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EXHIBIT 2.1
DEALER MANAGER AGREEMENT
August 7, 2000
FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies/Gentlemen:
1. General. ▇▇▇▇▇▇.▇▇▇ Corporation, a Delaware corporation (the
"Company"), proposes to offer to exchange $42,166,667 aggregate principal amount
of 10 7/8% Convertible Subordinated Notes due December 1, 2003 (the "Exchange
Notes") that are convertible into common stock, par value $0.001 per share, (the
"Shares") of the Company for $63,250,000 aggregate principal amount of its
outstanding 7 1/4% Convertible Subordinated Notes due December 1, 2003 (the
"Existing Notes") (the "Exchange Offer"). For each $3,000 principal amount of
Existing Notes accepted for exchange, the Holder of such Existing Notes will
receive $2,000 principal amount in Exchange Notes. Capitalized terms used herein
without definition shall have their respective meanings set forth in or pursuant
to the Exchange Offer Materials (as defined herein).
2. Engagement as Dealer Manager. By this Dealer Manager Agreement (the
"Agreement"), the Company hereby engages and appoints you as the exclusive
Dealer Manager for the Exchange Offer and authorizes you to act as such in
connection with the Exchange Offer.
As Dealer Manager you agree, in accordance with your customary
practice, to use reasonable efforts to perform in connection with the Exchange
Offer those services as are customarily performed by investment banking concerns
in connection with similar offers, including, without limitation, soliciting
from individuals and institutions the tender of the Existing Notes pursuant to
and in accordance with the terms and conditions of the Exchange Offer. You shall
act as an independent contractor in connection with the Exchange Offer with
duties solely to the Company and nothing herein contained shall constitute you
as an agent of the Company in connection with the solicitation of the tender of
Existing Notes pursuant to and in accordance with the terms and conditions of
the Exchange Offer; provided, however, that the Company hereby authorizes the
Dealer Manager and/or one or more registered brokers or dealers chosen by the
Dealer Manager, to act as the Company"s agent in marketing the Exchange Offer to
residents of any jurisdiction in which such agent designation may be necessary
to comply with applicable law. Nothing in this Agreement shall constitute the
Dealer Manager a partner or joint venturer with the Company or any of its
subsidiaries. On the basis of the representations and warranties and agreements
of the Company contained herein and subject to and in accordance with the terms
and conditions hereof and of the Exchange Offer, the Dealer Manager agrees to
act in such capacity.
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3. Registration Statement, Prospectus and Offering Materials.
(a) The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission"), under the Securities Act of 1933, as
amended (the "Securities Act"), the Trust Indenture Act of 1939, as amended (the
"TIA"), and applicable rules and regulations (the "Rules and Regulations") of
the Commission under both Acts, a registration statement on Form S-4
(333-40758), including a Prospectus, covering the registration of the offer and
sale of the Exchange Notes; the Shares issuable upon conversion of the Exchange
Notes; and the Shares that may be issued solely at the Company"s option as
payment of interest on the Exchange Notes. The term "Registration Statement" as
used in this Agreement shall mean such registration statement, including
financial statements, schedules and exhibits, in the form in which it becomes
effective and, in the event of any amendment thereto or the filing of any
abbreviated registration statement pursuant to Rule 462(b) of the Rules and
Regulations relating thereto after the effective date of such registration
statement, shall also mean (from and after the effectiveness of such amendment
or the filing of such abbreviated registration statement) such registration
statement as so amended, together with any such abbreviated registration
statement. The term "Prospectus" as used in this Agreement shall mean the final
Prospectus included in the Registration Statement. Notwithstanding the
foregoing, if any revised Prospectus shall be provided to you by the Company for
use in connection with the Exchange Offer that differs from the Prospectus
referred to in the immediately preceding sentence (whether or not such revised
Prospectus is required to be filed with the Commission pursuant to Rule 424(b)
of the Rules and Regulations), the term "Prospectus" shall refer to such revised
Prospectus from and after the time it is first provided to you for such use.
(b) The Company has prepared and filed, or agrees that prior to or
on the date of commencement of the Exchange Offer (the "Commencement Date") it
will file, with the Commission under the Exchange Act and the Rules and
Regulations of the Commission promulgated thereunder a Statement on Schedule TO
with respect to the Exchange Offer, including the exhibits thereto. The term
"Schedule TO" as used in this Agreement shall mean such Schedule TO, including
any amendment or supplement thereto.
(c) The Registration Statement, Prospectus, Schedule TO, the related
letters from the Dealer Manager to securities brokers, dealers, commercial
banks, trust companies and other nominees that have been approved for use by the
Company, which approval shall not be unreasonably withheld, letters to
beneficial owners of Existing Notes, the Letter of Transmittal and any newspaper
announcements, if any, press releases and other exchange offer solicitation
materials and information the Company may prepare, approve, publicly
disseminate, provide to registered or beneficial Holders of Existing Notes or
authorize for public dissemination or use by registered or beneficial Holders of
Existing Notes in connection with the Exchange Offer, are collectively referred
to as the "Exchange Offer Materials."
4. Use of Exchange Offer Material.
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(a) The Exchange Offer Materials have been or will be prepared and
approved by, and are the sole responsibility of, the Company. The Company shall
disseminate or, to the extent permitted by law use its best efforts to
disseminate, the Exchange Offer Materials to each registered Holder of any
Existing Notes, as soon as practicable on the Commencement Date, pursuant to
Rule 13e-4 under the Exchange Act, and comply with its obligations thereunder.
Thereafter, to the extent practicable until three days prior to the Expiration
Date of the Exchange Offer, the Company shall use its best efforts to cause
copies of such Exchange Offer Materials and a return envelope to be mailed to
each person who becomes a Holder of record of any Existing Notes. The Company
acknowledges and agrees that you may use the Exchange Offer Materials, as
specified herein without assuming any responsibility for independent
verification on your part other than information about the Dealer Manager
supplied by you in writing; and the Company represents and warrants to you that
you may rely on the accuracy and completeness of any information delivered to
you by or on behalf of the Company without assuming any responsibility for
independent verification of such information and without performing or receiving
any appraisal or evaluation of the assets or liabilities of the Company.
(b) The Company agrees to provide you with as many copies as you may
reasonably request of the Exchange Offer Materials. The Company agrees that
within a reasonable time prior to using or filing with the Commission or any
governmental or regulatory entity or agency (an "Other Agency"), including the
National Association of Securities Dealers, Inc. (the "NASD"), of any Exchange
Offer Materials, it will submit copies of such materials to you and your counsel
("Dealer Manager's Counsel") and will give reasonable consideration to your and
your counsel's comments, if any, thereon. The Company agrees prior to the
termination of the Exchange Offer, before amending or supplementing the
Registration Statement or the Prospectus, to furnish copies of drafts to, and
consult with, you and your counsel within a reasonable time in advance of filing
with the Commission of any amendment or supplement to the Registration
Statement, the Prospectus or the other Exchange Offer Materials and will give
reasonable consideration to your and your counsel's comments, if any, thereon.
