CUSIP No. 208242107
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CUSIP No. 000000000 |
EXHIBIT 2 Letter Agreement Dated November 8, 2010 Between Conn’s, Inc. and Xxxxxxxx Inc.
November 8, 2010
Xx. Xxxxxxx X. Xxxxx
Xxxx’x, Inc.
Chief Executive Officer
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Xxxx’x, Inc.
Chief Executive Officer
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Dear Xx. Xxxxx:
Xxxxxxxx Inc. (“Xxxxxxxx”) is pleased to act as financial advisor to Conn’s, Inc. (the
“Company”) in connection with assisting the Company in evaluating its potential capital and
financing alternatives, whether debt or equity, its existing and proposed debt financing
arrangements and its potential equity or equity-linked capital alternatives, including its proposed
rights offering to the holders of the outstanding common stock of the Company (the “Offering”).
This letter will confirm our mutual understanding of the terms and conditions on which Xxxxxxxx
will provide financial advisory services to the Company. The terms of any financing arrangement,
including in connection with the Offering, will be subject to the Company’s approval, and Xxxxxxxx
is not authorized to make any agreement or commitment on behalf of the Company.
In connection with this engagement, Xxxxxxxx has provided or will provide the following
services:
| 1) | assist the Company in evaluating its existing capital structure and in evaluating potential financing strategies and alternatives; | ||
| 2) | assist the Company in evaluating its debt financing arrangements and in evaluating potential new or revised debt financing arrangements; | ||
| 3) | assist the Company in evaluating and structuring one or more equity or equity-linked financing arrangements, including developing a strategy therefor and developing and evaluating structure, timing and other terms related thereto; | ||
| 4) | assist the Company in formulating a strategy for refinancing its debt facilities and in developing the structure, pricing and timing of its proposed debt refinancing transactions; | ||
| 5) | assist the Company with identifying potential lenders to be contacted in connection with the proposed refinancing of its debt facilities and with developing negotiation strategies and conducting negotiations with respect to its potential debt refinancing transactions; and | ||
| 6) | provide such other investment banking services as may be customarily provided by Xxxxxxxx in connection with any of the foregoing and as may be mutually agreed upon by Xxxxxxxx and the Company. |
As compensation for Xxxxxxxx’ services, the Company will pay to Xxxxxxxx a financial advisory
fee in the amount equal to 3.75% of the total aggregate subscription price received by the Company
from the exercise of Rights upon the closing of the Offering and the related debt refinancing
transactions (the “Refinancing Transactions” and together with the Offering, the “Transactions”).
In addition, the Company will pay or directly reimburse Xxxxxxxx for one-half of the cost of
outside counsel fees incurred by Xxxxxxxx relating to any filings required to be made with the
Financial Industry Regulatory Authority, Inc., but will not reimburse Xxxxxxxx for any other
expenses or costs (including additional outside counsel fees).
Xxxxxxxx and the Company acknowledge that an independent financial advisor will be engaged by
the Rights Committee of the Company’s Board of Directors and will independently advise the Rights
Committee regarding the Offering and the pricing of the Company.
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CUSIP No. 000000000 |
Xxxxxxxx’ engagement as financial advisor (the “Engagement Period”) will terminate on the
earlier of (i) the closing of the Transactions and (ii) six months from the date hereof, unless
extended by mutual written consent. All provisions of the indemnification and contribution rider
attached hereto as Exhibit A shall survive any expiration or termination of this engagement
agreement.
The Company will furnish Xxxxxxxx with such information as Xxxxxxxx believes appropriate to
its assignment. The Company recognizes and confirms that, in performing the services contemplated
by this letter, Xxxxxxxx: (i) will use and rely primarily on the information provided by the
Company and on information available from public sources, which may include information available
through subscription services (collectively, the “Information”); (ii) does not assume
responsibility for the reliability, accuracy or completeness of the Information and does not
undertake to independently verify the Information; (iii) will not perform any audit (financial or
otherwise) or forensic accounting services; (iv) will not make an appraisal of any assets or
liabilities of the Company or of any potential transaction counterparties or otherwise assess the
solvency for bankruptcy law purposes of the Company or of any potential transaction counterparties;
and (v) with respect to any financial forecasts (including cost savings) that may be furnished to
or discussed with Xxxxxxxx by the Company or any other person in connection with any proposed
transaction, will assume that such forecasts have been reasonably prepared and reflect the best
then currently available estimates and judgment of the Company’s or such other person’s management.
