EXHIBIT 10.5
Xxxxx X. Xxxxxxxx
Executive Vice President and Chief Financial Officer
Xxx Xxxxxxxx Corporation
0000 Xxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
314 966 0909
March 26, 2002
Dear Xxxxx:
This letter agreement (this "Agreement") confirms our understanding
that Xxx Xxxxxxxx Corporation (which, together with its subsidiaries and
affiliates is hereinafter referred to as the "Company" or "you") has engaged
Credit Suisse First Boston Corporation and its affiliates, successors and
assigns, as appropriate ("CSFB" or "we"), to act as its financial advisor for a
period of five (5) years (unless terminated earlier pursuant to Section 6 of
this Agreement) commencing upon the execution of this Agreement, with respect to
the matters set forth in the second paragraph of Section 1 below. Additionally,
CSFB has been engaged by the Company to provide the services set forth in the
third paragraph of Section 1 below (such engagements are collectively referred
to herein as the "Financial Advisory Assignment").
1. APPOINTMENT AND ACCEPTANCE
The Company hereby appoints CSFB as its financial advisor in connection
with the Financial Advisory Assignment. CSFB hereby accepts such
appointment, subject to the terms and conditions of this Agreement.
In connection with the Financial Advisory Assignment, we propose to
undertake certain services on your behalf, to the extent appropriate and
requested by you, which shall consist of the following: (i) assisting you
in analyzing the Company's operations and its historical performance; (ii)
assisting you in analyzing the Company's future prospects; (iii) assisting
you in preparing a strategic plan for the Company.
Additionally, in connection with the Financial Advisory Assignment, we have
been assisting the Company in evaluating its capital structure, analyzing
financing strategies and developing an overall financing package, including
a potential restructuring of its long-term debt, a new equity capital
infusion and possible strategic alternatives.
The Company acknowledges and agrees that CSFB has been retained solely to
provide the advice or services set forth in this Agreement.
CSFB's undertakings under this Agreement are subject to our continued
satisfaction with the results of our ongoing review of the Company's
business and affairs.
2. FEES AND EXPENSES
As compensation to CSFB for its services hereunder, the Company agrees to
pay CSFB as follows:
(a) In connection with the Financial Advisory Assignment, (i) an annual
financial advisory fee of $500,000, payable in equal quarterly
installments beginning on the ninetieth day following the execution of
this Agreement and continuing through the date of termination or
expiration of this Agreement (if payable upon termination of this
Agreement, such final installment to be paid on the effective
date of such termination and prorated for any final period consisting
of less than ninety days) and (ii) an initial advisory fee of
$1,000,000 in consideration of the recent financial advisory services
that CSFB has provided to the Company in evaluating the Company's
capital structure, analyzing financing strategies and developing an
overall financing package, including a potential restructuring of its
long-term debt, a new equity capital infusion and possible strategic
alternatives; and
(b) Promptly upon request, the Company will reimburse CSFB's out-of-pocket
expenses incurred in connection with its activities hereunder,
including, without limitation, the fees and disbursements of its legal
counsel, if any, and of any other advisor retained by CSFB (it being
understood that the retention of any such advisor, other than legal
counsel, will be made with the prior approval of the Company, which
approval will not be unreasonably withheld), resulting from or arising
out of this engagement.
All fees and expenses payable hereunder are net of all applicable
withholding and similar taxes.
3. INFORMATION
The Company will furnish CSFB with all financial and other information
concerning the Company as CSFB deems appropriate in connection with the
performance of the services contemplated by this engagement and, in that
connection, will provide CSFB with reasonable access to the Company's
officers, directors, employees, agents, accountants, counsel and other
representatives. The Company acknowledges and confirms that CSFB (i) will
rely solely on such information in the performance of the services
contemplated by this engagement without assuming any responsibility for
independent investigation or verification thereof, (ii) assumes no
responsibility for the accuracy or completeness of such information or any
other information regarding the Company and (iii) will not make any
appraisal of any assets of the Company.
4. INDEMNIFICATION
Since CSFB will be acting on behalf of the Company in connection with its
engagement hereunder and as further consideration for CSFB's services
hereunder, the Company and CSFB agree to the indemnity provisions and other
matters set forth in Annex A hereto which Annex A is incorporated herein by
reference. The terms and provisions of Annex A shall survive any
termination or expiration of this Agreement.