(c) The Company has furnished or shall use its best efforts to
furnish to you, or cause the transfer agents or registrars for the Exchange
Notes to furnish to you, as soon as practicable after the date hereof (to the
extent not previously furnished), cards or lists in reasonable quantities or
copies thereof showing the names of persons who were the holders of record or,
to the extent available, the beneficial owners of the Exchange Notes as of a
recent date, together with their addresses and the aggregate principal amount at
maturity of the Exchange Notes held by them. Additionally, the Company shall
update, or cause the transfer agents or registrars referred to above to update,
such information from time to time during the term of this Agreement as may be
reasonably requested by you. Except as otherwise provided herein, you agree to
use such information only in connection with the Exchange Offer.
(d) The Company authorizes the Dealer Manager to use the Exchange
Offer Materials in connection with the Exchange Offer for such period of time as
any such materials are required by law to be delivered in connection therewith.
The Dealer Manager shall not have any obligation to cause any Exchange Offer
Materials to be transmitted generally to the Holders of Existing Notes.
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(e) The Company authorizes the Dealer Manager to communicate with
the information agent (the "Information Agent") or the exchange agent (the
"Exchange Agent") appointed by the Company to act in such capacity in connection
with the Exchange Offer. The Company will arrange for the Exchange Agent to
advise you, as necessary and at least daily, as to such matters relating to the
Exchange Offer as you may reasonably request.
(f) The Company agrees that any reference to the Dealer Manager in
any Exchange Offer Materials or in any newspaper announcement or press release
or other document or communication is subject to the Dealer Manager"s prior
consent, which consent shall not be unreasonably withheld.
5. Withdrawal. In the event that the Company (i) uses or permits the
use of, or files with the Commission or any Other Agency, any Exchange Offer
Materials or any amendment or supplement to the Registration Statement or the
Prospectus, and such document (a) has not been submitted to you previously for
your and your counsel's comments; or (b) has been so submitted, and you or your
counsel have made comments which have not been reflected in a manner reasonably
satisfactory to you or your counsel; or (ii) shall have breached, in any
material respect, any of its representations, warranties, agreements or
covenants herein; or (iii) amends or revises the Exchange Offer in a manner not
reasonably acceptable to you then you shall be entitled to withdraw as Dealer
Manager in connection with the Exchange Offer without any liability or penalty
to you and without loss of any right to indemnification or contribution provided
in Section 11 or to the payment of all fees and expenses payable under Sections
6 and 7 below which have accrued to the date of such withdrawal (it being agreed
that in the event of any such withdrawal, for the purpose of determining the
fees payable to you pursuant to Section 6, the aggregate principal amount of
Existing Notes tendered pursuant to the Exchange Offer as of the close of
business on the date of such withdrawal which are thereafter acquired by the
Company or any of its subsidiaries or affiliates pursuant to the Exchange Offer
or otherwise shall be deemed to have been acquired as of the date of such
withdrawal).
6. Fees. As compensation for your services in connection with the
Exchange Offer, the Company will pay you a fee determined in accordance with the
fee schedule set forth below as of the Expiration Date with regard to the
Existing Notes validly tendered and accepted for exchange pursuant to the
Exchange Offer:
Percentage of Aggregate Principal
Amount of Existing Notes Converted Graduated Fee Total Fees
---------------------------------- ------------- ----------
0.00% to 40.00% 2.00% $ 506,000
40.01% to 60.00% 3.25% $ 917,000
60.01% to 70.00% 4.50% $1,202,000
70.01% to 80.00% 5.50% $1,550,000
80.01% to 100.00% 0% $1,550,000
------ -- ------- -- ----------
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Total
A retainer of $500,000 shall be paid by the Company to FleetBoston ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, Inc. not later than the Commencement Date and the remaining fees shall
be paid on the date when the Exchange Offer is consummated (the "Closing Date").
7. Expenses.
(a) The Company agrees that it will pay the costs and expenses
incident to the performance of the obligations hereunder, including, without
limitation (i) all costs and expenses incurred by dealers and brokers (including
yourself), commercial banks, trust companies and nominees for their customary
mailing and handling expenses incurred in forwarding the Exchange Offer
Materials to their customers, (ii) the filing fees and expenses, if any,
incurred with respect to any filing with the NASD, (iii) all costs and expenses
incident to the preparation, issuance, execution and delivery of the Exchange
Notes upon exchange of the Existing Notes, (iv) all costs and expenses incident
to the preparation, printing and filing under the Securities Act of the
Registration Statement and the Prospectus (including, without limitation, in
each case all exhibits, amendments and supplements thereto), (v) all costs and
expenses incurred in connection with the registration or qualification of the
Exchange Notes issuable upon exchange of the Existing Notes under the laws of
such jurisdictions as the Dealer Manager may designate, if any (including,
without limitation, reasonable fees of counsel for the Dealer Manager and its
reasonable disbursements), (vi) all costs and expenses incurred in connection
with the printing (including word processing and duplication costs) and delivery
of all Exchange Offer Materials (including, without limitation, any preliminary
and supplemental blue sky memoranda) including, without limitation, mailing and
shipping; (vii) all advertising expenses related to the Exchange Offer and the
fees and expenses of the Exchange Agent and the Information Agent; (viii) all
fees and expenses incurred in marketing the Exchange Offer, including but not
limited to road show presentations, if any; and including travel and related
expenses incurred by the Dealer Manager, and (ix) the fees and disbursements of
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ LLP, counsel to the Company, and Ernst & Young LLP,
auditors to the Company. In addition, the Company agrees to reimburse the
reasonable out-of-pocket expenses of the Dealer Manager in connection with the
Exchange Offer, including without limitation, reasonable legal fees and expenses
of Dealer Manager"s Counsel in connection with the Exchange Offer.
8. Representations, Warranties and Agreements of the Company. The
Company represents and warrants to you, and agrees with you, that:
(a) The Registration Statement, including the Prospectus, has been
prepared by the Company in conformity with the requirements of the Securities
Act and the Rules and Regulations and has been filed with the Commission; such
amendments to such Registration Statement and Prospectus and such abbreviated
registration statements pursuant to Rule 462(b) of the Rules and Regulations as
may have been required prior to the date hereof have been similarly prepared and
filed with the Commission; and the Company will file such additional amendments
to such Registration Statement and Prospectus and such abbreviated registration
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statements as may hereafter be required. Copies of such Registration Statement
and Prospectus, including all amendments thereto, and of any abbreviated
registration statement pursuant to Rule 462(b) of the Rules and Regulations have
been or, if filed after the Commencement Date, will be, delivered or made
available to you and your counsel.
