Exhibit (a)(1)(P)
[LETTERHEAD OF XXXXXXXXX SHAREHOLDER]
February 17, 2005
White Bay Capital Management LLC
c/o Costa Brava Partnership III, L.P.
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Re: Letter of Agreement
-------------------
Gentlemen:
This Letter of Agreement, including the Appendix attached hereto (collectively,
this "Agreement"), sets forth the terms and conditions of the engagement of
Xxxxxxxxx Shareholder Communications Inc. ("GSC") by White Bay Capital
Management LLC (the "Company") to act as Information Agent in connection with
its tender offer (the "Offer"). The term of the Agreement shall be the term of
the Offer, including any extensions thereof.
(a) Services. GSC shall perform the services described in the Fees &
Services Schedule attached hereto as Appendix I (collectively, the
"Services").
(b) Fees. In consideration of GSC's performance of the Services, the
Company shall pay GSC the amounts, and pursuant to the terms, set
forth on the Fees & Services Schedule attached hereto as Appendix I.
(c) Expenses. In connection with GSC's performance of the Services, and in
addition to the fees and charges discussed in paragraphs (b) and (d)
hereof, the Company agrees that it shall be solely responsible for the
following costs and expenses, and that the Company shall, at GSC's
sole discretion, (i) reimburse GSC for such costs and expenses
actually incurred by GSC, (ii) pay such costs and expenses directly
and/or (iii) advance sufficient funds to GSC for payment of such costs
and expenses:
o expenses incidental to the Offer, including postage and freight
charges incurred in delivering Offer materials;
o expenses incurred by GSC in working with its agents or other
parties involved in the Offer, including charges for bank
threshold lists, data processing, telephone directory assistance,
facsimile transmissions or other forms of electronic
communication;
o expenses incurred by GSC at the Company's request or for the
Company's convenience, including copying expenses, expenses
White Bay Capital Management LLC
February 17, 2005
Page 2
relating to the printing of additional and/or supplemental
material and travel expenses of GSC's executives;
o any other fees and expenses authorized by the Company and
resulting from extraordinary contingencies which arise during the
course of the Offer, including fees and expenses for advertising
(including production and posting), media relations, stock watch
and analytical services.
(d) Custodial Charges. GSC agrees to check, itemize and pay on the
Company's behalf the charges of brokers and banks, with the exception
of ADP Proxy Services and Prudential Securities which will bill the
Company directly, for forwarding the Company's offering material to
beneficial owners. The Company agrees to provide GSC, prior to the
commencement of the initial distribution of offering materials to such
brokers and banks, with a preliminary payment equal to 75% of GSC's
good faith estimate of the charges which shall be assessed by such
brokers and banks for two distributions of such materials. The Company
shall pay GSC an administrative fee of five dollars ($5.00) for each
broker and bank invoice paid by GSC on the Company's behalf. If the
Company prefers to pay these bills directly, please strike out and
initial this clause before returning the executed Agreement.
(e) Compliance with Applicable Laws. The Company and GSC hereby represent
to one another that each shall use its best efforts to comply with all
applicable laws relating to the Offer, including, without limitation,
the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
(f) Indemnification. The Company agrees to indemnify and hold harmless GSC
and its stockholders, officers, directors, employees, agents and
affiliates against any and all claims, costs, damages, liabilities,
judgments and expenses, including the fees, costs and expenses of
counsel retained by GSC, which result from claims, actions, suits,
subpoenas, demands or other proceedings brought against or involving
GSC which directly relate to or arise out of GSC's performance of the
Services (except for costs, damages, liabilities, judgments or
expenses which shall have been determined by a court of law pursuant
to a final and nonappealable judgment to have directly resulted from
GSC's gross negligence or intentional misconduct). In addition, the
prevailing party shall be entitled to reasonable attorneys' fees and
court costs in any action between the parties to enforce the
provisions of this Agreement, including the indemnification rights
contained in this paragraph. The indemnity obligations set forth in
this paragraph shall survive the termination of this Agreement.
White Bay Capital Management LLC
February 17, 2005
Page 3
(g) Governing Law. This Agreement shall be governed by the substantive
laws of the State of New York without regard to its principles of
conflicts of laws, and shall not be modified in any way, unless
pursuant to a written agreement which has been executed by each of the
parties hereto. The parties agree that any and all disputes,
controversies or claims arising out of or relating to this Agreement
(including any breach hereof) shall be subject to the jurisdiction of
the federal and state courts in New York County, New York and the
parties hereby waive any defenses on the grounds of lack of personal
jurisdiction of such courts, improper venue or forum non conveniens.
(h) Exclusivity. The Company agrees and acknowledges that GSC shall be the
sole Information Agent retained by the Company in connection with the
Offer, and that the Company shall refrain from engaging any other
Information Agent to render any Services, in a consultative capacity
or otherwise, in relation to the Offer.