5. ADDITIONAL SERVICES
If, at any time during the term of this Agreement or prior to the date
which is five (5) years from the date hereof (whichever is later), the
Company is considering a Transaction (as defined herein) and CSFB is chosen
by the Company to advise with respect to such Transaction, then CSFB will
be paid, as compensation for such services, customary fees to be mutually
agreed upon by the parties hereto at the appropriate time. The terms of any
such additional engagement will be set forth in a separate letter agreement
containing terms and conditions to be mutually agreed upon by the parties
hereto, including, without limitation, appropriate indemnification
provisions.
As used herein, the term Transaction shall mean (i) the sale, merger,
consolidation or other business combination, in one or more transactions,
involving any portion of the business, securities or assets of the Company;
(ii) the acquisition (and any related
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matters such as financings, divestitures, etc.), in one or more
transactions, of all or a portion of the business, securities or assets of
another entity or person; (iii) any recapitalization, refinancing,
repurchase or restructuring of the Company's equity or debt securities or
indebtedness or any amendments or modifications to the Company's debt
securities or indentures whether or not in connection therewith, involving,
by or on behalf of the Company, an offer to purchase or exchange for cash,
property, securities, indebtedness or other consideration, or a
solicitation of consents, waivers or authorizations with respect thereto;
(iv) any spin-off, split-off or other extraordinary dividend of cash,
securities or other assets to stockholders of the Company; or (v) any sale
of securities of the Company effected pursuant to a private sale or an
underwritten public offering.
The Company further understands that if CSFB is asked to act for the
Company in any other formal additional capacity not specifically addressed
in this Agreement, such activities shall constitute separate engagements
and the terms of any such additional engagements will be embodied in one or
more separate written agreements containing terms and conditions to be
mutually agreed upon by the parties hereto, including, without limitation,
appropriate indemnification provisions. The indemnity provisions in Annex A
hereto shall apply to any such other activities (unless superseded by an
indemnity provision set forth in a separate agreement applicable to any
such additional engagements) and shall remain in full force and effect
regardless of any completion, modification or termination of CSFB's
engagement(s).
6. TERMINATION
This Agreement may be terminated by CSFB or the Company at any time upon
written notice to the other party. Upon any termination or expiration of
this Agreement, CSFB will be entitled to prompt payment of all fees accrued
prior to such termination or expiration and reimbursement of all
out-of-pocket expenses as described above. No termination of CSFB's
engagement hereunder shall affect (i) the Company's obligations under Annex
A hereto or (ii) the provisions of Sections 4 through 7 of this Agreement.
7. CONFIDENTIALITY; GENERAL
No advice rendered by CSFB, whether formal or informal, may be disclosed,
in whole or in part, or summarized, excerpted from or otherwise referred to
without CSFB's prior written consent. To the extent consistent with legal
requirements, all information given to one party of this Agreement (such
party the "Recipient Party") by the other party (the "Providing Party"),
including, without limitation, this Agreement, unless publicly available or
otherwise available to the Recipient Party without restriction or breach of
any confidentiality agreement, will be held by the Recipient Party in
confidence and will not, without the Providing Party's prior approval, be
disclosed to anyone other than the Recipient's agents and advisors who
require such information to perform services for the Providing Party as
contemplated by this Agreement (and who agree to use such information only
in connection with such services) or used by such person for any purpose
other than those contemplated by this Agreement. Each party hereto shall be
responsible for violations of its respective agents and advisors of the
obligations set forth in this paragraph.
This Agreement and Annex A hereto contain the entire agreement of the
parties with respect to the subject matter hereof and supersede and take
precedence over all prior agreements or understandings, whether oral or
written, between CSFB and the Company including, without limitation, the
Letter Agreement, dated May 22, 1997 (the "DLJSC Letter Agreement"),
between the Company and Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
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Corporation ("DLJSC"), which DLJSC Letter Agreement is hereby terminated by
DLJSC in accordance with its terms. The Company has all requisite power and
authority to enter into this Agreement and the transactions contemplated
hereby. This Agreement has been duly and validly authorized by all
necessary action on the part of the Company and has been duly executed and
delivered by the Company and constitutes a legal, valid and binding
agreement of the Company, enforceable in accordance with its terms.
In connection with this engagement, CSFB is acting as an independent
contractor and not in any other capacity, with duties owing solely to the
Company.