(b) The Schedule TO has been prepared by the Company in conformity
with the requirements of the Exchange Act and the Rules and Regulations of the
Commission thereunder and has been filed with the Commission; such amendments to
such Schedule TO as may have been required prior to the date hereof have been
similarly prepared and filed with the Commission; and the Company will file such
additional amendments to such Schedule TO as may hereafter be required. Copies
of such Schedule TO, including all amendments thereto have been or, if filed
after the Commencement Date, will be delivered or made available to you and your
counsel.
(c) The Registration Statement, including the Prospectus, has been
filed as of the Commencement Date and will become effective not later than the
Expiration Date; and the Commission has not issued any order refusing or
suspending the effectiveness of the Registration Statement or preventing or
suspending the use of any Prospectus or instituted proceedings for that purpose.
The Exchange Offer Materials, including the Registration Statement, the Schedule
TO and the Prospectus, comply and, as amended or supplemented, if applicable,
will comply in all material respects with the Securities Act, the Exchange Act
and the TIA, and the applicable Rules and Regulations of the Commission
thereunder. The Registration Statement, when it becomes effective, will not
contain and, as amended or supplemented, if applicable, will not contain, any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading.
None of the Prospectus or other Exchange Offer Materials contains, and, as
amended or supplemented, if applicable, will contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that none of the representations and warranties
contained in this subparagraph (c) shall apply to information contained in or
omitted from the Exchange Offer Materials or the Registration Statement or
Prospectus, or any amendment or supplement thereto, in reliance upon, and in
conformity with, written information relating to you furnished to the Company by
you specifically for use in the preparation thereof.
Any amendment, if any was filed, or when they were filed, conformed
in all material respects with the requirements of the Exchange Act and the Rules
and Regulations of the Commission thereunder; no such document when it was filed
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; and no such further amendment will contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(d) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation with full power and authority (corporate and other) to own, lease
and operate its properties and conduct its
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business as described in the Prospectus; the Company is duly qualified to do
business as a foreign corporation and is in good standing in each jurisdiction
in which the ownership or leasing of its properties or the conduct of its
business requires such qualification, except where the failure to be so
qualified or be in good standing would not have a material adverse effect on the
condition (financial or otherwise), earnings, operations, business or business
prospects of the Company and its subsidiaries taken as a whole ("Material
Adverse Effect").
(e) Each of the Company's "significant subsidiaries" (a list shall
be provided and attached) as define in Rule 405 under the Securities Act,
referred to as "Significant Subsidiaries" has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, and has the corporate power to own, lease and
operate its properties and to conduct its business as described in the
Prospectus, and is qualified to do business as a foreign corporation and is in
good standing in each jurisdiction, if any, in which the ownership and leasing
of its properties or the conduct of its business requires such qualification,
except where the failure to be so qualified or be in good standing would not
have a Material Adverse Effect.
(f) All of the issued and outstanding shares of capital stock of
each of the Significant Subsidiaries has been duly authorized and validly issued
and are fully paid and nonassessable, and, has not been issued in violation of
or subject to any preemptive right, co-sale right, registration right, right of
first refusal or other similar right and, except as disclosed in the
Registration Statement, Prospectus and Exchange Offer Materials, are owned by
the Company, free and clear of any pledge, lien, security interest, encumbrance,
claim or equitable interest.
(g) The Company has full legal right, power and authority to enter
into and perform its obligations under this Agreement, the Indenture and the
Exchange Notes and to consummate the Exchange Offer and all other transactions
contemplated in the Exchange Offer Materials. The Exchange Offer and all other
actions by the Company contemplated in the Exchange Offer Materials have been
duly and validly authorized by all necessary corporate action by the Company,
and no other corporate proceedings by the Company are necessary to authorize
such actions. This Agreement has been duly authorized, executed and delivered by
the Company and is a legal, valid and binding agreement on the part of the
Company, enforceable in accordance with its terms, except as rights to
indemnification hereunder may be limited by applicable law and except as the
enforcement hereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles; the execution
and delivery by the Company of, and the performance by the Company of its
obligations under this Agreement, the Exchange Offer, the issuance and delivery
by the Company of the Exchange Notes pursuant to the Exchange Offer, the
consummation of the Exchange Offer, and the other transactions contemplated in
the Exchange Offer Materials, and the fulfillment of the terms hereof and
thereof, do not and will not result in a material breach or violation of any of
the terms and provisions of, or constitute a material default under, (i) any
material bond, debenture, note or other evidence of indebtedness, or under any
material lease, contract, indenture, mortgage, deed of trust, loan agreement,
joint venture or other material agreement or instrument to which the Company or
any of its subsidiaries is a party or by which it or any of its subsidiaries or
their
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respective properties may be bound, (ii) the charter or bylaws of the Company or
any of its subsidiaries, or (iii) any law, order, rule, regulation, writ,
injunction, judgment or decree of any court, government or governmental agency
or body, domestic or foreign, having jurisdiction over the Company or any of its
subsidiaries or over their respective properties except where such breach,
violation, or default would not have a Material Adverse Effect. No consent,
approval, authorization, permit or order of or qualification with any court,
government or governmental agency or body, domestic or foreign, having
jurisdiction over the Company or any of its subsidiaries or over their
respective properties is required for the execution and delivery of this
Agreement, the Exchange Offer, the issuance and delivery of the Exchange Notes
pursuant to the Exchange Offer, and the consummation by the Company or any of
its subsidiaries of the transactions contemplated herein or in the Exchange
Offer Materials, except such as may be required under the Securities Act, the
Exchange Act, or under state or other securities, or Blue Sky laws, all of which
requirements have been satisfied other than as contemplated by such agreements
or except where such requirement would not have a material adverse effect on the
execution and delivery of this Agreement, the Exchange Offer, the execution and
delivery of the Indenture, the issuance of the Exchange Notes or the
consummation of the transactions contemplated herein or in the Exchange Offer
Materials. Notwithstanding the foregoing, to the extent any of the foregoing
representations speak as to any of the Company's subsidiaries, such
representations shall be deemed to be made only as it relates to the execution
and delivery by the Company of, and the performance by the Company of its
obligations under this Agreement, the Exchange Offer, the issuance and delivery
by the Company of the Exchange Notes pursuant to the Exchange Offer, and the
consummation of the Exchange Offer, but no other transaction contemplated in the
Exchange Offer Materials.
