Exhibit 10.1
October 16, 2001
DEALER MANAGER AGREEMENT
Xxxxxxx Xxxxx & Company, L.L.C.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Dear Sirs:
MCSi, Inc., a Maryland corporation ("PARENT"), proposes to make an offer
to exchange shares of common stock, without par value (the "PARENT SHARES"), of
Parent for all of the outstanding shares of common stock, without par value (the
"SHARES"), that it does not own of Zengine, Inc., a Delaware corporation (the
"COMPANY"). Such exchange offer, as it may be amended or supplemented from time
to time, including any extension thereof, is hereinafter referred to as the
"EXCHANGE OFFER."
As soon as practicable on the date of commencement of the Exchange Offer,
Parent shall have filed with the Securities and Exchange Commission (the
"COMMISSION") a Registration Statement on Form S-4 (the "OFFER REGISTRATION
STATEMENT") to register the Parent Shares to be issued pursuant to the Exchange
Offer and the subsequent merger of the Company with and into Parent. The Offer
Registration Statement will include a preliminary prospectus (the "PRELIMINARY
PROSPECTUS") containing the information required under Rule 14d-4(b) promulgated
under the Securities Exchange Act of 1934 (as amended, and including the rules
and regulations thereunder, the "1934 ACT"). As soon as practicable on the date
of commencement of the Exchange Offer, Parent shall have filed with the
Commission a Tender Offer Statement on Schedule TO (as amended from time to
time, including the several exhibits thereto that will be identified therein,
the "SCHEDULE") with respect to the Exchange Offer, which will contain or
incorporate by reference all or part of the Preliminary Prospectus and the form
of the related Letter of Transmittal (the "LT"). The Schedule, the LT, the Offer
Registration Statement, the Preliminary Prospectus, all statements and other
documents filed or to be filed by or on behalf of the Company or Parent with any
federal or state regulatory authority relating to the Exchange Offer (including
without limitation the prospectus filed as part of the Offer Registration
Statement at the time of its effectiveness) and all other documents (including
press releases, advertisements and other communications, whether created or
released prior to or after the execution of this Agreement) as Parent or the
Company authorizes for use in connection with the solicitation of exchanges of
the Shares, as amended or supplemented from time to time, are each hereinafter
referred to as an "EXCHANGE OFFER DOCUMENT" and are collectively referred to as
the "EXCHANGE OFFER DOCUMENTS." The making of the Exchange Offer, the exchange
for the Shares pursuant thereto and all acts and transactions related or
incidental thereto or contemplated by the Preliminary Prospectus, including the
execution and delivery of this Agreement and the performance of the respective
parties' obligations hereunder, are hereinafter referred to collectively as the
"EXCHANGE OFFER TRANSACTIONS."
Parent and the Company have entered into an Agreement and Plan of
Reorganization (the "REORGANIZATION AGREEMENT"), dated as of October 4, 2001,
providing, among other things, for the making of the Exchange Offer and for a
subsequent merger of the Company with and into Parent (the "MERGER"), pursuant
to which each outstanding Share (other than Shares owned by Parent or any of its
subsidiaries, Shares held in the Company's treasury, and Shares held by
stockholders who perfect dissenters' rights under Delaware law) will be
converted into the right to receive a number of duly authorized, validly issued,
fully paid and non-assessable Parent Shares equal to the Exchange Ratio, as
defined in the Reorganization Agreement. All agreements (including, but not
limited to, the Reorganization Agreement) relating to the Merger and all other
statements and other documents to be filed with any federal or state regulatory
authority relating to the Merger and such other documents as the Company or
Parent authorizes for use in connection with the Merger are each hereinafter
referred to as a "MERGER DOCUMENT" and are collectively referred to as the
"MERGER DOCUMENTS." The Merger Documents, together with the Exchange Offer
Documents, are hereinafter collectively referred to as the "ACQUISITION
DOCUMENTS." The Exchange Offer Transactions and the Merger are hereinafter
collectively referred to as the "ACQUISITION."