The validity and interpretation of this Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of New
York applicable to agreements made and to be fully performed therein
(excluding the conflicts of law rules). All actions and proceedings arising
out of or relating to this Agreement shall be heard and determined
exclusively in any New York state or federal court sitting in the Borough
of Manhattan in the City of New York, to whose jurisdiction the Company
hereby irrevocably submits. The Company hereby irrevocably waives any
defense or objection to the New York forum designated above. Each of CSFB
and the Company, to the extent permitted by law, on behalf of their
respective equity holders and creditors, hereby knowingly, voluntarily and
irrevocably waives all right to trial by jury in any action, suit,
proceeding or counterclaim (whether based upon contract, tort or otherwise)
related to or arising out of the engagement of CSFB pursuant to, or the
performance by CSFB of the services contemplated by, this agreement.
The benefits of this Agreement shall inure to the parties hereto, their
respective successors and assigns, and to the indemnified parties hereunder
and their respective successors and assigns and representatives, and the
obligations and liabilities assumed in this Agreement by the parties hereto
shall be binding upon their respective successors and assigns.
Please note that CSFB is a full service securities firm engaged in
securities trading and brokerage activities, as well as providing
investment banking and financial advisory services. In the ordinary course
of our trading and brokerage activities, CSFB or its affiliates may at any
time hold long or short positions, and may trade or otherwise effect
transactions, for its or their accounts or for the accounts of customers,
in debt or equity securities of the Company. Nothing herein shall, in
itself, prevent CSFB from engaging in future transactions involving
companies in a similar industry to the Company, provided the Company's
confidential information is not used in connection with such engagement.
The invalidity or unenforceability of any provision of this Agreement shall
not affect the validity or enforceability of any other provisions of this
Agreement or Annex A hereto, which shall remain in full force and effect.
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We are delighted to accept this engagement and look forward to working with you
on this assignment. If this Agreement correctly sets forth your understanding of
the agreement between CSFB and the Company with respect to this engagement,
please sign and return to us the enclosed copy of this Agreement. This Agreement
signed by you shall constitute a binding agreement between us as of the date
first above written.
Very truly yours,
CREDIT SUISSE FIRST BOSTON
CORPORATION
By:
------------------------
Name:
Title:
ACCEPTED AND AGREED TO AS OF THE DATE FIRST ABOVE WRITTEN:
XXX XXXXXXXX CORPORATION
By:
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President and Chief Financial Officer
FOR PURPOSES OF SECTION 7 HEREOF, ACCEPTED AND AGREED TO AS OF THE DATE FIRST
ABOVE WRITTEN:
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES CORPORATION
By:
-------------------------------------
Name:
Title:
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ANNEX A
In further consideration of the engagement by Xxx Xxxxxxxx Corporation
(the "Company") of Credit Suisse First Boston Corporation ("CSFB") to act in the
capacities set forth in our engagement letter dated the date hereof (the
"engagement"), in the event that CSFB or any of its affiliates, the respective
directors, officers, partners, agents or employees of CSFB or any of its
affiliates, or any other person controlling CSFB or any of its affiliates
(collectively, "Indemnified Persons") becomes involved in any capacity in any
action, claim, suit, investigation or proceeding, actual or threatened, brought
by or against any person, including stockholders of the Company, in connection
with or as a result of the engagement or any matter referred to in the
engagement, the Company will reimburse such Indemnified Person for its
reasonable and customary legal and other expenses (including, without
limitation, the costs and expenses incurred in connection with investigating,
preparing for and responding to third party subpoenas or enforcing this
agreement or any related engagement agreement) incurred in connection therewith
as such expenses are incurred. The Company will also indemnify and hold harmless
any Indemnified Person from and against, and the Company agrees that no
Indemnified Person shall have any liability to the Company or its owners,
parents, affiliates, security holders or creditors for, any losses, claims,
damages or liabilities (including actions or proceedings in respect thereof)
(collectively, "Losses") related to or arising out of the engagement or CSFB's
performance thereof, except that this section shall not apply to any Losses that
are finally determined by a court or arbitral tribunal to have resulted
primarily from the bad faith or gross negligence of CSFB.
