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Exhibit 1.1
DEALER MANAGER AGREEMENT
July 14, 2000
XXXXXX, XXXXXXXX & COMPANY, INC.
0000 00xx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Ladies and Gentlemen:
This agreement (the "Agreement") will confirm the
understanding among Metretek Technologies, Inc., a Delaware corporation (the
"Company" or "us" or "we") and Xxxxxx, Xxxxxxxx & Company, Inc. ("SNC" or "you")
pursuant to which the Company has retained SNC, on the terms and subject to the
conditions set forth herein, to act as exclusive dealer manager for the Company
in connection with the proposed redemption by the Company of all of its
outstanding warrants that were issued in September 1998 as dividends to its
existing stockholders (the "Subject Warrants"). The Subject Warrants are more
particularly described in post-effective amendment number 1 to that certain
registration statement on Form S-3 (File No. 333-60925) declared effective by
the Securities and Exchange Commission on September 10, 1988 (the "Original
Registration Statement").
1. RETENTION. The Company hereby retains SNC as its exclusive dealer
manager in connection with the redemption by the Company of the Subject
Warrants and the exercise of the Subject Warrants by the holders
thereof (the "Redemption") and, subject to the terms and conditions
hereof, you agree to act as the Company's exclusive dealer manager in
connection with the Redemption. The Company hereby authorizes you to
act on its behalf in accordance with this Agreement and the terms of
the Redemption Documents (defined below), which Redemption Documents
you and any other broker or dealer or any commercial bank or trust
company or nominee approved by the Company (collectively, the
"Brokers") are entitled to use in connection with the solicitation of
the exercise of the Subject Warrants prior to the date the Subject
Warrants are to be redeemed (the "Redemption Date"). You and the
Company agree to furnish no other written material to any record holder
of the Subject Warrants (a "Holder") in connection with the Redemption;
provided, however, that the Company may provide written materials to
Holders if (i) such material is concurrently or has previously been
filed with the Securities and Exchange Commission (the "Commission"),
and (ii) such material is delivered to SNC within a reasonable time
prior to its public dissemination or delivery to Holders in order to
provide you with an opportunity to review and comment thereon. In so
soliciting, you shall act as an independent contractor and shall not be
deemed to act as agent of the Company, and the Company shall not be
deemed to act as your agent. In addition, in so soliciting, no Broker
shall be deemed to act as your agent or as agent of the Company, and
you shall not be deemed to act as the agent of any Broker.
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2. MAILING OF REDEMPTION DOCUMENTS. Prior to the commencement of the
Redemption, the Company agrees to furnish you with as many copies as
you may reasonably request of (i) the notice of redemption relating to
the Redemption (the "Redemption Notice") and the Consent and Letter of
Transmittal to be used by Holders to tender or exercise the Subject
Warrants (the "Letters of Transmittal"), the form of letter to Brokers
and the form of letter from Brokers to clients relating to the
Redemption (the "Broker/Client Letters"), any form of newspaper
advertisement or press release, the Guidelines for Certification of
Taxpayer Identification Number and the Consent and Notice of Guaranteed
Delivery relating to the Redemption (the "Notice of Guaranteed
Delivery"), each as required, (ii) each document required to be filed
with the Commission pursuant to the provisions of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), pertaining to
the Company during the term of this Agreement, including the
post-effective amendment number 1 to the Original Registration
Statement to be filed with the Commission and be declared effective by
the Commission prior to the commencement of the Redemption (the
post-effective amendment number 1 to the Original Registration
Statement, as so declared effective, shall be referred to herein as the
"S-3"), with respect to the shares of common stock issuable upon
exercise of the Subject Warrants, and (iii) each appendix, attachment,
modification, amendment or supplement to any of the foregoing and all
related documents (each of (i), (ii) and (iii), a "Redemption Document"
and, collectively, the "Redemption Documents"). The terms Redemption
Document and Redemption Documents include any documents incorporated
therein by reference or deemed to be incorporated therein by reference.
At the commencement of the Redemption, the Company shall cause timely
to be delivered or mailed to each Holder legally or contractually
entitled thereto, each Redemption Document and any other offering
materials prepared expressly for use by Holders in tendering,
exercising or otherwise participating in the Redemption, together with
a return envelope. Thereafter, to the extent practicable, until the
Redemption Date, the Company shall use its reasonable best efforts to
cause copies of such materials to be mailed to each person who becomes
a Holder.
In connection with the Redemption, if (a) the Company uses or permits
the use of, or files with the Commission or any other governmental or
regulatory authority or body, any Redemption Document (other than any
document incorporated by reference into any Redemption Notice) that (i)
has not been submitted to you on a timely basis for your comments or
(ii) has been so submitted and with respect to which you reasonably
object, (b) any restraining order or injunction shall have been issued
or any investigation, action, claim, suit or proceeding shall have been
commenced with respect to any aspect of the Redemption or with respect
to any of the transactions contemplated by the Redemption Documents
before any foreign, federal, state or local authority, regulatory body,
administrative agency, court or other governmental or
quasi-governmental body, including the Commission, that in the opinion
of your counsel makes it legally inadvisable for you to continue to act
hereunder, or (c) the Company shall have breached in any material
respect any of its representations, warranties, agreements or covenants
herein, and such breach shall not be promptly cured after notice, then
you shall be entitled to withdraw as the dealer manager in connection
with the Redemption, without any liability or penalty to you or any
other Indemnified Person (as defined in Schedule A hereto) for such
withdrawal and without loss of any right to indemnification or
contribution provided in this Agreement (including such Schedule A) or
to the payment of all fees and expenses payable hereunder that have
accrued to the date of the withdrawal. If you should withdraw, the fees
accrued and reimbursement for your documented out-of-pocket expenses
through the date of such withdrawal shall be paid to you in cash
promptly after such date.