The Company will promptly advise Xxxxxxxx if any Information previously provided becomes
inaccurate or is required to be updated. The form and content of the registration statement (the
“Registration Statement”) filed by the Company with the Securities and Exchange Commission (the
“Commission”) in connection with the Offering, including the prospectus and the prospectus
supplement relating thereto and the documents incorporated by reference therein (collectively, the
“Prospectus”), and any amendments or supplements thereto, used by the Company in connection with
the Offering shall be approved by the Company and shall be the property of the Company. The
Company will advise Xxxxxxxx promptly, after it receives notice, or otherwise becomes aware, of (i)
the issuance by the Commission or any other agency of any comment or order or the taking of any
other action concerning the Offering, including any stop order with respect to the registration
statement (and, if in writing, the Company will furnish you with a copy thereof. The Company
represents, warrants and covenants to Xxxxxxxx that: on the effective date and at the launch date
of the Offering and at the expiration time of the Offering, the Registration Statement did not and
will not contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements therein not misleading;
and on the date of any filing pursuant to Rule 424(b) promulgated by the Commission under the
Securities Act of 1933 in connection with the Offering and on the closing date of the Offering, the
Prospectus (together with any amendment or supplement thereto) will not include any 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.
Please note that in the ordinary course of business Xxxxxxxx and its affiliates at any time
may hold long or short positions, and may trade or otherwise effect transactions as principal or
for the accounts of customers, in debt or equity securities or options on securities of the Company
or any other party that may be involved in a financing transaction.
The Company agrees to indemnify and hold Xxxxxxxx harmless as provided in the indemnification
and contribution rider attached hereto as Exhibit A. This agreement and its Exhibits, including
(but not limited to) the indemnification and contribution exhibit, incorporate the entire
understanding of the parties with respect to this engagement of Xxxxxxxx by the Company and
supersede all previous agreements regarding such engagement, should any exist.
This agreement has been and is made solely for the benefit of Xxxxxxxx, the Company and the
persons, agents, employees, officers, directors and controlling persons referred to in the
indemnification and contribution exhibit and their respective successors, assigns and heirs, and no
other person shall acquire or have any right under or by virtue of this agreement. Xxxxxxxx shall
act as an independent contractor and shall be deemed not to be a fiduciary under this engagement
agreement. Any duties arising out of Xxxxxxxx’ engagement hereunder shall be owed solely to the
Company.
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CUSIP No. 000000000 |
If this letter correctly states our agreement, please so indicate by signing below and
returning a signed copy to us. Upon receipt of a signed copy of this letter, the terms of such
letter shall constitute a binding agreement between Xxxxxxxx and the Company.
| Very truly yours, XXXXXXXX INC. |
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| By: | /s/ Xxxxx X. Xxxxxx | |||
| EVP and General Counsel | ||||
ACCEPTED THIS 8th DAY OF NOVEMBER, 2010.
Conn’s, Inc.
By:
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/s/ Xxxxxxx X. Xxxxx
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Title:
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Executive Vice President | |||
| and Chief Financial Officer |
CUSIP No. |
000000000 |
Conn’s Inc.
November 8, 2010
November 8, 2010
EXHIBIT A
INDEMNIFICATION AND CONTRIBUTION
(a) The Company will indemnify and hold harmless Xxxxxxxx Inc. (“Xxxxxxxx”) and its
affiliates, and their respective officers, directors, advisors, representatives, agents, employees,
and each other person controlling Xxxxxxxx or any of its affiliates within the meaning of either
Section 15 of the Securities Act of 1933, as amended, or Section 20 of the Securities Exchange Act
of 1934, as amended (each such party, including Xxxxxxxx, an “Indemnified Person”), from and
against any and all losses, claims, damages and liabilities, joint or several (collectively,
“Damages”), related to or arising out of any matter referred to in the engagement letter to which
this Exhibit is appended (the “Agreement”), including an Indemnified Person’s services thereunder,
except to the extent such Damages are finally, judicially determined to have resulted directly and
primarily from the bad faith, gross negligence or willful misconduct of an Indemnified Person,
(b) The Company will also reimburse each Indemnified Person promptly upon request for all
expenses (including without limitation reasonable fees and disbursements of legal counsel, and
usual and customary expenses for an Indemnified Person’s involvement in discovery proceedings or
testimony) incurred in connection with any threatened or commenced inquiry, investigation, action
or legal, administrative or judicial proceeding (collectively, “Proceedings”), related to or
arising out of any matter referred to in the Agreement, including an Indemnified Person’s services
thereunder. The reimbursement obligations contained herein shall apply whether or not Xxxxxxxx or
any other Indemnified Person is a formal party to any Proceeding and are intended to cover, among
other things, reimbursement of expenses incurred for reviewing, investigating or responding to, or
otherwise in connection with, any claims, demands, allegations, discovery requests, depositions,
investigative testimony, hearings, arbitrations, trials, appeals or other proceedings related to or
arising out of any matter referred to in the Agreement, including an Indemnified Person’s services
thereunder. In the event that any reimbursed expenses are finally, judicially determined to have
resulted directly and primarily from such Indemnified Person’s bad faith, gross negligence or
willful misconduct in performing the services which are the subject of the Agreement, Xxxxxxxx
shall promptly refund to the Company the portion of amounts advanced under this Exhibit in respect
of reimbursement of expenses that is attributable to expenses incurred in relation to the act or
omission of such Indemnified Person who is the subject of such determination.