If such indemnification is for any reason not available or
insufficient to hold an Indemnified Person harmless, the Company agrees to
contribute to the Losses involved in such proportion as is appropriate to
reflect the relative benefits received (or anticipated to be received) by the
Company, on the one hand, and by CSFB, on the other hand, with respect to the
engagement or, if such allocation is determined by a court or arbitral tribunal
to be unavailable, in such proportion as is appropriate to reflect other
equitable considerations such as the relative fault of the Company, on the one
hand, and of CSFB, on the other hand; PROVIDED, HOWEVER, that, to the extent
permitted by applicable law, the Indemnified Persons shall not be responsible
for amounts which in the aggregate are in excess of the amount of all fees
actually received by CSFB from the Company in connection with the engagement.
Relative benefits to the Company, on the one hand, and to CSFB, on the other
hand, with respect to the engagement shall be deemed to be in the same
proportion as (i) the total value received or proposed to be received by the
Company in connection with the transactions contemplated by this Agreement,
whether or not consummated, bears to (ii) all fees actually received by CSFB in
connection with the engagement. Relative fault shall be determined, in the case
of Losses arising out of or based on any untrue statement or any alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact, by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company to CSFB and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act of 1933, as amended) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
The Company will not, without CSFB's prior written consent, settle,
compromise, or consent to the entry of any judgment in or otherwise seek to
terminate any pending or threatened action claim, suit, investigation or
proceeding (an "Action") in respect of which indemnification may be sought
hereunder (whether or not any Indemnified Person is a party therein) unless the
Company has given CSFB reasonable prior written notice thereof and such
settlement, compromise, consent or termination includes an unconditional release
of each Indemnified Person from any liabilities arising out of such Action. The
Company will not permit any such settlement, compromise, consent or termination
to include a statement as to, or an admission of, fault, culpability or a
failure to act by or on behalf of an Indemnified Person, without such
Indemnified Person's prior written consent. No Indemnified Person seeking
indemnification, reimbursement or contribution under this agreement will,
without the Company's prior written
consent, settle, compromise, consent to the entry of any judgment in or
otherwise seek to terminate any Action referred to herein.
Prior to entering into any agreement or arrangement with respect to,
or effecting, any merger, statutory exchange or other business combination or
proposed sale or exchange, dividend or other distribution or liquidation of all
or a significant portion of its assets in one or a series of transactions or any
significant recapitalization or reclassification of its outstanding securities
that does not directly or indirectly provide for the assumption of the
obligations of the Company set forth herein, the Company will promptly notify
CSFB in writing thereof and, if requested by CSFB, shall arrange in connection
therewith alternative means of providing for the obligations of the Company set
forth herein, including the assumption of such obligations by another party,
insurance, surety bonds or the creation of an escrow, in each case in an amount
and on terms and conditions satisfactory to CSFB.
The Company's obligations hereunder shall be in addition to any rights
that any Indemnified Person may have at common law or otherwise. The Company
acknowledges that in connection with the engagement CSFB is acting as an
independent contractor and not in any other capacity with duties owing solely to
the Company. This agreement and any other agreements relating to the engagement
shall be governed by and construed in accordance with the laws of the State of
New York, applicable to contracts made and to be performed therein and, in
connection therewith, the parties hereto consent to the exclusive jurisdiction
of the Supreme Court of the State of New York sitting in New York County or the
United States District Court for the Southern District of New York and the
respective appellate courts thereof. Notwithstanding the foregoing, solely for
the purpose of enforcing the Company's obligations hereunder, the Company
consents to personal jurisdiction, service and venue in any court proceeding in
which any claim subject to this Agreement is brought by or against any
Indemnified Person. CSFB HEREBY AGREES, AND THE COMPANY HEREBY AGREES ON ITS OWN
BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS SECURITY
HOLDERS, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM,
COUNTER-CLAIM OR ACTION ARISING OUT OF THE ENGAGEMENT, CSFB'S PERFORMANCE
THEREOF OR THIS AGREEMENT.
The provisions of this Agreement shall apply to the engagement
(including related activities prior to the date hereof) and any modification
thereof and shall remain in full force and effect regardless of the completion
or termination of the engagement. If any term, provision, covenant or
restriction herein is held by a court of competent jurisdiction to be invalid,
void or unenforceable or against public policy, the remainder of the terms,
provisions and restrictions contained herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
XXX XXXXXXXX CORPORATION
By:
------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President and Chief Financial Officer
Accepted and Agreed to:
CREDIT SUISSE FIRST BOSTON CORPORATION
By
------------------------------------------
Name:
Title:
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