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3. CONDUCT OF REDEMPTION.
(a) You agree as dealer manager, in accordance with your customary
practice, to perform in connection with the Redemption those
services as are customarily performed by investment banking
concerns in connection with similar warrant redemptions,
including using your reasonable best efforts to solicit the
exercise of the Subject Warrants in the Redemption;
notwithstanding the foregoing, we agree that nothing set forth
in this Agreement shall require you to continue to render
services hereunder (i) for the period during which any
injunction, restraining order or other adverse judicial or
regulatory ruling, declaration or other order shall remain in
effect with respect to the Redemption or with respect to any
of the transactions in connection with, or contemplated by
such Redemption if in your good faith judgment upon advice of
counsel you reasonably believe it inadvisable to render
services pursuant hereto, or (ii) if your continuing so to act
could, in your good faith judgment based on the reasonable
advice of counsel, violate any statute, regulation or other
law of the United States of America or any state thereof or
other jurisdiction applicable to the Redemption or any other
transaction contemplated by the Redemption Documents;
(b) You shall not be under any liability to the Company or any
other person for any act or omission on the part of any Broker
who solicits exercise of Subject Warrants in the Redemption or
for any act or omission on your part that is not finally
judicially determined to have arisen out of your willful or
reckless misconduct or gross negligence, and you, and the
Indemnified Persons (as defined in Schedule A hereto), shall
have no liability to the Company or any other person in
connection with the services rendered and to be rendered
pursuant to this Agreement, except for any losses, claims,
damages, liabilities and expenses ("Losses") which resulted
primarily from any act or omission in performing your
obligations hereunder, which Losses are finally judicially
determined to have arisen out of your willful or reckless
misconduct or gross negligence; the Company acknowledges and
agrees that, in your capacity as dealer manager, you shall act
as an independent contractor, and any of your duties arising
out of your engagement pursuant to this Agreement shall be
owed solely to the Company (except as required by law);
(c) The Redemption Documents will be prepared and approved by the
Company; you and any other Broker are authorized to use the
Redemption Documents in connection with the solicitation of
Holders in compliance with all applicable laws and
regulations; the Company shall not (i) amend or supplement the
Redemption Documents (other than as such Redemption Documents
may be amended or supplemented by documents that are deemed
incorporated by reference in the Redemption Notice), or (ii)
approve any related material for use in connection with the
Redemption without first having submitted a copy thereof to
you within a reasonable period of time prior to the filing or
use thereof in order to provide you an opportunity to review
and comment thereon. The Company agrees, at its expense, to
furnish to you as many copies of the Redemption Documents in
final form for your use in connection with the Redemption as
you may reasonably request;
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(d) The Company agrees to furnish, or cause to be furnished, to
you cards or lists or copies thereof showing the names and
addresses of, and the aggregate number of shares of Common
Stock issuable upon exercise of the Subject Warrants held by
each Holder as soon as reasonably practicable after the date
hereof, and shall advise you, or cause you to be advised, as
soon as reasonably practical during the continuance of the
Redemption as to (i) any transfers known to the Company or of
record of the Subject Warrants and (ii) such other related
information from time to time as reasonably requested by you;
such notification consisting of the name and address, if
available and permitted by applicable law, of the transferor
and transferee of any Subject Warrants and the date of such
transfer; except as otherwise provided herein, you agree to
use such information only in connection with the Redemption
and not to furnish such information to any other person except
in connection with the Redemption;
(e) The Company shall direct American Securities Transfer & Trust,
Inc., as the warrant agent, transfer agent and registrar (the
"Agent"), to inform you and your counsel during each business
day during the Redemption as to the number of Subject Warrants
which have been tendered or exercised in connection with the
Redemption during the interval since its previous daily report
to you pursuant to this provision;
(f) The Company agrees to advise you promptly upon the occurrence
of any event which could cause the Company to withdraw,
rescind, or modify the Redemption and shall also advise you
promptly of any proposal or requirement to amend or supplement
any filing required by the Securities Act of 1933, as amended
(the "Securities Act"), including the S-3, the Exchange Act or
"blue sky" or other state securities laws; the Company will
prepare and, if necessary, file with the Commission, as
required by applicable law or regulation, any and all
necessary amendments and supplements to the Redemption
Documents; prior to and during the continuance of the
Redemption, the Company will inform you promptly after it
receives notice or becomes aware of the happening of any
event, or the discovery of any fact, that could make any
statement made in any Redemption Document untrue in any
material respect or that could in the reasonable opinion of
legal counsel experienced in securities law matters require
the making of any change in any Redemption Document then being
used in order to make the statements therein, in light of the
circumstances under which they were made, not misleading or
would affect the truth 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; the Company will
provide you promptly, with any other information reasonably
available to the Company relating to the Redemption or any
other transaction contemplated by the Redemption Documents
that you may from time to time reasonably request, and upon
your request, the Company will confirm such information in
writing;
(g) The Company shall use reasonable efforts to cause the Agent to
cooperate with you in all respects reasonably requested by
you;
(h) The Company acknowledges and agrees that you may use the
Redemption Documents as specified herein without any
independent investigation or verification on your part and the
Company represents and warrants to you that you may rely on
the accuracy and adequacy of any information delivered to you
by or on behalf of the Company without
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any independent verification of such information or an
appraisal of the Company's assets and that such information,
including its business, assets, liabilities, financial
condition, plans and prospects, will not contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not
misleading; and
(i) Until the Redemption date, SNC may (but shall be under no
obligation to) purchase and sell Subject Warrants, in the open
market or otherwise, in such amounts and at such prices as it
deems advisable. Any Subject Warrants so purchased and held by
Stifel on the Redemption Date will be exercised by SNC. In
addition, SNC may make purchases and sales of Common Stock, as
a market-maker, in the open market or otherwise, for long or
short account, on such terms as it may deem advisable.