1. Appointment, Fees and Expenses.
A. You are hereby appointed to act as sole Dealer Manager (you being
sometimes hereinafter referred to in that capacity as "DEALER
MANAGER") with respect to the Exchange Offer. You agree that
after you are advised by Parent of the commencement of the
Exchange Offer, you will use reasonable efforts as Dealer Manager
to solicit exchanges of Shares pursuant to the Exchange Offer and
to communicate with brokers, dealers, commercial banks and trust
companies (each a "DEALER") with respect to the Exchange Offer in
accordance with your customary practice. You and Parent agree
that in communicating with Dealers or soliciting or obtaining
exchanges, you shall not be deemed to be acting as the agent of
Parent or any of its affiliates and neither Parent nor any of its
affiliates shall be deemed to be acting as your agent. In
soliciting or obtaining exchanges, you shall not be deemed for
any purpose to act as a partner or joint venturer or a member of
a syndicate or group with Parent or any of its affiliates in
connection with the Exchange Offer, any exchange for the Shares
or otherwise. No Dealer is to be deemed to be acting as your
agent or as the agent of Parent, and you are not to be deemed the
agent of any Dealer. The Parent shall have sole authority for
the acceptance or rejection of any and all exchanges.
B. As compensation for your services as Dealer Manager, Parent
agrees to pay you as Dealer Manager a fee equal to $0.05 per
Share tendered, not withdrawn and accepted pursuant to the
Exchange Offer. The obligation of Parent to pay you the fees set
forth in this Agreement shall be in addition to, and not by way
of limitation of, any fees payable to you pursuant to the letter
agreement dated September 11, 2001 (the "ENGAGEMENT LETTER")
between Parent and you relating to the Acquisition.
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C. Without limiting the provisions of the Engagement Letter
regarding the reimbursement of expenses, Parent agrees to pay or
reimburse you as Dealer Manager and your affiliates and Dealers
and other nominees for all expenses incurred by any of them in
respect of (i) all expenses incurred in connection with the
preparation, printing, filing, mailing and publishing of all
documents pertaining to the Exchange Offer, including all
Exchange Offer Documents, (ii) all fees and expenses of the
Exchange Agent and the Information Agent referred to in the
Preliminary Prospectus paid by you, (iii) all advertising charges
in connection with the Exchange Offer and (iv) all other
reasonable and documented out-of-pocket expenses incurred by you
in connection with the Exchange Offer or your services as Dealer
Manager hereunder (including all reasonable and documented fees
and disbursements of counsel to be retained by you) (unless in
any such case such expenses have been charged to Parent in
accordance with the Engagement Letter). All payments to be made
by Parent pursuant to this paragraph C shall be made promptly
after receipt of an invoice from you.
D. Parent shall be liable for (i) the expenses set forth in Section
1.C. and for (ii) its indemnity obligations to you and the other
persons indemnified under Section 6 hereof, whether or not the
Exchange Offer is commenced or Parent or any of its affiliates
acquires any Shares pursuant to the Exchange Offer or otherwise,
regardless of whether you withdraw as Dealer Manager as permitted
hereunder (which withdrawal shall be without any liability or
penalty to you) and regardless of whether this Agreement is
eventually terminated.