(c) The Company and Xxxxxxxx agree that if, for any reason, any indemnification or
reimbursement sought pursuant to this Exhibit is unavailable or is insufficient to hold any
Indemnified Person harmless, then, whether or not Xxxxxxxx is the person entitled to
indemnification, the Company and Xxxxxxxx shall each contribute to amounts paid or payable by the
Indemnified Person in respect of the Damages and expenses (including all legal and other fees and
expenses incurred in defending any action or claim) for which such indemnification or reimbursement
is unavailable or insufficient, in such proportion as is appropriate to reflect (i) the relative
benefits received (or anticipated to be received) by the Company and its stockholders, on the one
hand, and Xxxxxxxx, on the other, in connection with the transaction(s) contemplated in the
Agreement and (ii) such parties’ relative fault in connection with the matters as to which such
Damages related, as well as any relevant equitable considerations; provided that in no event shall
the amount to be contributed by Xxxxxxxx exceed the amount of fees actually received by Xxxxxxxx
under the Agreement (excluding any amounts received by Xxxxxxxx as reimbursement of expenses). It
is hereby agreed that the relative benefits to the Company and its stockholders, on the one hand,
and Xxxxxxxx, on the other hand, with respect to the Agreement shall be deemed to be in the same
proportion as (x) the total value
CUSIP No. |
000000000 |
paid, transferred, exchanged or received or proposed to be paid, transferred, exchanged or
received by the Company or its stockholders, as the case may be, in connection with any transaction
(whether or not consummated) bears to (y) the fee(s) paid or payable to Xxxxxxxx in connection with
the Agreement. The Company and Xxxxxxxx agree that it would not be just and equitable if
contribution pursuant to this clause (c) were determined by pro rata allocation or by any other
method which does not take into account the equitable considerations referred to herein.
(d) The Company also agrees that no Indemnified Person shall have any liability to the Company
for or in connection with the Agreement, except for liability for Damages which are finally,
judicially determined to have resulted directly and primarily from the bad faith, gross negligence
or willful misconduct of the Indemnified Person. In no event shall any Indemnified Person be
responsible for any indirect, special or consequential damages, even if the Indemnified Person is
advised of the possibility thereof.
(e) Promptly after receipt by an Indemnified Person under this paragraph (e) of notice of the
commencement of any Proceeding, such Indemnified Person will, if a claim in respect thereof is to
be made against the Company under this paragraph (e), notify the Company in writing of the
commencement thereof; but the failure so to notify the Company (i) will not relieve it from Damages
under paragraph (a) hereof unless and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the Company of substantial rights and defenses and (ii)
will not, in any event, relieve the Company from any obligations to any Indemnified Person other
than the indemnification obligation provided in paragraph (a).
(f) The Company will promptly notify an Indemnified Person of the assertion against the
Indemnified Person or any other person of any claim or the commencement of any inquiry,
investigation, action or proceeding, of which the Company has knowledge, relating to or arising out
of any matter referred to in the Agreement, including an Indemnified Person’s services under the
Agreement.
(g) The Company and Xxxxxxxx agree to consult in advance with one another with respect to the
terms of any proposed waiver, release or settlement of any Proceeding to which the Company or an
Indemnified Person may be subject as a result of the matters contemplated by the Agreement and
further agree not to enter into any such waiver, release or settlement without the prior written
consent of one another (which consent shall not be unreasonably withheld), unless such waiver,
release or settlement includes an unconditional release of the Company or such Indemnified Person,
as the case may be, from all liability arising out of such Proceeding.
(h) The agreements of the Company under this Annex shall be in addition to any liabilities the
Company may otherwise have, shall be binding upon and inure to the benefit of any successors,
assigns, heirs and personal representatives of the Company or an Indemnified Person, and shall
apply whether or not Xxxxxxxx or any other Indemnified Person is a formal party to any Proceeding.
The Company and Xxxxxxxx irrevocably agree to waive trial by jury in any action, proceeding, claim
or counterclaim brought by or on behalf of either party related to or arising out of this Exhibit,
the Agreement or the performance of services under this Agreement.
(i) The foregoing agreements shall apply to any modification or extension of the Agreement, and
shall remain in full force and effect following the termination of the Agreement, whether as a
result of the completion of services or otherwise.