(i) Additional Services. In addition to the Services, the Company may from
time to time request that GSC provide it with certain additional
consulting or other services. The Company agrees that GSC's provision
of such additional services shall be governed by the terms of a
separate agreement to be entered into by the parties at such time or
times, and that the fees charged in connection therewith shall be at
GSC's then-current rates.
(j) Confidentiality. GSC agrees to preserve the confidentiality of (i) all
material non-public information provided by the Company or its agents
for GSC's use in fulfilling its obligations hereunder and (ii) any
information developed by GSC based upon such material non-public
information (collectively, "Confidential Information"). For purposes
of this Agreement, Confidential Information shall not be deemed to
include any information which (w) is or becomes generally available to
the public in accordance with law other than as a result of a
disclosure by GSC or any of its officers, directors, employees, agents
or affiliates; (x) was available to GSC on a nonconfidential basis and
in accordance with law prior to its disclosure to GSC by the Company;
(y) becomes available to GSC on a nonconfidential basis and in
accordance with law from a person other than the Company or any of its
officers, directors, employees, agents or affiliates who is not
otherwise bound by a confidentiality agreement with the Company or is
not otherwise prohibited from transmitting such information to a third
party; or (z) was independently and lawfully developed by GSC based on
information described in clauses (w), (x) or (y) of this paragraph.
The
White Bay Capital Management LLC
February 17, 2005
Page 4
Company agrees that all reports, documents and other work product
provided to the Company by GSC pursuant to the terms of this Agreement
are for the exclusive use of the Company and may not be disclosed to
any other person or entity without the prior written consent of GSC.
The confidentiality obligations set forth in this paragraph shall
survive the termination of this Agreement.
(k) Entire Agreement; Appendix. This Agreement constitutes the entire
agreement and supersedes all prior agreements and understandings, both
written and oral, among the parties hereto with respect to the subject
matter hereof. The Appendix to this Agreement shall be deemed to be
incorporated herein by reference as if fully set forth herein. This
Agreement shall be binding upon all successors to the Company (by
operation of law or otherwise).
If the above is agreed to by you, please execute and return the enclosed
duplicate of this Agreement to Xxxxxxxxx Shareholder Communications Inc.,
00 Xxxxx Xxxxxx - 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx
Xxxx, Contract Administrator.
Sincerely,
XXXXXXXXX SHAREHOLDER
COMMUNICATIONS INC.
By: /s/ XXXXXX X. XXXXXX
------------------------------
Xxxxxx X. Xxxxxx
Title: Senior Managing Director
---------------------------
Agreed to and accepted as of
the date first set forth above:
WHITE BAY CAPITAL MANAGEMENT LLC
By: /s/ XXXXXX XXXXXX
-----------------------
Title: Managing Member
-----------------------
APPENDIX I
----------
FEES & SERVICES SCHEDULE
------------------------
BASE SERVICES $30,000.00
------------- ------------
o Advance review of Offer documents
o Strategic advice relating to the Offer
o Assistance in preparation of advertisements and news
releases
o Dissemination of Offer documents to bank and broker
community
o Communication with bank and broker community during
Offer period
ADDITIONAL SERVICES
-------------------
o Direct telephone communication with retail (i.e., TBD
registered and NOBO shareholders) ------------
o $5.00 per telephone calls (inbound and
outbound)
DEPOSITORY SERVICES
-------------------
o Acceptance fee $8,000.00
------------
ADDITIONAL SERVICES
-------------------
o Examining and processing Letters of Transmittal $12.00
and accompanying securities, each ------------
o Items requiring additional handling (legal items, $12.00
option items, correspondence items, partial ------------
tenders, window items, and items not providing a
taxpayer identification number), each
o Guarantee items and Withdrawal items, each $12.00
------------
o Preparing and filing Form 1099B with tendering $1.00
stockholder and appropriate government agencies, ------------
each
o Backup withholding of purchase price as tax, where Waived
applicable, each ------------
o Calculating pro-rata items, each (if applicable) N/A
------------
o Midnight Expirations, each $3,000.00
------------
o Extensions of Offer, each $3,000.00
------------
o Special services By Appraisal
------------
--------------------------------------------------------------------------------
NOTE: The foregoing fees are exclusive of reimbursable expenses and custodial
charges as described in paragraphs (c) and (d) of this Agreement. In addition,
the Company will be charged a fee of $1,000 if the Offer is extended for any
reason.
--------------------------------------------------------------------------------
FEE PAYMENT INSTRUCTIONS
------------------------
The Company shall pay GSC as follows:
o Upon execution of this Agreement, the Company shall pay GSC $38,000, which
amount is in consideration of GSC's commitment to represent the Company and
is non-refundable;
o If applicable, immediately prior to the commencement of the mailing, the
Company shall advance to GSC a portion of anticipated custodial charges;
and
o Upon completion of the Offer, the Company shall pay GSC the sum of (i) any
variable fees for Additional Services (e.g., telephone calls) which shall
have accrued over the course of the Offer, (ii) the Success Fee, if earned
and (iv) all reimbursable expenses.
GSC will send the Company an invoice for each of the foregoing payments.
--------------------------------------------------------------------------------