2. COVENANTS OF PARENT. Parent hereby further agrees that:
A. Prior to and during the period of the Exchange Offer, except upon
reasonable prior notice to you and after giving reasonable
consideration to you and your counsel's comments, Parent will
not use, permit the use of or file with any governmental or
regulatory agency any Exchange Offer Document other than in, and
will make no amendments or supplements to or material changes in
or additions to any Acquisition Document from, the form last
furnished to you and to your counsel. In the event that Parent
uses or permits the use of or files with any governmental or
regulatory agency any material in contravention of the foregoing,
or in respect of which you or your counsel has made comments but
which comments have not resulted in a response satisfactory to
you and your counsel, you shall be entitled to withdraw as Dealer
Manager without any liability or penalty to you, and you shall
remain entitled to receive the payment of all fees (except as set
forth in the immediately following sentence) and expenses to
which you are entitled under this Agreement and the Engagement
Letter. If you withdraw as Dealer Manager for any reason under
this Agreement: (i) prior to the commencement of the tender
offer, you shall not be entitled to any fees; (ii) after the
commencement of the tender but before the expiration of the
tender offer, you shall be entitled only to fees relating to
Shares tendered prior to the date of your withdrawal and which
are subsequently accepted; (iii) after the expiration of the
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tender offer but before the effective date of the merger, you
shall be entitled only to fees relating to Shares tendered and
accepted by Parent; or (iv) after the effective date of the
merger, you shall be entitled to fees relating to all Shares
accepted by Parent. If you withdraw as Dealer Manager, the fees
accrued and reimbursement for your expenses through the date of
such withdrawal shall be paid to you promptly after receipt of an
invoice from you.
B. Prior to and during the period of the Exchange Offer, Parent will
advise you promptly after Parent receives notice or becomes aware
of (1) the happening of any event, or the discovery of any fact,
which it believes would require the making of any change in any
Exchange Offer Document then being used or would affect the truth
or correctness of any material statement, 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, (2) the happening of any
event which could cause Parent to withdraw, rescind or terminate
the Exchange Offer or would permit Parent to exercise any right
not to exchange Shares tendered thereunder, (3) any proposal or
requirement to amend or supplement any Exchange Offer Document or
any other filing required by the 1934 Act or to make any filing
pursuant to any other applicable law, (4) the issuance by the
Commission or any state or other federal authority of any formal
comment or order or the taking of any other action concerning the
Exchange Offer (and, if in writing, Parent will furnish you with
a copy thereof), (5) any material developments in connection with
the Exchange Offer or the registration of Parent Shares related
thereto, including, without limitation, the commencement of any
lawsuit concerning the Exchange Offer and (6) any other
information relating to the Exchange Offer that you may
reasonably request. Parent will file and disseminate, as
required, any and all necessary amendments to the Exchange Offer
Documents and will promptly furnish to you true and accurate
copies of each such amendment upon the filing thereof.
C. Parent agrees to furnish you with as many copies as you may
reasonably request of the final forms of the Exchange Offer
Documents and you are authorized to use copies of the final forms
of the Exchange Offer Documents. Parent will cause you to be
provided with any cards or lists they may receive from the
Company showing the names and addresses of, and the number of
Shares held by, the holders of Shares as of a recent date and
will endeavor to cause you to be advised from day to day during
the period of the Exchange Offer as to any transfers of record of
the Shares known to Parent. Parent has appointed, and authorizes
you to communicate with, Registrar and Transfer Company, in its
capacity as Exchange Agent, and MacKenzie Partners, Inc., in its
capacity as Information Agent, in connection with the Exchange
Offer and has instructed the Exchange Agent to advise you at
least daily as to such matters as you may reasonably request.
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3. CONDITIONS TO YOUR OBLIGATIONS. Your obligations hereunder shall at
all times be subject to the following conditions:
A. All representations, warranties and other statements of Parent
contained herein are now, and at all times during the period of the
Acquisition shall be, true and correct in all material respects, and
Parent at all times until consummation of the Acquisition shall have
performed all of its obligations hereunder theretofore to be
performed. You shall have a reasonable period of time after
discovering or being informed of a breach of the condition in the
preceding sentence to elect whether to continue as Dealer Manager.
B. No stop order, restraining order or denial of an application for
approval shall have been issued and no litigation relating to the
Exchange Offer, the Exchange Offer Documents, the Merger (except
for appraisal proceedings under Delaware law), the Merger
Documents or this Agreement shall have been commenced or
threatened by or before any agency, court or other governmental
or regulatory body of any jurisdiction which you, in good faith
after consultation with Parent, believe makes it inadvisable for
you to continue to act as Dealer Manager.