(h) Except as disclosed in the Registration Statement, Prospectus
and Exchange Offer Materials, there is not any pending or, to the best of the
Company"s knowledge, threatened action, suit, claim or proceeding against the
Company, any of its subsidiaries or any of their respective officers or any of
their respective properties, assets or rights before any court, government or
governmental agency or body, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or over their respective officers or
properties or otherwise which might prevent consummation of the Exchange Offer,
the transactions contemplated hereby or thereby or the other transactions
contemplated in the Exchange Offer Materials that has not been accurately
described in all material respects in the Registration Statement or the
Prospectus; and there are no agreements, contracts, leases or documents of the
Company or any of its subsidiaries of a character required to be described or
referred to in the Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement by the Securities Act or the Rules and
Regulations thereunder or by the Exchange Act or the Rules and Regulations of
the Commission thereunder which have not been accurately described in all
material respects in the Registration Statement or Prospectus or filed as
exhibits to the Registration Statement.
(i) All outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid and nonassessable, have
been issued in compliance with all federal and state securities laws, were not
issued in violation of or subject to any preemptive rights or other rights to
subscribe for or purchase securities, and the authorized
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and outstanding capital stock of the Company is as set forth in the Prospectus
under the caption "Capitalization" and conforms in all material respects to the
statements relating thereto contained in the Registration Statement and the
Prospectus (and such statements correctly state the substance of the instruments
defining the capitalization of the Company); the Shares issuable pursuant to the
terms of the Exchange Notes have been duly authorized for issuance and delivery
and, when issued and delivered by the Company in accordance with the terms of
the Exchange Notes will be duly and validly issued and fully paid and
nonassessable, and will be free and clear of any pledge, lien, security
interest, encumbrance, claim or equitable interest; and no preemptive right,
co-sale right, registration right, right of first refusal or other similar right
of shareholders exists with respect to any of the Shares issuable in the
Exchange Offer or the issuance thereof other than those that have been expressly
waived prior to the date hereof and those that will automatically expire upon
and will not apply to the consummation of the transactions contemplated on or
before the Closing Date. No further approval or authorization of any
shareholder, the Board of Directors of the Company or others is required for the
issuance or transfer of the Shares issuable in accordance with the Exchange
Notes and except as may be required under the Securities Act, the Exchange Act
or under state or other securities or Blue Sky laws.
(j) The Indenture has been or will be duly authorized by the
Company, has been filed as of the Commencement Date, will be qualified under the
TIA not later than the Expiration Date, and assuming due authorization,
execution and delivery of the Indenture by the Trustee, when executed and
delivered by the Company, will constitute a valid and binding agreement of the
Company, enforceable in accordance with its terms, except as the enforcement
thereof may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws affecting enforcement of
creditors" rights generally and (ii) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in equity).
(k) The Exchange Notes to be issued pursuant to the Exchange Offer
have been authorized, and assuming due authorization, execution and delivery of
the Indenture by the Trustee, when executed and authenticated in accordance with
the provisions of the Indenture and delivered in accordance with the terms of
the Exchange Offer, will be entitled to the benefits of the Indenture and will
be valid and binding obligations of the Company enforceable in accordance with
their terms, except as the enforcement thereof may be limited by the (i)
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other
similar laws affecting enforcement of creditors" rights generally and (ii)
general principles of equity (regardless of whether enforceability is considered
in a proceeding at law or in equity); the Exchange Notes will conform in all
material respects to the description thereof contained in the Registration
Statement and Prospectus.
(l) The consolidated financial statements (including the related
notes) included in the Registration Statement and the Prospectus (and any
amendments or supplements thereto) present fairly, in all material respects, the
financial position, the results of operations and cash flows of the Company at
the dates and for the periods indicated in accordance with generally accepted
accounting principles applied on a consistent basis throughout the periods
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indicated except as may otherwise be stated therein. The interim consolidated
financial statements (including the related notes) included in the Registration
Statement and the Prospectus (and any amendments and supplements thereto) have
been prepared on a basis consistent with the audited consolidated financial
statements except as otherwise stated therein, and include in your opinion all
adjustments, including normal recurring adjustments necessary to present fairly
the financial information therein. The selected and summary consolidated
financial and statistical data included in the Registration Statement and the
Prospectus (and any amendments or supplements thereto) present fairly the
information shown therein and have been compiled on a basis consistent with the
audited financial statements presented therein. No financial statements or
schedules, other than the consolidated financial statements or schedules that
are included in the Registration Statement and the Prospectus (and any
amendments or supplements thereto), are required to be included therein.
(m) Except as disclosed in the Registration Statement and
Prospectus, the Common Stock is registered pursuant to Section 12(g) of the
Exchange Act and has been accepted for quotation on the NASDAQ Stock Market, and
the Company has taken no action designed to, or likely to have the effect of,
terminating the registration of the Common Stock under the Exchange Act or
delisting the Common Stock from the NASDAQ Stock Market.
(n) The Company has conducted, and intends in the future to conduct,
its affairs in such a manner as to ensure that it is not and will not become an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended (the "1940 Act"),
and the Rules and Regulations thereunder.
(o) The Company has not distributed and will not distribute prior to
the later of (i) the Closing Date, and (ii) completion of the distribution of
the Exchange Notes in exchange for the Existing Notes pursuant to the Exchange
Offer, any offering material in connection with the Exchange Offer other than
the Exchange Offer Materials.
(p) The Company has not taken and will not take, directly or
indirectly, any action resulting in a violation of Rule 102 promulgated under
the Exchange Act or designed to or that might reasonably be expected to cause or
result in stabilization or manipulation of the price of the Common Stock to
facilitate the distribution of the Exchange Notes.
(q) The Exchange Agent Agreement between the Company and LaSalle
National Bank (the "Exchange Agent Agreement") is or will be in full force and
effect.
(r) Except as disclosed in the Registration Statement and
Prospectus, neither the Company nor any of its subsidiaries is in violation of
any statute, any rule, regulation, decision or order of any governmental agency
or body or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances, owns or operates any real property contaminated with any substance
that is subject to any environmental laws, is liable for any off-site disposal
or contamination pursuant to any environmental laws, or is subject to any claim
relating to any environmental laws, which violation, contamination,
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liability or claim would, individually or in the aggregate, have a Material
Adverse Effect; and the Company is not aware of any pending investigation which
would reasonably be expected to lead to such a claim.
(s) All written communications, in addition to the Schedule TO, made
during the period from the first public announcement and to the earlier of
either the termination date or the Closing Date of the Exchange Offer have been
or will be filed with the SEC in accordance with the Exchange Act and the SEC's
Rules and Regulations including Rule 13e-4 under the Exchange Act.
