Dealer Managers on the other hand shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company or by the
Dealer Managers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Dealer Managers agree that it would not be just and
equitable if contribution pursuant to this Section 10(c) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 10(c). The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an Indemnified Party and referred to above in this Section 10(c) shall be
deemed to include any legal or other expenses reasonably incurred by such
Indemnified Party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission; provided,
however, that to the extent permitted by applicable law, in no event shall any
of the Dealer Managers be required to contribute any amount which, in the
aggregate, exceeds the aggregate fees received by such Dealer Manager under
Section 4 of this Agreement.
(d) In the event an Indemnified Party is requested or required to
appear as a witness in any action brought by or on behalf of or against the
Company, the Company agrees to reimburse such Indemnified Party for all
reasonable expenses as incurred by such Indemnified Party in connection with
such Indemnified Party's appearing and preparing to appear as such a witness,
including, without limitation, the reasonable fees and disbursements of its
legal counsel.
(e) Promptly after receipt by an Indemnified Party of written
notice of any claim or commencement of an action or proceeding with respect to
which indemnification or contribution may be sought hereunder, such Indemnified
Party shall notify the Company in writing of such claim or of the commencement
of such action, claim or proceeding, but failure so to notify the Company will
not relieve the Company from any liability which it may have hereunder to such
21
Indemnified Party except to the extent that the Company has been prejudiced in
any material respect by such failure, and in any event will not relieve the
Company from any other liability that it may have to such Indemnified Party. In
the event of any such claim, action or proceeding, if such Indemnified Party
shall notify the Company of the commencement thereof, the Company shall be
entitled to participate therein and, to the extent that it wishes, may assume
the defense thereof, with counsel reasonably satisfactory to such Indemnified
Party, and shall pay the reasonable fees and expenses of such counsel; provided,
however, (i) if the Company fails to assume such defense within fifteen business
days after receiving written notice of any such claim, action or proceeding or
(ii) if there exists or may exist a conflict of interest that would make it
inappropriate in the reasonable judgment of such Indemnified Party for the same
counsel to represent both the Indemnified Party and the Company, then such
Indemnified Party shall be entitled to retain its own counsel at the reasonable
expense of the Company provided, further, however, that the Company shall not be
required to pay the fees and expenses of more than one separate counsel (in
addition to any local counsel) for all Indemnified Parties in any jurisdiction
in respect of any single claim, action or proceeding. In respect of any claim,
action or proceeding the defense of which shall have been assumed by the Company
in accordance with the foregoing, each Indemnified Party shall have the right to
participate in such litigation and to retain its own counsel at its own expense.
(f) The Company agrees that, without your prior written consent,
it will not settle, compromise or consent to the entry of any judgment in or
with respect to any pending or threatened claim, action, investigation or
proceeding in respect of which indemnification or contribution could be sought
under this Section 10 (whether or not you or any other Indemnified Party is an
actual or potential party to such claim, action, investigation or proceeding),
unless such settlement, compromise or consent (i) includes an unconditional
release of each Indemnified Party from all liability arising out of such claim,
action, investigation or proceeding and (ii) does not include a statement as to,
or an admission of, fault, culpability or a failure to act by or on behalf of an
Indemnified Party. The Company shall not be liable for any settlement of any
proceeding effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with such consent the Company agrees to
indemnify the Indemnified Party from and against any loss or liability by reason
of such settlement.
(g) If at any time an Indemnified Party shall have requested that
the Company reimburse the Indemnified Party for fees and expenses of counsel,
the Company agrees that it shall be liable for any settlement effected without
its written consent if (i) such settlement is entered into more than 45 days
after receipt by the Company of the aforesaid request, (ii) the Company shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) the Company shall not have
reimbursed
22
such Indemnified Party in accordance with such request prior to the date of such
settlement.
(h) The rights of any Indemnified Party under this Agreement shall
be in addition to and not in limitation of any rights that any Indemnified Party
may have at common law or otherwise.