4. REPRESENTATION, WARRANTIES AND AGREEMENT OF PARENT. Parent hereby
represents, warrants and agrees as follows:
A. No Exchange Offer Document contains or will contain any untrue
statement of any material fact or omits or will omit any material
fact required to be stated therein or necessary in order to make
the statements made therein, in light of the circumstances under
which they are made, not misleading, provided that the foregoing
representation and warranty as it relates to statements or
omissions concerning the Company is limited to the knowledge of
Parent, and provided further that Parent is not making any
representation or warranty with respect to any statements
contained in, or any matter omitted from, the Exchange Offer
Documents in reliance upon and in conformity with written
information furnished to Parent by you or on your behalf
expressly for use therein.
B. The Exchange Offer Transactions do not and will not violate the
Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder (the "1933 ACT"), the 1934 Act, or any
other statute, regulation or other law of the United States or of
any state or other jurisdiction thereof or any judgments, orders
or decrees applicable to Parent or any affiliate thereof relating
to the Exchange Offer Documents or the Exchange Offer, and Parent
has complied, and will continue to comply, in all material
respects, with the 1933 Act, the 1934 Act and all other statutes,
regulations and other laws (including, if applicable, Regulations
U, T, G and X promulgated by the Federal Reserve Board) of the
United States and any state or other jurisdiction thereof or any
judgments, orders or decrees applicable to Parent or any
affiliate thereof relating to the Exchange Offer Documents or the
Acquisition. All consents, approvals, authorizations, permits,
filings or notifications of, to or with any governmental or
regulatory authority
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required to be obtained or made in connection with the
consummation by Parent of the Exchange Offer Transactions will
have been obtained or made, and all statutory or regulatory
waiting periods will have elapsed, prior to the exchange for the
Shares under the Exchange Offer and, in connection with the
consummation by Parent of the Merger, will have been obtained or
elapsed prior to the consummation of the Merger.
C. Parent is a corporation duly incorporated, validly existing and
in good standing under the laws of Maryland. Parent has all
necessary corporate power and authority to transact all business
conducted by it, to enter into the Agreement and perform its
respective obligations hereunder and to effect and consummate the
Exchange Offer Transactions. The execution and delivery of this
Agreement, and the performance by Parent of its obligations under
this Agreement and in connection with the Exchange Offer
Transactions, have been validly authorized by all necessary
corporate action on the part of Parent and, to the extent
applicable, any affiliate thereof. This Agreement and the
Reorganization Agreement have been validly executed and delivered
by Parent, and, assuming the due authorization, execution and
delivery hereof by Dealer Manager, are legal and binding
obligations of Parent, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally, and subject, as to enforceability,
to general principals of equity, including principles of
commercial reasonableness, good faith and fair dealing
(regardless of whether enforcement is sought in a proceeding at
law or in equity).
D. Upon commencement of the Exchange Offer, Parent will file with the
Commission the Schedule pursuant to Rule 14d-3 promulgated by the
Commission under the 1934 Act, a copy of which Schedule (including
the documents required by Item 12 thereof to be filed as exhibits
thereto), in the form in which it is to be so filed, will be
furnished to you promptly upon the filing thereof.
E. The Schedule and other Exchange Offer Documents, as so filed,
will comply in all materials respects with the provisions of the
1934 Act.
F. Except as set forth in the Preliminary Prospectus, Parent has no
knowledge of any material fact or information concerning Parent
or any of its subsidiaries, or the operations, assets, conditions
(financial or otherwise), or prospects of Parent or any of its
subsidiaries, which under applicable law is required to be
disclosed in the Preliminary Prospectus and which has not been,
is not being, or will not be, so disclosed in the Preliminary
Prospectus.
G. The Exchange Offer Transactions and the execution and delivery
of, and the consummation of the transactions contemplated in,
this Agreement do not and will not (i) conflict with or violate
the charter or by-laws of Parent, (ii) conflict
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with or violate any order, judgment or decree applicable to
Parent or by which any property or asset of Parent is bound, or
(iii) result in a breach of or constitute a default (or an event
which with notice or lapse of time or both would become a
default) under, or give to others any right of termination,
amendment, acceleration or cancellation of any loan or credit
agreement, indenture, mortgage, note or other agreement or
instrument to which Parent, or any of its subsidiaries or
affiliates, is a party or by which any of them or any of their
respective properties or assets is bound.
H. Parent is not, nor will be as a result of the consummation of the
Exchange Offer, an "investment company" under the Investment Company
Act of 1940, as amended, and the rules and regulations promulgated
by the Commission thereunder.
I. Except as expressly disclosed in the Preliminary Prospectus, no
authorization, approval, order, exemption or other action of the
Commission or any other regulatory, administrative or other
governmental or public body or court of the United States or of
any state or other jurisdiction thereof is required in connection
with the Acquisition, and no stop order, restraining order or
denial of any application for approval has been issued or
proceedings, litigation or investigation initiated or, to the
best of Parent's knowledge, threatened, with respect to the
Acquisition before the Commission or any other regulatory,
administrative or other governmental or public body or any court.
J. On the date of commencement of the Exchange Offer, Parent will
have registered, or arranged to register, sufficient available
Parent Shares, and will have authority to use such Parent Shares
under applicable law, to exchange for all Shares properly
tendered pursuant to the Exchange Offer, in accordance with the
terms and subject to the conditions of the Exchange Offer, and
Parent hereby agrees to exchange such Parent Shares for all
properly tendered Shares promptly, in accordance with the terms
and subject to the conditions of the Acquisition Documents.
Parent has, or has arranged to obtain, sufficient available
funds, and has authority to use such funds under applicable law,
to pay, in accordance with the terms and subject to the
conditions of the Exchange Offer, any and all fees and expenses
for which Parent is responsible under the Acquisition Documents.
5. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE DEALER MANAGER. As
Dealer Manager, you hereby represent, warrant and agree a follows:
A. You are a limited liability company duly organized, validly
existing and in good standing under the laws of Delaware and have
all necessary limited liability company power and authority to
transact all business conducted by you and to enter into this
Agreement and perform your obligations hereunder; and the
execution and delivery of, and the performance by you of your
obligations under,
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this Agreement have been duly and validly authorized by all
necessary limited liability company action.
B. You will not disseminate to customers or Dealers any written
material for, or in connection with, the Exchange Offer other than
one or more of the Exchange Offer Documents.
C. Your acceptance of this Agreement has been duly executed and
delivered and, assuming due authorization, execution and delivery of
this Agreement by Parent, this Agreement constitutes your valid and
legally binding Agreement, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally
and equitable principles limiting the right to obtain specific
performance or other similar equitable relief.
6. Indemnification and Contribution.
A. Without limiting or duplicating the terms and provisions of the
indemnification agreement entered into in connection with the
Engagement Letter, Parent agrees to indemnify and hold harmless
you and your affiliates, the respective principals, directors,
officers, agents and employees of you and your affiliates and
each other person, if any, controlling you or any of your
affiliates, any Dealer and each of your respective successors and
assigns, (collectively, the "INDEMNIFIED PERSONS"), to the full
extent lawful, from and against all losses, claims, damages,
liabilities and expenses incurred by them which are related to or
arise out of (1) any untrue statement or alleged untrue statement
of any material fact in any Exchange Offer Document, (2) any
omission or alleged omission to state any material fact required
to be stated in any Exchange Offer Document or necessary to make
the statements in any Exchange Offer Document, in the light of
the circumstances under which they were made, not misleading, (3)
any breach or alleged breach by Parent of its representations,
warranties and agreements contained in this Agreement or any
Exchange Offer Document, to the extent applicable, (4) any
failure to commence or any withdrawal, termination or
cancellation of, the Acquisition and any failure to exchange any
Shares properly tendered under the Exchange Offer for any reason
whatsoever, or (5) in any other respect, the Exchange Offer or
your engagement hereunder or in connection therewith. Parent
shall not, however, be obligated to indemnify any such
Indemnified Person under this Section 6 in any such case (x) to
the extent, and only to the extent, that any such loss, claim,
damage, liability or expense is attributable to claims arising
out of, or based upon, any untrue statement of any material fact
in any Exchange Offer Document or any omission to state any
material fact required to be stated in any Exchange Offer
Document, or necessary to make the statements made therein, in
light of the circumstances under which they were made, not
misleading, if, in any such case, such statement or omission was
made in any Exchange Offer Document in reliance upon and in
conformity with written information prepared by you or any
Indemnified Person or on your behalf or on behalf of any
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Indemnified Person and furnished by you or any Indemnified Person
or on your behalf or on behalf of any Indemnified Person to
Parent specifically for inclusion in such Exchange Offer
Document, and (y) in the case of a claim for indemnity under
clause (5) above, with respect to any claim, loss, damage,
expense or liability that arises primarily out of, or is based
primarily upon, any action, or failure to take action, by you or
any Indemnified Person (other than any action, or failure to take
action, at the request or with the consent of, or in conformity
with actions taken or omitted to be taken by, Parent) that is
finally judicially determined to have resulted primarily from the
(i) knowing and willful violation of applicable law, regulation
or rule of the National Association of Securities Dealers, Inc.
or the Nasdaq Stock Market, (ii) gross negligence or (iii)
willful misconduct, of such Indemnified Person. No Indemnified
Person shall have any liability to Parent for or in connection
with your engagement hereunder except for such liability for
losses, claims, damages, liabilities or expenses incurred by
Parent for or in connection with your engagement hereunder which
is finally judicially determined to have resulted primarily from
the (i) knowing and willful violation of applicable law,
regulation or rule of the National Association of Securities
Dealers, Inc. or the Nasdaq Stock Market, (ii) gross negligence
or (iii) willful misconduct, of such Indemnified Person.
B. After receipt by an Indemnified Person of notice of any complaint
or the commencement of any action or proceeding with respect to
which indemnification is being sought hereunder, such Indemnified
Person will promptly notify us in writing of such complaint or of
the commencement of such action or proceeding, but failure to so
notify us will relieve us from any liability which we may have
hereunder only if, and to the extent that, such failure results
in the forfeiture by us of substantial rights and defenses, and
will not in any event relieve us from any other obligation or
liability that we may have to any Indemnified Person otherwise
than under this Agreement. If we so elect or are requested by
such Indemnified Person, we will assume the defense of such
action or proceeding, including the employment of counsel
reasonably satisfactory to you and the payment of the fees and
disbursements of such counsel. In the event, however, such
Indemnified Person reasonably determines in its judgment (after
consultation with counsel) that having common counsel would
present such counsel with a conflict of interest or if the
defendants in, or targets of, any such action or proceeding
include both an Indemnified Person and Parent, and such
Indemnified Person reasonably concludes (after consultation with
counsel) that there may be legal defenses available to it or
other Indemnified Persons that are different from or in addition
to those available to Parent, or if we fail to assume the defense
of the action or proceeding or to employ counsel reasonably
satisfactory to such Indemnified Person, in either case in a
timely manner, then such Indemnified Person may employ separate
counsel to represent or defend it in any such action or
proceeding and Parent will pay the reasonable and documented fees
and disbursements of such counsel; provided, however, that we
will not be required to
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pay the fees, disbursements and costs of more than one separate
counsel (in addition to any local counsel) for all Indemnified
Persons in any jurisdiction in any single action or proceeding.