4. COMPENSATION AND EXPENSES REIMBURSEMENT. In consideration of the
services to be rendered by you pursuant hereto, the character and
sufficiency of which the Company hereby acknowledges, the Company
agrees to pay you, in cash, the following non-refundable amounts:
(a) A one-time fee of $25,000 payable upon filing of the S-3 with
the Securities and Exchange Commission;
(b) A fee, payable concurrently with the termination of the
Redemption pursuant to the Redemption Documents, equal to
$0.15 for each share of Common Stock for which a Subject
Warrant has been exercised, and only to the extent such amount
exceeds the payment in Section 4(a) above;
(c) Whether or not the Redemption is commenced or consummated and
whether this Agreement has expired or is terminated, including
upon your resignation as dealer manager for whatever reason,
the Company agrees to pay promptly after receipt of
documentation thereof, in cash, all of the out-of-pocket
expenses incurred by you in connection with the services
rendered or to be rendered by you pursuant to this Agreement,
including all reasonable fees and out-of-pocket expenses of
your counsel, up to $20,000 in aggregate;
(d) Whether or not the Redemption is commenced or consummated and
whether or not this Agreement has expired or has been
terminated, the Company shall pay (i) all expenses of
preparation, printing, mailing and dissemination of the
Redemption Documents and any other documents related to the
Redemption or other transactions contemplated by the
Redemption Documents; (ii) all costs of furnishing such copies
of the Redemption Documents as may reasonably be requested in
connection with the Redemption or other transactions
contemplated by the Redemption Documents; (iii) all fees and
expenses paid by Brokers (including you) for their customary
mailing and handling expenses incurred in forwarding
Redemption Documents and any other documents related to the
Redemption to their customers; (iv) all fees and expenses of
the Agent or other persons engaged by the Company to render
services in connection with the Redemption or other
transactions contemplated by the Redemption Documents; (v) all
advertising charges; (vi) all filing fees applicable to any
transaction addressed herein required to be paid to any
governmental or regulatory agency (including those required,
if any, of you by the National Association of Securities
Dealers, Inc. (the "NASD")); and (vii) all other
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expenses customarily payable by an issuer in connection with
the Redemption but not including any expenses payable by
holders of Subject Warrants; and
(e) All payments to be made by the Company pursuant to this
Section 4 shall be made as soon as reasonably practicable
after the expiration or termination of the Redemption;
provided, however, that the reimbursement of your reasonable
out-of-pocket expenses (excluding the fees and expenses of
counsel) shall be due upon request as such expenses are
incurred and after supporting documentation thereof is
received by the Company.
5. TERMINATION. Subject to Section 11 hereof, you may resign and,
following 30 days' notice, the Company may terminate your engagement
hereunder at any time upon receipt of written notice to such effect by
the other party. Your engagement hereunder may be extended by written
agreement of the parties hereto. If this Agreement were to expire or
terminate for any reason, however, you shall be entitled to prompt
payment of all of the fees earned and amounts payable in respect of
expenses incurred in accordance with Section 4 hereof up to the
effective date of such expiration or termination, and the indemnity and
contribution provisions contained in Schedule A hereto and the
representations, warranties and agreements contained in Section 7
hereof, shall remain in full force and effect.
6. INDEMNITY. The Company agrees to indemnify the Indemnified Parties (as
defined in Schedule A) as set forth in Schedule A, which Schedule A is
incorporated herein and made a part hereof.
7. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to you that, at the commencement of the Redemption at each
mailing or other dissemination of any Redemption Document, and upon the
consummation of and throughout the Redemption:
(a) The Company and each of its subsidiaries have been duly
organized, are validly existing and in good standing as
corporations under the laws of their jurisdiction of
incorporation and have the requisite power and authority to
carry on their business as it is currently being conducted, to
own, lease and operate their properties and the Company has
the full corporate power and authority to authorize the
Redemption, to execute, deliver and perform this Agreement and
to consummate the transactions contemplated by the Redemption
Documents, and each of the Company and its subsidiaries is
duly qualified and is in good standing as a foreign
corporation authorized to do business in each jurisdiction
where the operation, ownership or leasing of property or the
conduct of its business requires such qualification, except
where the failure to be so qualified would not, singly or in
the aggregate, have a material adverse effect or a prospective
material adverse effect on the properties, plans, business,
results of operations, general affairs, management, condition
(financial or otherwise), business prospects, or business
affairs of the Company and its subsidiaries taken as a whole
(a "Material Adverse Effect");
(b) Prior to the commencement of the Redemption, the Company shall
have taken all corporate action necessary to authorize the
making and consummation thereof and the consummation of the
other transactions contemplated by the Redemption Documents;
(c) Each of the Redemption Documents as then amended or
supplemented and the Redemption will comply with the
Securities Act and the Exchange Act, as such Acts may be
applicable, and in each case the applicable rules and
regulations of the
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Commission promulgated pursuant thereto, and with all
applicable rules or regulations of any governmental or
regulatory authority or body, including applicable "blue sky"
or similar securities laws, and no consent or approval of, or
filing with, any governmental body or agency is required in
connection with the commencement or consummation of the
Redemption, other than those consents or approvals which will
have been obtained or any filing which will have been made
prior to the commencement or consummation, as the case may be,
of the Redemption;
(d) None of the Redemption Documents and no other report, filing,
document, release, or communication published, delivered to
Holders, or filed with any governmental or regulatory body by
or on behalf of the Company in connection with the Redemption
including, without limitation, the S-3 or any other such
information or document filed with the Commission, contains or
will contain any untrue statement of a material fact or omits
or will omit to state a material fact required to be stated
therein or necessary to make the statements made therein, in
light of the circumstances under which they were made, not
misleading;
(e) Neither the Company nor any of its subsidiaries is (i) in
violation of its respective charter or bylaws or (ii) in
default in the performance of any obligation, bond, debenture,
note or any other evidence of indebtedness, or any indenture,
mortgage, deed of trust or other contract, lease or other
instrument to which the Company or any of its subsidiaries is
a party or by which any of them is bound, or to which any of
the property or assets of the Company or any of its
subsidiaries is subject, except, in the case of this clause
7(e)(ii), where such default would not have, singly or in the
aggregate, a Material Adverse Effect;
(f) Except as described in the Redemption Documents, there is no
action, suit, or proceeding before or by any court or
governmental agency or body, pending against or affecting the
Company or any of its subsidiaries or affiliates, or any of
their respective assets or properties, which would reasonably
be expected to have, singly or in the aggregate, a Material
Adverse Effect, or which would reasonably be expected to
materially and adversely affect the Company's performance of
its obligations pursuant to this Agreement or the transactions
contemplated hereby, and to the best of the Company's
knowledge, no such proceedings are contemplated or threatened;
neither the Company nor any of its subsidiaries is subject to
any judgment, order, decree, rule or regulation of any court
or other governmental or regulatory authority or body which
would reasonably be expected to have, singly or in the
aggregate, a Material Adverse Effect;
(g) The execution, delivery and performance of this Agreement by
the Company and the consummation of the Redemption and the
consummation of the other transactions contemplated by the
Redemption Documents (i) will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a
default or cause an acceleration of, or result in the
imposition or creation of (or the obligation to create or
impose) any security interest, mortgage, pledge, claim, lien,
encumbrance or adverse interest of any nature (each, a "Lien")
with respect to any obligation under, the charter or bylaws of
the Company or any of its subsidiaries, or any bond, note,
debenture or any other evidence of indebtedness or any
indenture, mortgage, deed of trust or other agreement or
instrument to which the Company or any of its subsidiaries is
a party or by
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which it or any of them is bound, or any order, rule or
regulation of any court or governmental agency or authority
entered in any proceeding to which the Company or any of its
subsidiaries was or is a party or by which it or any of them
is bound, or to which any properties of the Company or any of
its subsidiaries is or may be subject, or an acceleration of
indebtedness pursuant to the charter or bylaws, or other
equivalent instruments, of the Company or any of its
subsidiaries, or any order of any United States federal or
state authority, regulatory body, administrative agency, court
or other governmental or quasi-governmental body, including
the Commission, having jurisdiction over the Company or any of
its subsidiaries or any of their properties, or violate or
conflict with any statute, rule or regulation or
administrative regulation or decree or court decree applicable
to the Company or any of its subsidiaries or affiliates or any
of its assets or properties where, in any such instance, such
conflict, breach, violation, default, acceleration of
indebtedness or Lien would reasonably be expected to have,
singly or in the aggregate, a Material Adverse Effect and (ii)
will not conflict with or violate any United States federal or
state rule, regulation, statute, law, order or decree of any
United States federal or state authority, regulatory body,
administrative agency, court or other governmental or
quasi-governmental body, including the Commission, applicable
to the Company or any of its subsidiaries or any of its
properties or assets;
(h) This Agreement has been duly authorized and validly executed
and delivered by the Company and constitutes a legal, valid
and binding agreement of the Company, enforceable against the
Company in accordance with its terms;
(i) No injunction or restraining order or any adverse motion,
ruling, declaration, decree or other order has been issued or
proceedings, litigation or investigation initiated or, to the
best knowledge of the Company, threatened (and no adverse
development in any pending litigation shall have occurred) by
or before, any United States federal or state authority,
regulatory body, administrative agency, court or other
governmental or quasi-governmental body, including the
Commission, with respect to: (i) the making or the
consummation of the Redemption or the other transactions
contemplated by the Redemption Documents; and (ii) the
execution, delivery or performance by the Company of this
Agreement;
(j) Except as disclosed in the Redemption Documents, there has not
occurred since the date of the most recent audited financial
statements contained in the S-3 any Material Adverse Effect,
or any development involving a prospective Material Adverse
Effect, in the properties, plans, business, results of
operations, general affairs, management, condition (financial
or otherwise), business prospects or business affairs of the
Company, together with its subsidiaries and its affiliates
taken as a whole;
(k) The Company has or upon consummation of the Redemption will
have sufficient funds available, and has or will have
sufficient authority to use such funds under applicable law,
to enable it to pay in accordance with the terms of the
Redemption (i) the full consideration that it would have to
pay if all of the Subject Warrants are redeemed pursuant to
the Redemption, and (ii) the fees and expenses payable
pursuant to this Agreement;
(l) The Redemption as described in the Redemption Documents does
not violate the terms of the Subject Warrants;
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(m) The Company is not, nor will it be as a result of the purchase
by it of the Subject Warrants that it may become obligated to
purchase pursuant to the terms of the Redemption, an
"investment company" under the Investment Company Act of 1940
and the rules and regulations promulgated by the Commission
thereunder; and
(n) Except for the S-3 and a Form 8-K to be filed on the date
hereof, the Redemption does not require any filings with the
Commission pursuant to the Securities Act of 1933 or the
Securities and Exchange Act.
8. COVENANTS OF THE COMPANY AND CONDITIONS TO OBLIGATIONS. Your obligation
to render services pursuant to this Agreement shall at all times be
subject, in your discretion, to the following conditions, which (except
for clauses 8(f), 8(i) and 8(j)) the Company covenants to effect:
(a) The Company shall at all times during the Redemption have
performed in all material respects all of its obligations
hereunder theretofore to be performed;
(b) All representations and warranties of the Company contained in
this Agreement are now, and at the commencement of, and at all
times during the continuance, and upon the consummation of,
the Redemption, shall be true and correct in all material
respects;
(c) Prior to the commencement and at the consummation of the
Redemption, the Company shall deliver to you a certificate
from the Company, dated such date and signed by a senior
officer of the Company, to the effect that the representations
and warranties of the Company contained in this Agreement are
true and correct in all material respects as of such date and
that the Company has complied in all material respects with
all of the agreements and satisfied all of the conditions on
its part to be performed or satisfied on or before such date;
(d) At the consummation of the Redemption, you shall have received
the opinions as set forth below of Kegler, Brown, Hill &
Xxxxxx Co., L.P.A., counsel of the Company, dated such date
and reasonably satisfactory to Xxxx, Scholer, Fierman, Xxxx &
Handler, LLP, your counsel, substantially to the effect that:
(1) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the
laws of the State of Delaware. The Company has the
corporate power and corporate authority to enter into
and perform its obligations under this Agreement.
This Agreement has been duly authorized and validly
executed and delivered by the Company.
(2) The Company has taken all corporate action necessary
to authorize the making and consummation of the
Redemption and the other transactions contemplated by
the Redemption Documents.
(3) Except for the S-3 and a Form 8-K to be filed on the
date hereof, the Redemption does not require any
filings with the Commission pursuant to the
Securities Act of 1933 or the Securities and Exchange
Act.
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(4) Such counsel participated in the preparation of the
(a) S-3, and (b) the other Redemption Documents and
such other offering materials and information as the
Company has prepared or approved in connection with
the Redemption. Although such counsel has not
independently verified and accordingly is not passing
upon, and does not assume responsibility for, the
accuracy, completeness or fairness of the statements
contained in the documents referred to in (a) and (b)
above and such counsel has relied as to materiality
to a large extent upon the judgment of officers of
the Company, on the basis of the information that was
developed in the course of the services referred to
above, no facts have come to such counsel's attention
which has caused such counsel to believe that the any
of such documents (apart from the financial and
market data and statistical information contained or
incorporated by reference therein, as to which such
counsel need express no opinion) contain any untrue
statement of a material fact or omit to state a
material fact required to be stated therein or
necessary in order to make the statements therein, in
light of the circumstances under which they were
made, not misleading;
(5) Other than required filings with the Securities and
Exchange Commission, no consent, approval,
authorization or other order of, or filing with, any
Governmental Authority is legally required for the
execution by the Company in connection with the
commencement or consummation by the Company of the
Redemption. The term "Governmental Authority" means
any federal or New York executive, legislative,
judicial, administrative or regulatory body or under
the General Corporation Law of the State of Delaware,
including, without limitation, the Commission.
(6) The execution, delivery and performance of this
Agreement by the Company and the consummation of the
Redemption and the other transactions contemplated by
the Redemption Documents: (A) will not result in a
breach or violation of the charter or bylaws of the
Company, (B) will not conflict with or violate any
Applicable Law or Applicable Order and (C) will not
violate or cause a breach or default under, to the
knowledge of such counsel, any material agreement,
instrument, contract or document evidencing any other
obligation of the Company or its subsidiaries, except
that such counsel need express no opinion in this
paragraph as to whether the Redemption Documents
contain any untrue statement of a material fact or
omit to state a material fact necessary in order to
make the statements therein, in light of the
circumstances under which they were made, not
misleading. The term "Applicable Laws" means those
laws, rules and regulations of the State of New York
and the United States and the provisions of the
General Corporation Law of the State of Delaware
that, in the experience of such counsel, are normally
applicable to transactions of the type contemplated
by the Redemption, and the term "Applicable Orders"
means those orders or decrees of Delaware, New York
or federal Governmental Authorities by which the
Company is bound, the existence of which is actually
known to such counsel.