(t) Except as disclosed in the Registration Statement and
Prospectus, the Company, and does not intend to discontinue its website retail
business for fiscal 2000.
(u) The Company does not intend to record a restructuring charge for
the remainder of fiscal 2000.
(v) Except as disclosed in the Registration Statement and
Prospectus, there is not any pending or, threatened action suit, claim or
proceeding against the company, any of its subsidiaries with respect to the
Company's intellectual property before any court, government or governmental
agency or body, domestic or foreign, having jurisdiction over the company or any
of its subsidiaries which might prevent consummation of the Exchange Offer that
has not been accurately described in all material respects in the Registration
Statement or the Prospectus.
(w) The Registration Statement and any amendments thereto, included
or through incorporation by reference as exhibits all material agreements
required under Item 601(b)(10) of Regulation S-K.
(x) The Company is in or intends in the future to be duly qualified
to do business as a foreign corporation and to be in good standing in each
jurisdiction that it is registered and qualified to do business.
9. Further Agreements of the Company. The Company further agrees with
you that:
(a) The Company will use its best efforts to cause the Registration
Statement and any amendment thereof to become effective as soon as possible but
no later than the Expiration Date; the Company will use its best efforts to
cause any abbreviated registration statement pursuant to Rule 462(b) of the
Rules and Regulations as may be required subsequent to the date the Registration
Statement is declared effective to become effective as promptly as possible; the
Company will notify you, promptly after it shall receive notice thereof, of the
time when the Registration Statement, any subsequent amendment to the
Registration Statement or any abbreviated registration statement has become
effective or any supplement to the Prospectus or additional Exchange Offer
Materials has been filed; if for any reason the filing of the final form of
Prospectus is required under Rule 424(b)(3) of the Rules and Regulations, it
will provide evidence satisfactory to you that the Prospectus contains such
information and has been filed with the Commission within the time period
prescribed; it will notify you promptly of any request by the Commission for the
amending or supplementing of the Registration Statement or the Prospectus or
other Exchange Offer Materials or for additional information relating to the
Exchange Offer; promptly upon your request, it will prepare and file with the
Commission any amendments or supplements to the Registration Statement or
Prospectus or other Exchange Offer Materials which, in the opinion of Dealer
Manager's Counsel, may be necessary or advisable in connection with the Exchange
Offer; it will promptly prepare and file with the Commission, and promptly
notify you of the filing of, any amendments or supplements to the Registration
Statement or the Prospectus or other Exchange Offer Materials which may be
necessary to
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correct any statements or omissions, if, at any time when a Prospectus relating
to the Exchange Offer is required to be delivered under the Securities Act and
the Exchange Act, any event shall have occurred as a result of which the
Prospectus or any other prospectus relating to the Exchange Offer as then in
effect would include any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and it will file no
amendment or supplement to the Registration Statement or the Prospectus or other
Exchange Offer Materials, or, prior to the end of the period of time in which
the Exchange Offer Materials relating to the Exchange Offer are required to be
delivered under the Securities Act and the Exchange Act, which shall not
previously have been submitted to you a reasonable time prior to the proposed
filing thereof and will give reasonable consideration to you or your counsel's
comments, if any, thereon, subject, however, to compliance with the Securities
Act and the Rules and Regulations, the Exchange Act and the Rules and
Regulations of the Commission thereunder and the provisions of this Agreement.
Notwithstanding anything else to the contrary set forth in this Agreement, the
Company reserves the right to terminate the Exchange Offer prior to the
Expiration Date of the Exchange Offer or amend or modify the business terms of
the Exchange Offer in its sole and absolute discretion, subject to the Company's
obligations under Sections 6, 7 and 11 of this Agreement in the event that the
Dealer Manager withdraws pursuant to Section 5 as a result of any such
termination, amendment or modification.
(b) The Company will advise you, promptly after it shall receive
notice or obtain knowledge, of the issuance of any order by the Commission
refusing or suspending the effectiveness of the Registration Statement or of the
initiation or threat of any proceeding for that purpose; and it will promptly
use its best efforts to prevent the issuance of any refusal or stop order or to
obtain its withdrawal at the earliest possible moment if such refusal or stop
order should be issued.
(c) The Company will use its best efforts to qualify the Exchange
Notes issuable pursuant to the Exchange Offer under the securities laws of such
jurisdictions as you may designate and to continue such qualifications in effect
for so long as may be required for purposes of the Exchange Offer, except that
the Company shall not be required in connection therewith or as a condition
thereof to qualify as a foreign corporation or to execute a general consent to
service of process in any jurisdiction in which it is not otherwise required to
be so qualified or to so execute a general consent to service of process. In
each jurisdiction in which the Exchange Notes shall have been qualified as above
provided, the Company will make and file such statements and reports in each
year as are or may be required by the laws of such jurisdiction.
(d) To make generally available to its security holders and to the
Dealer Manager by filing with the SEC as soon as practicable, an earnings
statement covering a twelve-month period beginning not later than the first day
of the Company's next fiscal quarter following the effective date of the
Registration Statement that satisfies the provisions of Section 11(a) of the
Securities Act and the Rules and Regulations of the Commission thereunder.
(e) To use its best efforts to advise or cause the Exchange Agent to
advise the
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Dealer Manager at 5:00 P.M., Eastern Daylight Time, or promptly thereafter,
daily (or more frequently if requested), by telephone or facsimile transmission,
with respect to Existing Notes tendered as follows: (i) the aggregate principal
amount of Existing Notes validly tendered and represented by confirmations of
receipt of book-entry transfer of Existing Notes pursuant to the procedures set
forth in the Exchange Offer on such day; (ii) the aggregate principal amount of
any Existing Notes properly withdrawn on such day; and (iii) the cumulative
totals of the principal amount of Existing Notes in categories (i) through (ii),
inclusive, above.
(f) Without limiting Sections 5, 7 and 13 of this Agreement, if the
transaction contemplated hereby is not consummated by reason of any failure,
refusal or inability on the part of the Company to perform any agreement on its
part to be performed hereunder or to fulfill any condition of your obligations
hereunder, the Company will reimburse you for all out-of-pocket expenses
(including fees and disbursements of Dealer Manager's Counsel) incurred by you
in connection with the Exchange Offer.