In any action or proceeding the defense of which we assume, the
Indemnified Person will have the right to participate in such
litigation and to retain its own counsel at such Indemnified
Person's own expense. Parent further agrees that we will not,
without your prior written consent, settle or compromise or
consent to the entry of any judgment in any pending or threatened
claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether
or not you or any Indemnified Person is an actual or potential
party to such claim, action, suit or proceeding) unless such
settlement, compromise or consent includes an unconditional
release of you and each other applicable Indemnified Person
hereunder from all liability arising out of such claim, action
suit or proceeding. Parent shall not be liable for any
settlement of any litigation or proceeding effected without the
written consent of Parent, which consent shall not be
unreasonably withheld, but if settled with such consent or if
there be a final judgment for the plaintiff, Parent agrees,
subject to the provisions of this Section 6, to indemnify the
Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Parent agrees to notify
you promptly of the assertion of any claim in connection with the
Acquisition against any of its officers or directors or any
person who controls Parent within the meaning of Section 20(a) of
the 1934 Act.
C. Parent agrees that if any indemnification sought by an
Indemnified Person pursuant to this Agreement is held by a court
to be unavailable for any reason other than as specified in the
second sentence of paragraph A of this Section 6, then (whether
or not you are the Indemnified Person), Parent and the
Indemnified Person will contribute to the losses, claims,
damages, liabilities and expenses for which such indemnification
is held unavailable in such proportion as is appropriate to
reflect the relative fault of Parent, on the one hand, and of the
Indemnified Person, on the other hand, as well as any other
relevant equitable considerations; provided, however, that in any
event, the aggregate contribution of all Indemnified Persons,
including you, to all losses, claims, damages, liabilities and
expenses with respect to which contribution is available
hereunder will not exceed the amount of fees actually received by
you from us pursuant to your engagement hereunder. It is hereby
agreed that for purposes of this paragraph C that it would not be
just and equitable if contribution pursuant to this Section 6
were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable
considerations referred to in this paragraph.
D. Parent hereby agrees to reimburse you and any other Indemnified
Person hereunder for all expenses (including reasonable and
documented fees and disbursements of counsel), from time to time,
as they are incurred by you or such other Indemnified Person in
connection with investigating, preparing for or defending, or
providing evidence in, any pending or threatened action, claim,
suit
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or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not you or any other
Indemnified Person is a party) and in enforcing this Agreement
(unless and until it is finally judicially determined that Parent
is not liable hereunder for such expenses).
E. Parent's indemnity, contribution, reimbursement and other
obligations under this Agreement shall be in addition to any
liability that Parent may otherwise have, at common law or
otherwise. Solely for purposes of enforcing this Agreement, we
hereby consent to personal jurisdiction, service and venue in any
court in which any claim or proceeding which is subject to, or
which may give rise to a claim for indemnification or
contribution under, this Agreement is brought against you or any
other Indemnified Person.
7. Miscellaneous.
A. This Agreement has been, and is, made solely for the benefit of
you, Parent, the other indemnified persons referred to in Section
6 hereof and your and their respective successors, assigns,
executors and administrators, and no other person shall acquire
or have any right under, or by virtue of, this Agreement. You
shall not have any liability or obligation to Parent for any act
or omission of any Dealer or person employed by Parent, and,
except as otherwise set forth herein, you undertake no obligation
to Parent other than for the performance of your express
representations, warranties and agreements hereunder.
B. The representations, warranties, agreements and indemnities of
Parent contained in this Agreement shall remain in full force and
effect regardless of any investigation made by or on behalf of
you or Parent, whether or not such investigation, if diligently
made, would have disclosed facts upon which any breach of
representation, warranty or agreement is or may be based or
indemnification sought, and shall survive the exchange by Parent
(or any affiliate of Parent) for Shares pursuant to the Exchange
Offer and the consummation of the Acquisition, any withdrawal,
termination or cancellation of, or failure to commence, the
Exchange Offer (whether or not Shares are exchanged or this
Agreement is eventually terminated) or the Merger for any reason
whatsoever, and any withdrawal by you as Dealer Manager and
financial advisor pursuant to any provision of this Agreement, in
each such case until a period of three (3) years after the
expiration of the applicable statute of limitations (it being
agreed and understood that the aforementioned expiration shall
have no effect whatsoever on any indemnification claim made to
Parent prior to such expiration).