(7) To the knowledge of such counsel, no restraining
order or injunction has been issued by, and no
investigation, action, claim, suit or proceeding has
been initiated or threatened by or before, any
federal, New York or Delaware
11
authority, regulatory body, administrative agency,
court or other governmental or quasi-governmental
body, or under the General Corporation Law of the
State of Delaware, including the Commission, with
respect to (A) the making or the consummation of any
Redemption, or (B) the execution, delivery or
performance by the Company of this Agreement.
(e) On or prior to the commencement of the Redemption, you shall
have received from Kegler, Brown, Hill & Xxxxxx Co., L.P.A.,
counsel of the Company, a letter dated such date and
reasonably satisfactory to Xxxx, Scholer, Fierman, Xxxx &
Handler, LLP, your counsel, to the effect that they have no
knowledge of any fact that would prohibit them from delivering
the opinion set forth in Section 8(d) above as required
therein;
(f) At all times during the pendency of the Redemption, the
Company shall have furnished to you or your counsel, as the
case may be, such information, certificates and documents as
you or your counsel shall have reasonably requested;
(g) It shall not have become unlawful under any law or regulation,
Federal, state or local, for you to render services pursuant
to this Agreement, or to continue so to act, as the case may
be;
(h) The Company will have advised you promptly of (i) the
occurrence of any event that could cause the Company to
withdraw or terminate the Redemption or would permit the
Company not to consummate the Redemption and (ii) the issuance
to the Company of any comment or order by the Commission or
any other governmental or regulatory authority or body
concerning the Redemption;
(i) The Company represents that it has not retained or caused to
be retained and, during the term of this Agreement, will not
without your prior written consent retain or cause to be
retained as financial advisor, placement agent, dealer manager
or underwriter any other person to advise or assist it (other
than the Agent) with the Redemption or otherwise directly or
indirectly to use any other person to contact, approach or
negotiate with Holders with respect to the Redemption other
than you as their exclusive agent;
(j) All opinions, certificates, letters and other documents
required by this Section 8 will be in compliance with the
provisions hereof only if they are reasonably satisfactory in
form and substance to you and to Xxxx, Scholer, Fierman, Xxxx
& Handler, LLP, your counsel. The Company will furnish you
with such conformed copies of such opinions, certificates,
letters and other documents as you shall reasonably request;
and
(k) The National Association of Securities Dealers, Inc. shall
have reviewed and approved this Agreement and authorized SNC
to perform its obligations hereunder.
9. REFERENCE TO YOU. The Company agrees that any reference to you or any
of your affiliates in any Redemption Document, or any other release,
publication or communication to any party outside the Company, is
subject to your prior approval. If you resign or are terminated prior
to the dissemination of any Redemption Document or any other release or
communication, no reference shall be made therein to you without your
prior written permission.
12
10. ACCESS TO INFORMATION. In connection with your activities hereunder,
the Company agrees to furnish you and your counsel with all information
concerning the Company that you reasonably deem appropriate and agrees
to provide you with reasonable access to the Company's officers,
directors, accountants, counsel, consultants and other appropriate
agents and representatives. To the extent consistent with legal
requirements, all information given to you by the Company, unless
publicly available or otherwise available to you or which otherwise
becomes available to you without restriction or breach of any
confidentiality agreement, shall be held by you in confidence and shall
not be disclosed to anyone other than your agents and advisors without
the Company's prior approval or used for any purposes other than those
referred to in this Agreement.
11. SURVIVAL OF CERTAIN PROVISIONS. The indemnity and contribution
agreements contained in Section 6 of this Agreement (including Schedule
A hereto), the representations and warranties and covenants of the
Company made pursuant to Sections 7 and 8 of this Agreement, the
provisions contained in Sections 4 and 5 of this Agreement and this
Section 11 shall remain operative and in full force and effect
regardless of (a) any investigation made by or on behalf of you or by
or on behalf of any Indemnified Person (as defined in Schedule A
hereto), (b) consummation of the Redemption or any other transaction
contemplated by the Redemption Documents, or (c) any termination or
expiration of this Agreement (other than as the result of a breach of
this Agreement by SNC), and shall be binding upon, and shall inure to
the benefit of, any successors, assigns, heirs and personal
representatives of the Company, you, the Indemnified Persons and any
such person.
12. NOTICES. Notice given pursuant to any of the provisions of this
Agreement shall be in writing and shall be mailed or delivered (a) to
the Company at 0000 Xxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx, 00000,
Attn: A. Xxxxxxx Xxxxxxx, with a copy to Xxxx X. Xxxx, Esq., Kegler,
Brown, Hill & Xxxxxx Co., L.P.A., 00 Xxxx Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxx, Xxxx 00000; and (b) to you at 0000 00xx Xxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxxxxx 00000, Attn: Xxxx Xxxx, with a copy to Xxxx, Scholer,
Fierman, Xxxx & Handler, LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
Attn: Xxxxxxx Xxxxxxxx, Esq.
13. CONSTRUCTION. This Agreement, including Schedule A hereto, incorporates
the entire understanding of the parties with respect to the Redemption
and supersedes all previous agreements and shall be governed by, and
construed in accordance with, the laws of the State of New York as
applied to contracts made and performed in such State, without regard
to principles of conflicts of law. The Company hereby irrevocably and
unconditionally submit to the exclusive jurisdiction of the Federal and
New York State courts located in the City of New York in connection
with any suit, action or proceeding related to this Agreement or any of
the matters contemplated hereby, irrevocably waive any defense of lack
of personal jurisdiction and irrevocably agree that all claims in
respect of any suit, action or proceeding may be heard and determined
in any such court. The Company irrevocably waive, to the fullest extent
they may effectively do so under applicable law, any objection which
they may now or hereafter have to the laying of venue of any such suit,
action or proceeding brought in any such court and any claim that any
such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum and agree that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner
provided by law.
13
14. SEVERABILITY. Any determination that any provision of this Agreement
(including any provision of Schedule A hereto) may be or is,
unenforceable shall not affect the enforceability of the remainder of
this Agreement (including any provision of Schedule A hereto).
15. HEADINGS. The section headings in this Agreement have been inserted as
a matter of convenience of reference and are not to be deemed to be
part of this Agreement.
16. COUNTERPARTS. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all
of which shall constitute but one and the same instrument.
17. THIRD PARTY BENEFICIARIES. This Agreement has been and is made solely
for the benefit of the Company, you and the other Indemnified Persons
referred to in Section 6 and Schedule A hereto and their respective
successors, heirs, personal representatives and assigns, and no other
person shall acquire or have any right under or by virtue of this
Agreement. You shall have no liability or obligation to the Company for
any act or omission of any Broker, and you do not undertake any
obligation to the Company other than for the performance of your
express representations, warranties and agreements hereunder. The
Company agrees and acknowledges that the only information furnished or
to be furnished by you or on your behalf for inclusion in the
Redemption Documents is the description of yourself and your
relationship with the Company to be included in such Redemption
Documents.
18. ADVERTISEMENTS. Subject to the Company's reasonable approval, the
Company agrees that you shall have the right to place advertisements in
financial and other newspapers and journals at your own expense
describing your services to the Company hereunder; provided the
publication of such advertisements shall comply with applicable laws
and regulations, and shall not be detrimental to the Company.
19. MODIFICATION. This Agreement may not be modified or amended except in
writing, duly executed by the parties hereto.
14
If the foregoing terms correctly set forth our agreement,
please confirm this by signing and returning a duplicate copy of this letter.
Thereupon, this letter, as signed in counterpart, shall constitute our agreement
on the subject matter herein.
METRETEK TECHNOLOGIES, INC.
By: /s/ W. Xxxxxxx Xxxxxx
-----------------------------------
Name: W. Xxxxxxx Xxxxxx
Title: President
Confirmed and agreed to as
of the date first above written:
XXXXXX, XXXXXXXX & COMPANY, INC.
By: /s/ Xxxxxxx Xxxx
-------------------------------
Name: Xxxxxxx Xxxx
Title: Managing Director
15
SCHEDULE A
----------
This Schedule A is a part of and is incorporated into that
certain Dealer Manager Agreement (together, this "Agreement") dated July 14,
2000, between Metretek Technologies, Inc. and Xxxxxx, Xxxxxxxx & Company, Inc.
Capitalized terms used herein without definition shall have the meanings
ascribed to them in such Agreement.
The Company agrees to indemnify and hold harmless you, your
affiliates and any other persons controlling you or any of your affiliates
within the meaning of Section 15 of the Securities Act of 1933, as amended, or
Section 20 of the Securities Exchange Act of 1934, as amended, and each of your
and their respective officers, directors, partners, employees, representatives
and agents (you and each such other person or entity being referred to as an
"Indemnified Person"), from and against all losses, claims, damages, judgments,
costs, assessments and other liabilities (collectively, "Liabilities"),
including, without limitation and as incurred, reimbursement of all costs of
investigating, preparing, pursuing, or defending against any such Liability,
including the reasonable fees and expenses of counsel to the Indemnified
Persons, whether or not arising out of pending or threatened litigation or other
action, proceeding or arbitration and whether or not any Indemnified Person is a
party thereto, directly or indirectly caused by, related to, based upon, arising
out of, or in connection with (i) actions taken or omitted to be taken by
Company, its affiliates, employees, directors, officers, partners,
representatives, or agents in connection with any transaction contemplated by
this Agreement, including, without limitation (a) any withdrawal or termination
(other than termination as a result of breach of the agreement by SNC) by the
Company of, or failure by the Company to make or consummate, the Redemption and
(b) any failure by the Company to comply with any agreement or covenant or the
untruth of any representation or warranty contained in this Agreement; (ii)
actions taken or omitted to be taken by any Indemnified Person pursuant to the
terms of, or in connection with services rendered pursuant to, this Agreement;
provided, however, that, in the case of this subsection (ii) only, the Company
shall not be responsible for any Liability or related expense arising solely out
of or based solely upon the willful or reckless misconduct or gross negligence
(as determined by the final judgment of a court of competent jurisdiction, no
longer subject to appeal or further review) of such Indemnified Person; and
(iii) any untrue statement or alleged untrue statement of a material fact
contained in any Redemption Document or any omission or alleged omission to
state therein a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading (other than any
such statement or alleged statement contained in the Redemption Notice, or any
such omission or alleged omission therefrom, in each case, with respect to
information relating to an Indemnified Person which information has been
furnished in writing by or on behalf of such Indemnified Person expressly for
use therein). The Company shall notify you and any Indemnified Person against
whom there is instituted, threatened, or asserted any litigation, proceeding or
claim promptly of such institution, threat or assertion, which involves the
Company or any of its affiliates, assets or properties (and as to which the
Company has notice) in connection with the matters addressed by this Agreement.