11. Survival of Indemnities, Representations, Warranties, Etc. The
indemnity and contribution agreements contained in Section 10, the provisions of
Sections 4 and 5 and the representations and warranties of the Company set forth
in this Agreement shall remain operative and in full force and effect,
regardless of (i) any failure to commence, or the withdrawal, termination or
consummation of, the Offer or the termination or assignment of this Agreement,
(ii) any investigation made by or on behalf of the Company or any Indemnified
Party and (iii) any withdrawal by you pursuant to Section 3.
12. Severability of Provisions. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any rule of
law, or public policy, all other provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the agreements contained herein is not affected in any manner adverse to any
party. Upon such determination that any term or provision is invalid, illegal or
unenforceable, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner in order that the agreements contained
herein may be performed as originally contemplated to the fullest extent
possible.
13. Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in two or more separate counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
14. Parties In Interest. This Agreement, including any right to
indemnity or contribution hereunder, shall inure to the benefit of and be
binding upon the Company, the Dealer Managers and the other Indemnified Parties
(as defined in Section 10) and their respective successors and assigns. Nothing
in this Agreement is intended, or shall be construed, to give to any other
person or entity any right hereunder or by virtue hereof.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS EXECUTED IN AND PERFORMED IN THAT STATE.
23
16. References to the Dealer Managers. The Company agrees that any
reference to any of the Dealer Managers in the Registration Statement,
Prospectus or Offer Material, or in any other release or communication relating
to the Offer, is subject to your prior approval, which approval shall not be
unreasonably withheld or delayed.
17. Notices. All notices and other communications required or
permitted to be given under this Agreement shall be in writing and shall be
deemed given when so delivered in person, by overnight courier, by facsimile
transmission (with receipt being confirmed by telephone or by automatic
transmission report) or two business days after being sent by registered or
certified mail (postage prepaid, return receipt requested), as follows:
(a) If to the Dealer Managers:
Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Four World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No. (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No. (000) 000-0000
Attention: Xxxxxxx Xxxx, Esq./Xxxxxxx
Xxxxxx, Esq.
and
(b) If to the Company:
The Xxxxxxxx Companies, Inc.
Xxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxxx 00000
Facsimile No. (000) 000-0000
Attention: Treasurer
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Facsimile No. (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
24
18. Securities Positions. The Company acknowledges that it has no
objection to the fact that, in the course of trading activities, the Dealer
Managers may from time to time have positions in, and, in accordance with
applicable law, buy or sell securities of, the Company and its affiliates.
19. Tombstone. You may place an announcement in such newspapers
and periodicals as you may choose, stating that the Dealer Managers are acting
or have acted as exclusive dealer managers to the Company in connection with the
Offer. Any such announcement shall be at your sole option and expense and
subject to the reasonable approval of the Company.
20. Waiver of Right to Trial by Jury and Applicable Law. The
Dealer Managers and the Company each waive any right to trial by jury in any
action, claim, suit or proceeding with respect to the engagement of the Dealer
Managers hereunder.
21. Miscellaneous. The descriptive headings contained in this
Agreement are incorporated for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Agreement.
22. Entire Agreement; Amendment. This Agreement supersedes all
prior agreements and undertakings, both written and oral, of the parties hereto,
or any of them, with respect to the subject matter hereof and constitutes the
entire understanding of the parties hereto with respect to the subject matter
hereof. This Agreement may not be waived, amended or modified except in writing
signed by each party to be bound hereby.
[SIGNATURE PAGES FOLLOW]
25
Please indicate your willingness to act as a Dealer Manager on the
terms set forth herein and your acceptance of the foregoing provisions by
signing in the space provided below for that purpose and returning to us a copy
of this letter, whereupon this letter shall constitute a binding agreement among
us.
Very truly yours,
THE XXXXXXXX COMPANIES, INC.
By:
---------------------------------------
Name:
Title:
Accepted as of the date first above written:
XXXXXXX XXXXX & CO.,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
----------------------------------------------------
Name:
Title:
CITIGROUP GLOBAL MARKETS INC.
By:
----------------------------------------------------
Name:
Title:
BANC OF AMERICA SECURITIES LLC
By:
----------------------------------------------------
Name:
Title:
