EXHIBIT 99.4
X. X. XXXX & CO., INC.
00 XXXXX XXXXXX, XXX XXXX, X.X. 00000
(000) 000-0000
July 6, 1998
Xx. Xxxxxxx X. Xxxxxxx
Chief Financial Officer
Xxxxxxx Financial Corp.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Dear Rich:
This Letter Agreement sets forth the terms and conditions pursuant to
which Xxxxxxx Financial Corp. (the "Company") has retained X.X. Xxxx & Co., Inc.
("King") in connection with a proposed rights offering.
The Company proposes to distribute transferable subscription rights
(the "Rights") to subscribe for and purchase additional shares of Common Stock
of the Company (the "Street"). The offer to subscribe for and purchase Common
Stock pursuant to the exercise of Rights is herein referred to as the "Rights
Offering."
1. The Company hereby retains King as Information Agent for advisory and
consulting services in connection with the Rights Offering and requests
and authorizes King to contact, and to provide information with respect
to the Rights Offering to, holders of the Common Stock including
delivery of material to banks, brokers and nominees, receiving calls
from shareholders and telephoning holders of record and non-objecting
beneficial owners. For this purpose, King is authorized to use, and
will be supplied by the Company with as many copies as King is
authorized to use, and will be supplied by the Company with as many
copies as King may reasonably request of, the following materials filed
with the Securities and Exchange Commission (the "Commission") or
publicly released (or to be filed or publicly released) by the Company
in connection with the rights Offering ("collectively, the "Rights
Offering Materials"): (i) Prospectus; (ii) Subscription Certificate;
(iii) press releases and newspaper advertisements; (iv) letter to
securities dealers, banks and trust companies, and letter from
securities dealers, banks and trust companies to their customers; (v)
Notice of Guaranteed Delivery, (vi) DTC Participation Oversubscription
Exercise form and (vii) any and all amendments or supplements to any of
the foregoing.
2. The Company agrees to pay king as compensation for its services a fee
of $3,500, which is due upon the completion, expiration or termination,
as the case may be, of the Rights Offering. In the event the Company
extends the term of the Rights
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Xxxxxxx Financial Corp.
July 6, 1998
Page 2
Offering, the Company agrees to pay King an additional fee of $1,000
for each such extension. Further, the Company agrees to pay King $3.00
for each completed telephone contact (incoming or outgoing) in
connection with the Rights Offering which shall include labor,
directory assistance and all related telephone expenses provided that
the Company shall approve in advance the number of shareholders who
will receive outgoing calls after consultation with you. In the event
the Company requests King to provide additional services, the Company
agrees to pay King reasonable and customary compensation, in an amount,
if any, to be mutually agreed upon. The Company further agrees to
reimburse King for all reasonable out-of-pocket expenses (including
reasonable counsel's fees and disbursements) incurred by King in
connection with its retention hereunder. The Company agrees and
acknowledges that its obligation under this paragraph 2 is not in any
way conditional upon the successful consummation of the Rights Offering
or dependent upon the amount of Common Stock sold by the Company
pursuant to the Rights Offering.
3. The Company agrees that King shall have the right to pass upon and
approve any and all references to King in the Rights Offering
Materials. The Company shall not file with the Commission, any other
governmental or regulatory authority or body or any court, or otherwise
make public, any document containing any reference to King unless and
until King shall have approved such reference.
4. The Company represents and warrants to King that:
(i) this Letter Agreement is a valid and binding agreement on the
Company's part;
(ii) all necessary corporate action will be duly taken by the
Company prior to the commencement of the Rights Offering to
authorize the Rights Offering, and the purchase of Common
Stock in connection with the Rights Offering;
(iii) all Rights Offering Materials will comply, in all material
respects, with the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder, and none
of the Rights Offering Materials, and no other report, filing,
document, release or communication published or filed by the
Company in connection with the Rights Offering, will contain
any untrue or misleading statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements made therein not misleading;
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Xxxxxxx Financial Corp.
July 6, 1998
Page 3
(iv) the Rights Offering, and the issuance and sale of Common Stock
in connection with the Rights Offering, will comply, in all
material respects, with all applicable requirements of law
including the applicable rules or regulations of any
governmental or regulatory authority or body, and no material
consent or approval of, or filing with, any governmental or
regulatory authority or body (other than any required filings
under the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder) is
required in connection with the making or consummation of the
Rights Offering (or, if any such material consent, approval or
filing is required it will be duly obtained or made prior to
the commencement of the Rights Offering); and
(v) the Rights Offering and the issuance and sale of Common Stock
in connection with the Rights Offering, and/or execution,
delivery and performance of this Letter Agreement, will not
conflict with or result in a breach of or constitute a default
under the Company's certificate of incorporation or by-laws,
or any material agreement, indenture mortgage, note or other
instrument by which the Company is bound.