10. Conditions of Dealer Manager's Obligations. Your obligations as
provided herein shall be subject at all times on and prior to the Closing Date,
to the accuracy of the representations and warranties of the Company herein, to
the accuracy of the statements of officers of the Company made pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) The Registration Statement shall have been filed prior to the
Commencement Date and no stop order refusing the effectiveness thereof shall
have been issued and the Registration Statement shall become effective prior to
the Expiration Date and no stop order suspending the effectiveness thereof shall
have been issued and no proceedings for either purpose shall have been initiated
or, to the knowledge of the Company or you, threatened by the Commission, and
any request of the Commission for additional information (to be included in the
Registration Statement, the Prospectus, or other Exchange Offer Materials or
otherwise) shall have been complied with to the reasonable satisfaction of
Dealer Manager's Counsel.
(b) After execution and delivery of this Agreement and prior to the
Closing Date there shall not have occurred from that described in the Prospectus
(a) any adverse change or development in the condition (financial or otherwise),
earnings, operations, business or business prospects of the Company and its
subsidiaries considered as one enterprise, (b) any obligation, direct or
contingent, incurred by the Company or its subsidiaries, except obligations
incurred in the ordinary course of business, (d) any change in the capital stock
or outstanding indebtedness of the Company, (e) any dividend or distribution of
any kind declared, paid or made on the capital stock of the Company; or (f) any
loss or damage (whether or not insured) to the property of the Company or any of
its subsidiaries which has been sustained or will have been sustained that
either individually or in the aggregate, in the Dealer Manager's reasonable
judgment, are material and adverse and that makes it, in the Dealer Manager's
judgment impracticable to recommend that holders of Existing Notes participate
in the Exchange Offer on the terms and in the manner contemplated in the
Registration Statement.
(c) All corporate proceedings and other legal matters in connection
with this
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Agreement, the Registration Statement, the Prospectus, other Exchange Offer
Materials or otherwise, and the registration, authorization, issue, and delivery
of the Exchange Notes issuable in accordance with the Exchange Offer, shall have
been reasonably satisfactory to Dealer Manager's Counsel, and such counsel shall
have been furnished with such papers and information as they may reasonably have
requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇
LLP, counsel for the Company, dated the Closing Date, respectively, addressed to
you to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation;
(ii) The Company has the corporate power and
corporate authority to enter into this Agreement, the
Exchange Agent Agreement, the Information Agent Agreement,
and the Indenture under which the Exchange Notes will be
issued pursuant to the Exchange Offer;
(iii) This Agreement, the performance by the Company
of its obligations hereunder, the Exchange Offer, the
issuance and delivery by the Company of the Exchange Notes
pursuant to the Indenture and consummation of the Exchange
Offer has been duly authorized by all necessary corporate
action on the part of the Company; this Agreement has been
duly executed and delivered by the Company;
(iv) The Exchange Agent Agreement and the Information
Agent Agreement have been duly authorized, executed and
delivered by the Company;
(v) The Company is not, or after giving effect to the
Exchange Offer, will not be, and the Company is not directly
or indirectly "controlled" by, an "investment company," as
such terms are defined in the 1940 Act;
(vi) The Registration Statement has been filed under
the Securities Act prior to the Commencement Date and, to
such counsel's knowledge, no refusal order preventing
effectiveness, and after effectiveness, no stop order
suspending the effectiveness, of the Registration Statement
has been issued and to such counsel's knowledge, no
proceedings for that purpose have been instituted or are
pending or threatened under the Securities Act;
(vii) The Registration Statement and the Prospectus,
and each amendment or supplement thereto (other than the
financial statements, including supporting schedules, and
financial data derived therefrom as to which such counsel
need express no opinion), as of the effective date of the
Registration
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Statement, complied as to form in all material
respects with the requirements of the Securities Act and the
applicable Rules and Regulations thereunder;
(viii) The Schedule TO, and each amendment or
supplement thereto, and the documents required by Item 12
Exhibits, thereof (other than the financial statements,
including supporting schedules, and the financial data
derived therefrom as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Exchange Act and the Rules and
Regulations thereunder;
(ix) The information in the Prospectus under the
captions "The Exchange Offer," "Description of Existing
Notes," "Description of Exchange Notes," "Legal Proceedings,"
and "Description of Capital Stock," insofar as such
statements purport to constitute a summary of the legal
matters, documents or proceedings referred to therein, fairly
summarize in all material respects the matters referred to
therein;
(x) The statements in the Prospectus under the
caption "Federal Income Tax Considerations," in so far as
they purport to describe the provisions of the laws referred
to therein, fairly summarize such laws in all material
respects;
(xi) The execution and delivery by the Company of,
and the performance by the Company of it obligations under
this Agreement, the Exchange Offer, the issuance and delivery
by the Company of the Exchange Notes pursuant to the Exchange
Offer and consummation of the Exchange Offer, and the
fulfillment of the terms hereof and thereof will not, to such
counsel's knowledge, result in a material breach or violation
of any of the terms and provisions of, or constitute a
default under, any agreements; or any applicable U.S. federal
or California statute, rule or regulation known to such
counsel or, to such counsel's knowledge, any order, writ or
decree of any U.S. federal or California court, government or
governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or over any of their
properties or operations; provided, however, that no opinion
need be rendered concerning state securities or Blue Sky
laws;
(xii) No consent, approval, authorization, permit or
order of or qualification with any U.S. federal or California
court, government or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries, or
over any of their properties or operations is necessary in
connection with the consummation by the Company of its
obligations under this Agreement, the Exchange Offer, the
issuance and delivery of the Exchange Notes pursuant to the
Exchange Offer and the consummation of the Exchange Offer,
except such as have been obtained under the Securities Act or
Exchange Act or such as may be required under state or other
securities or Blue Sky laws or as
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contemplated by such agreements;
(xiii) The Indenture has been duly authorized,
executed and delivered by the Company and assuming due
authorization, execution and delivery of the Indenture by the
Trustee, constitutes a valid and binding agreement of the
Company enforceable in accordance with its terms; the
Indenture has been duly qualified under the TIA;
(xiv) The Exchange Notes when executed and
authenticated in accordance with the provisions of the
Indenture, assuming due authorization, execution and delivery
of the Indenture by the Trustee, and delivered in accordance
with the terms of the Exchange Offer, will be entitled to the
benefits of the Indenture and will be valid and binding
obligations of the Company enforceable in accordance with
their terms; and the Exchange Notes conform in all material
respects to the description contained in the Registration
Statement and Prospectus;
(xv) The Shares issuable pursuant to the terms of the
Exchange Notes have been duly authorized and reserved for the
issuance and delivery and when issued in accordance with the
terms of the Exchange Notes, will be validly issued, fully
paid and non-assessable, and the issuance of such Shares is
not subject to any preemptive or similar rights under the
Company"s certificate of incorporation, by-laws or the
General Corporation Law of the State of Delaware;
(xvi) The Company has the corporate power and
corporate authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus;
(xvii) The Company is duly qualified to do business
as a foreign corporation and is in good standing in each
jurisdiction;
(xviii) The authorized, issued and outstanding
capital stock of the Company is as set forth in the
Prospectus as of the dates stated therein;
(xix) To such counsel's knowledge, there are no legal
or governmental proceedings pending or threatened against the
Company or any of its subsidiaries of a character required to
be disclosed in the Registration Statement, or the Prospectus
by the Securities Act or the Rules and Regulations thereunder
or by the Exchange Act or the applicable Rules and
Regulations of the Commission thereunder, other than those
described therein;
(xx) To such counsel's knowledge, neither the Company
nor any of its subsidiaries is presently (a) in material
violation of its respective charter or bylaws, or (b) in
material breach of any applicable U.S. federal or California
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statute, rule or regulation known to such counsel or, to such
counsel's knowledge, any order, writ or decree of any U.S.