If any action or proceeding (including any governmental investigation) shall be
brought or asserted against any Indemnified Person in respect of which indemnity
may be sought from the Company, such Indemnified Person shall promptly notify
the Company in writing (provided that the failure of any Indemnified Person to
give such notice shall not relieve the Company of its obligations pursuant to
this Agreement, except to the extent the Company shall have been materially
prejudiced by such failure) and the Company shall have the right to assume the
defense thereof, including the employment of counsel reasonably satisfactory to
you and the payment of all expenses in connection therewith. Such Indemnified
Person shall have the right to employ separate counsel in any such action or
proceeding and to participate in the defense thereof, but the fees and
16
expenses of such counsel shall be at your expense or that of such Indemnified
Person, unless (a) the Company has agreed to pay the fees and expenses of such
counsel, (b) the Company shall have failed promptly (after notice thereof from
any person) to assume the defense of such action or proceeding and employ
counsel reasonably satisfactory to you in any such action or proceeding, or (c)
the named parties to any such action or proceeding (including any impleaded
parties) include both you or such Indemnified Person, and such Indemnified
Person shall have been advised by counsel that there may be one or more legal
defenses available to you or such Indemnified Person which are different from or
additional to those available to the Company (in which case, if you or such
Indemnified Person notifies the Company in writing that it elects to employ
separate counsel at the expense of the Company, the Company shall not have the
right to assume the defense of such action or proceeding on behalf of you or
such Indemnified Person), it being understood, however, that the Company shall
not, in connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time for all such Indemnified
Persons, which firm shall be designated in writing by you. The Company will not,
without your prior consent, settle, compromise or consent to the entry of any
judgment or otherwise seek to terminate any pending or threatened action or
proceeding in respect of which indemnification or contribution may be sought
pursuant to this Agreement (whether or not any Indemnified Person is a party
thereto), unless such settlement, compromise, consent or termination includes an
unconditional release of each Indemnified Person from all Liabilities arising
out of such action, claim, litigation or proceeding. Without the Company's prior
written consent (which consent shall not be unreasonably withheld), no
Indemnified Person shall settle, compromise or consent to the entry of any
judgment or otherwise seek to terminate any pending or threatened action or
proceeding in respect of which indemnification or contribution is sought
hereunder.
If the indemnification provided for herein is finally
determined by a court of competent jurisdiction to be unavailable to an
Indemnified Person under the first paragraph of this Schedule A in respect of
any Liability or related expense, then the Company, in lieu of indemnifying such
Indemnified Person, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such Liabilities and related expenses (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company and its subsidiaries on the one hand and by you on the other, from
the services rendered pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above, but also the relative fault of the Company and its subsidiaries on
the one hand and the Indemnified Person on the other, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and its subsidiaries on the one hand and received by SNC (and its related
Indemnified Persons), on the other hand, with respect to the Redemption and
other transactions contemplated by the Redemption Documents shall be deemed to
be in the same proportion as (a) the total value of the consideration proposed
to be offered by the Company in connection with such Redemption and other
transactions contemplated by the Redemption Documents bears to (b) the fees
actually paid to you with respect to such Redemption and other transactions
contemplated by the Redemption Documents less any amounts paid or payable or
other liabilities incurred by SNC or any Indemnified Person in respect of
transactions contemplated by this Agreement. The relative fault of the Company
and its subsidiaries on the one hand and such Indemnified Person on the other
hand with respect to the Redemption and other transactions contemplated by the
Redemption Documents shall be determined by reference to, among other things,
whether any untrue or alleged untrue statement of material fact or the omission
or alleged omission to state a material fact related to information supplied by
the Company and its subsidiaries or by such
17
Indemnified Person (it being understood that the only information being provided
by the Indemnified Persons is that information, if any, expressly related to SNC
and SNC's respective relationships with the Company) and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. Notwithstanding the provisions of this Agreement,
the Indemnified Persons, in the aggregate, shall not be required to contribute
any amount in excess of the amount of fees actually received by you pursuant to
Section 4 of this Agreement in connection with such Redemption and other
transactions contemplated by the Redemption Documents, less any amounts paid or
payable or other liabilities incurred by SNC or any Indemnified Person in
respect of transactions contemplated by this Agreement. The Company and you
agree that it would not be just and equitable if contribution pursuant to this
paragraph were determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable considerations
referred to above. The Company also agrees that no Indemnified Person shall have
any liability to the Company for or in connection with this Agreement and the
engagement of you hereunder, except for such Liabilities (and related expenses)
incurred by the Company which arise from actions taken by an Indemnified Person
and then only to the extent they are determined by a court of competent
jurisdiction in a final judgment not subject to appeal or further review to have
resulted solely from such Indemnified Person's willful misconduct or gross
negligence.
The indemnity and contribution obligation of the Company set
forth herein shall be in addition to any liability or obligation the Company may
otherwise have to any Indemnified Person.