5. The Company will advise King promptly of the occurrence of any event
which would cause it not to proceed with, or to withdraw or abandon,
the Rights Offering. The Company will also advise King promptly of any
proposal or requirement to amend or supplement any of the Rights
Offering Materials.
6. The Company hereby agrees to indemnify and hold harmless King, King's
controlling persons, officers, directors, employees, agents and
representatives (collectively, the "Indemnified Persons") from and
against any and all losses, claims, damages, liabilities and expenses
whatsoever (including but not limited to, all reasonable counsel fees,
disbursements and other out-of-pocket expenses) incurred by such
Indemnified Persons in investigating, preparing to defend or defending
(or appearing or preparing for appearance as a witness in connection
with) any claim, litigation, proceeding, investigation, or governmental
or stock exchange inquiry, commenced or threatened or any claim
whatsoever: (i) arising out of or based upon any facts or circumstances
constituting a violation of, or in conflict with, any of the
representations and warranties set forth in paragraph 4 above; or (ii)
arising out of, relating to or in connection with the Rights Offering
except for the Indemnified Person's willful misconduct, bad faith or
gross negligence. The Company shall reimburse such Indemnified Persons
for such reasonable counsel fees and disbursements and other
out-of-pocket expenses at such time as they are paid or incurred by
such Indemnified
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Xxxxxxx Financial Corp.
July 6, 1998
Page 4
Persons. The foregoing indemnity shall be in addition to any liability
which the Company might otherwise have to the Indemnified Persons.
7. King agrees to notify the Company promptly of the assertion of any
claim against any of the Indemnified Persons in connection with the
Rights Offering; and the Company agrees to notify King promptly of the
assertion of any claim against the Company or any of its officers,
directors, employees or agents in connection with the Rights Offering.
At the Company's election, unless counsel advises in writing there is a
conflict of interest, the defense of the Indemnified Persons shall be
conducted by the Company's counsel who shall be reasonably satisfactory
to King and the Indemnified Persons who are defendants in the action or
proceeding. Notwithstanding the Company's election to assume the
defense of such action or proceeding, an Indemnified Person may employ
separate counsel to represent it or defend it in such action or
proceeding and the Company will pay the reasonable fees and expenses of
such counsel as set forth above if such Indemnified Person reasonably
determines and counsel advises in writing that there are defenses
available to such Indemnified Person which are different from, or in
addition to, those available to the Company, or if a conflict of
interest exists which makes representation by counsel chosen by the
Company not advisable; provided however, unless there are actual or
potential conflicts of interest among the Indemnified Persons, the
Company will not be required to pay the fees and expenses of more than
one separate counsel for all Indemnified Persons in any jurisdiction in
any single action or proceeding. In any action or proceeding the
defense of which the Company assumes, the Indemnified Persons shall
nevertheless be entitled to participate in such action or proceeding
and retain their own counsel at such Indemnified Persons' own expense.
The Company shall not settle or compromise any such action or
proceeding without the Indemnified Persons' prior written consent,
unless the terms of the settlement or compromise include an
unconditional release of any such Indemnified Person from all liability
or loss arising out of such action or proceeding.
8. The representations and warranties contained in paragraph 4 above and
the indemnity agreement contained in paragraphs 6 and 7 above shall
remain operative and in full force and effect regardless of: (i) the
termination, expiration or consummation of the Rights Offering; and
(ii) any investigation made by or on behalf of any party.
9. This Letter Agreement shall be construed and enforced in accordance
with the laws of the State of New York. It is agreed that any action,
suit or proceeding arising out of or based upon this Letter Agreement
shall be brought in the United States District Court for the Southern
District of New York or any court of the State of New York of competent
jurisdiction location in such District, and the parties hereto hereby
consent to the IN
Xx. Xxxxxxx X. Xxxxxxx
Xxxxxxx Financial Corp.
July 6, 1998
Page 5
PERSONAM jurisdiction and venue of any such court and to service of
process by certified mail, return receipt requested.
If any provision of this Letter Agreement shall be held illegal or
invalid by any court, this Letter Agreement shall be construed and enforced as
if such provision had been contained herein and shall be deemed an agreement
between the parties hereto to the fullest extent by law.
If the foregoing correctly sets forth the understanding between the
Company and King, please indicate acceptance thereof in the space provided below
for the purpose, whereupon this letter and the Company's acceptance shall
constitute a binding agreement between the parties hereto.
X.X. XXXX & CO., INC.
By:
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Xxxxxx X. Xxxx
Senior Vice President
Acceptance as of the date first above written:
XXXXXXX FINANCIAL CORP.
By:
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Name:
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Title:
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