federal or California or Delaware court or governmental
agency or body having jurisdiction over the Company or any of
its subsidiaries, or over any of their properties or
operations;
(xxi) The execution and delivery by the Company of,
and the performance by the Company of it obligations under
this Agreement, the Exchange Offer, the issuance and delivery
by the Company of the Exchange Notes pursuant to the Exchange
Offer and consummation of the Exchange Offer, and the
fulfillment of the terms hereof and thereof will not, to such
counsel's knowledge, result in any violation of the Company's
charter or bylaws.
(xxii) Except as set forth in the Registration
Statement and Prospectus, nothing has come to our attention
which would indicate that the Exchange Offer will not comply
with all applicable requirements of the takeover statues,
securities laws and Blue Sky laws of the various states of
the United States, including any applicable regulations of
any regulatory authority or other governmental agency or
instrumentality promulgated under such laws, or that the
Company has not obtained all consents, approvals,
authorizations or orders of, or has not duly made all
registrations, qualifications or filings with, any court or
regulatory authority or other governmental agency or
instrumentality in the United States required to be obtained
or made in connection with the making and consummation of the
Exchange Offer Agreement, except such as may be required
under the takeover statutes, securities laws and Blue Sky
laws of the various states of the United States in connection
with the Exchange Offer; and
(xxiii) During the course of the preparation of the
Registration Statement or the Prospectus we participated in
conferences with directors and officers of the Company and
during the course of such preparation and the foregoing
conferences nothing came to our attention which gave us
reason to believe that either the Registration Statement or
the Prospectus (except as to the financial statements and
related schedules therein, as to which we express no opinion)
contains any untrue statement of a material fact or omits to
state 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 were made, not
misleading.
In addition to their opinions set forth above, ▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇▇ LLP shall provide a statement to the Company and to the Dealer Manager
to the effect that nothing has come to such counsel's attention that causes it
to believe that the Registration Statement and other Exchange Offer Materials
(other than the financial statements and notes thereto and supporting schedules
and other financial and statistical data, set forth therein or omitted
therefrom, as to which no advice is given), at the time the Registration
Statement was declared effective by the Commission, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
that the Prospectus and Exchange Offer Materials (other than the financial
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statements and notes thereto and supporting schedules and other financial and
statistical data, set forth therein or omitted therefrom, as to which no advice
is given), as of its date and at all times subsequent to the effectiveness and
up to and on the Closing Date included an untrue statement of a material fact or
omitted 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. With respect to such statement, such counsel may state that its
belief is based upon procedures set forth therein, but it is without independent
check or verification except as specified therein.
The opinions set forth above that any document is valid,
binding or enforceable according to its terms are qualified as to:
(i) limitations imposed by bankruptcy, insolvency,
reorganization, arrangement, fraudulent conveyance,
moratorium or other similar laws relating to or affecting the
rights and remedies of creditors generally;
(ii) rights to indemnification and contribution which
may be limited by applicable law or equitable principles; and
(iii) general principles of equity including without
limitation, the possible unavailability of specific
performance or injunctive relief, and limitations or rights
of acceleration, regardless of whether enforceability is
considered in a proceeding at law or in equity.
Moreover, such counsel expresses no opinion as to the
validity, binding effect or enforceability of any provisions of the Indenture
purporting to impose penalties or any increase in interest rate to the extent
they constitute a penalty or are otherwise contrary to public policy.
The foregoing opinions of such counsel shall be limited to the
laws of the United States of America, the State of California, the State of New
York (but only with respect to paragraphs (xii) and (xiii) and only insofar as
the opinions set forth in (xii) and (xiii) related to validity, binding effect
and enforceability of the agreements referred to therein) and the General
Corporation Law of the State of Delaware as such laws exist on the date such
opinion is delivered.
(e) You shall have received on the Closing Date an opinion of
Shearman & Sterling, in form and substance satisfactory to you, with respect to
the sufficiency of all such corporate proceedings and other legal matters
relating to this Agreement and the transactions contemplated hereby as you may
reasonably require, and the Company shall have furnished to such counsel such
documents as they may have requested for the purpose of enabling them to pass
upon such matters.
(f) You shall have received on the Closing Date, a letter,
dated as of the closing (or one business day prior thereto) as the case may be,
from Ernst and Young LLP addressed to you substantially in the form of that
draft letter dated on the Commencement Date.
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(g) You shall have received a certificate of the Company,
dated as of the Closing Date, signed by the Chief Executive Officer and Chief
Financial Officer of the Company, to the effect that, and you shall be satisfied
that:
(i) The representations and warranties of the Company
in this Agreement are true and correct in all material
respects, as if made on and as of the Closing Date or such
other date as of which any representation speaks, as the case
may be, and the Company has complied with all the agreements
and satisfied all the conditions on its part to be performed
or satisfied at or prior to the Closing Date, as the case may
be;
(ii) No stop order refusing or suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
are pending or threatened under the Securities Act;
(iii) When the Registration Statement became
effective and at all times subsequent thereto up to the date
of such certificate, the Registration Statement and the
Prospectus, and any amendments or supplements thereto,
contained all material information required to be included
therein by the Securities Act and the Rules and Regulations
thereunder or the Exchange Act and the applicable Rules and
Regulations of the Commission thereunder, as the case may be,
and in all material respects conformed to the requirements of
the Securities Act and the Rules and Regulations thereunder
or the Exchange Act and the applicable Rules and Regulations
of the Commission thereunder, as the case may be, the
Registration Statement, and any amendment or supplement
thereto, did not and does not include any untrue statement of
a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading, the Prospectus, and any amendment or
supplement thereto, did not and does not include any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading,
and, since the effective date of the Registration Statement,
there has occurred no event required to be set forth in an
amended or supplemented Prospectus which has not been so set
forth; and
(iv) Subsequent to the respective dates as of which
information is given in the Registration Statement and
Prospectus and up to the date of such certificate, and except
as disclosed therein, there has not been (a) any material
adverse change in the condition (financial or otherwise),
earnings, operations, business or business prospects of the
Company and its subsidiaries considered as one enterprise,
(b) any transaction that is material to the Company and its
subsidiaries considered as one enterprise, except
transactions entered into in the ordinary course of business,
(c) any obligation, direct or contingent, that is material to
the Company and its subsidiaries considered as one
enterprise, incurred by the Company or its subsidiaries,
except obligations incurred in the ordinary course of
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business, (d) any change in the capital stock or outstanding
indebtedness of the Company that is material to the Company
and its subsidiaries considered as one enterprise, (e) any
dividend or distribution of any kind declared, paid or made
on the capital stock of the Company; or (f) any loss or
damage (whether or not insured) to the property of the
Company or any of its subsidiaries which has been sustained
or will have been sustained and which has a Material Adverse
Effect or a material adverse effect on the ability of the
Company to perform its obligations under the Exchange Offer
or consummate the Exchange Offer.