C. This Agreement shall be deemed made in Illinois. This Agreement
and all controversies arising from or relating to performance
under this Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois, without giving
effect to Illinois' rules concerning conflicts of laws. Solely
for purposes of enforcing this Agreement, each of the parties
hereto hereby
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(i) irrevocably consents to personal jurisdiction and venue in
any court in Xxxx County, Illinois or any Federal court sitting
in the Northern District of Illinois for the purposes of any
suit, action or other proceeding arising out of this Agreement or
any of the agreements or transactions contemplated hereby, which
is brought by or against such parties, (ii) agree that all claims
in respect of any such suit, action or proceeding may be heard
and determined in any such court, (iii) waive the defense of an
inconvenient forum and (iv) 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 provide by law. Each of the parties hereto hereby
irrevocably consents to the service of process of any of the
aforementioned courts in any such suit, action or proceeding by
the mailing of copies thereof by registered or certified mail,
postage prepaid, to such party at its address set forth in
paragraph E of this Section 7, such service to become effective
ten (10) days after such mailing. ANY RIGHT TO TRIAL BY JURY WITH
RESPECT TO ANY CLAIM OR ACTION ARISING OUT OF THIS AGREEMENT OR
CONDUCT IN CONNECTION HEREWITH IS HEREBY WAIVED.
D. So long as the economic or legal substance of the Exchange Offer
and the agreements contained herein are not affected in any
manner adverse to you, any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such
invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of
the terms or provisions of this Agreement in any other
jurisdiction.
E. All notices and other communications required or permitted to be
given under this Agreement shall be in writing and shall be
deemed to have been duly given if delivered in person, by
facsimile or by registered or certified mail (postage prepaid;
return receipt requested) to the parties hereto as follows (or,
as to each party, at such other address as shall be designated by
such party in a written notice complying as to delivery with the
terms of this paragraph):
(a) if to Dealer Manager:
Xxxxxxx Xxxxx & Company, L.L.C.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx or Xxxxx X. Xxxxxxx
With a copy to (which shall not constitute notice):
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Sidley Xxxxxx Xxxxx & Xxxx
Bank Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
(b) if to Parent:
MCSi, Inc.
0000 Xxxxxxxxx Xxxxxxx Xxxxx
Xxxxxx, Xxxx 00000
Telephone: (000) 000-0000
Facsimile.: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
With a copy to (which shall not constitute notice):
Elias, Matz, Xxxxxxx & Xxxxxxx LLP
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
All notices and other communications shall be deemed to have been
duly given on (i) the date of delivery if delivered personally, (ii)
five (5) days following posting if transmitted by mail or (iii) the
date of transmission if sent by facsimile with telephone
confirmation of receipt, whichever shall first occur.
F. The descriptive headings contained in this Agreement are included
for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
G. This Agreement, together with the Engagement Letter and the
indemnification agreement entered into in connection therewith,
constitutes the entire agreement among the parties hereto with
respect to the subject matter hereof and supersedes all prior
agreements and undertakings, both written and oral, among the
parities, or any of them, with respect to the subject matter hereof.
H. This Agreement may not be amended except in writing signed by
each party to be bound thereby.
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I. This Agreement may be executed in counterparts, each of which
together shall be considered a single document. This Agreement shall
be binding upon the Dealer Manager and Parent and their respective
successors and assigns.
Very truly yours,
MCSi, Inc.
By: /s/ XXX X. XXXXXXX
-------------------------------------------------
Name: Xxx X. Xxxxxxx
Title: Vice President -- Chief Financial Officer
Accepted and agreed as of the date first above written:
XXXXXXX XXXXX & COMPANY, L.L.C.
By /s/ XXXX XXXXX
----------------------------------
Name: Xxxx Xxxxx
Title: Principal
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