(h) The Company shall have furnished to you such further certificates
and documents as you shall reasonably request (including certificates of
officers of the Company) as to the accuracy of the representations and
warranties of the Company herein, as to the performance by the Company of its
obligations hereunder and as to the other conditions concurrent and precedent to
your obligations hereunder.
(i) The Company shall cause FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. to be
added, prior to closing, to the Company's Director and Officer's insurance
policy such that up to $500,000 of FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc.'s
expenses pursuant to Section 7(a) shall be paid directly by such insurer.
All such opinions, certificates, letters and documents will be
in compliance with the provisions hereof only if they are reasonably
satisfactory to Dealer Manager's Counsel. The Company will furnish you with such
number of conformed copies of such opinions, certificates, letters and documents
as you shall reasonably request.
11. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold you harmless against any losses, claims, damages or
liabilities, joint or several, to which you may become subject under the
Securities Act, the Exchange Act or otherwise, specifically including, but not
limited to, losses, claims, damages or liabilities (or actions in respect
thereof) arising out of or based upon (i) any breach of any representation,
warranty, agreement or covenant of the Company herein contained, (ii) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, the Schedule TO or any Exchange Offer Materials, or any
amendments or supplements thereto, or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (iii) any untrue statement or alleged
untrue statement of any material fact contained in any Prospectus or any
amendment or supplement thereto, or the omission or alleged omission to state
therein a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, and agrees to
reimburse you for any legal or other expenses reasonably incurred by you in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company shall not be liable in
any such case to the extent that any such loss, claim, damage, liability or
action arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration Statement,
the Schedule TO, any Exchange Offer Materials, or the Prospectus, or any such
amendment or supplement thereto, in reliance upon, and in conformity with,
written information relating to you furnished to the Company by you,
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specifically for use in the preparation thereof.
The indemnity agreement in this Section 11(a) shall extend upon the
same terms and conditions to, and shall inure to the benefit of, you and your
affiliates and the partners, directors, officers, employees and agents of you
and your affiliates, and each person, if any, who controls you within the
meaning of the Securities Act or the Exchange Act. This indemnity agreement
shall be in addition to any liabilities, which the Company may otherwise have.
(b) You agree to indemnify and hold harmless the Company against any
losses, claims, damages or liabilities, joint or several, to which the Company
may become subject under the Securities Act, the Exchange Act or otherwise,
specifically including, but not limited to, losses, claims, damages or
liabilities (or actions in respect thereof) arising out of or based upon (i) any
breach of any representation, warranty, agreement or covenant of yours herein
contained, (ii) any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Schedule TO or any Exchange
Offer Materials, or any amendments or supplements thereto, including any
Incorporated Document, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (iii) any untrue statement or alleged untrue
statement of any material fact contained in the Prospectus or any amendment or
supplement thereto, or the omission or alleged omission to state therein a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in the case of
subparagraphs (ii) and (iii) of this Section 11(b) to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon, and in conformity with, written
information furnished to the Company by you specifically for use in the
Registration Statement, the Prospectus, the Schedule TO, any other Exchange
Offer Materials or any amendment or supplement thereto or in the preparation
thereof, and agree to reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such loss, claim, damage, liability or action.
The indemnity agreement in this Section 11(b) shall extend upon the
same terms and conditions to, and shall inure to the benefit of, each officer of
the Company who signed the Registration Statement and each director of the
Company, and each person, if any, who controls the Company within the meaning of
the Securities Act or the Exchange Act. This indemnity agreement shall be in
addition to any liabilities, which you may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 11 of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against any indemnifying
party under this Section 11, notify the indemnifying party in writing of the
commencement thereof but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 11. In case any such action is brought against
any indemnified party, and it notified the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it shall elect by written notice delivered to
the indemnified party promptly after receiving the aforesaid notice
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from such indemnified party, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party; provided, however, that if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of the indemnifying party"s election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 11 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel (together with appropriate
local counsel) approved by the indemnifying party representing all the
indemnified parties under Section 11(a) or 11(b) hereof who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party. In no event shall any
indemnifying party be liable in respect of any amounts paid in settlement of any
action unless the indemnifying party shall have approved the terms of such
settlement; provided that such consent shall not be unreasonably withheld. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnification
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all
liability on all claims that are the subject matter of such proceeding.
(d) In order to provide for just and equitable contribution in any
action in which a claim for indemnification is made pursuant to this Section 11
but it is judicially determined (by the entry of a final judgment or decree by a
court of competent jurisdiction and the expiration of time to appeal or the
denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 11 provides for
indemnification in such case, all the parties hereto shall contribute to the
aggregate losses, claims, damages or liabilities to which they may be subject
(after contribution from others) in such proportion so that you are responsible
for the portion represented by the percentage that the maximum Dealer Manager's
fee payable to the Dealer Manager pursuant to Section 6 hereof bears to the
value of the maximum number of Exchange Notes issuable pursuant to the Exchange
Offer, and the Company is responsible for the remaining portion, provided,
however, that (i) you shall not be required to contribute any amount in excess
of the amount by which the fee paid to you pursuant to Section 6 hereof exceeds
the amount of damages which you have been otherwise required to pay and (ii) no
person guilty of a fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who is not
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guilty of such fraudulent misrepresentation. The contribution agreement in this
Section 11(d) shall extend upon the same terms and conditions to, and shall
inure to the benefit of, each person, if any, who controls you or the Company
within the meaning of the Securities Act or the Exchange Act and each officer of
the Company who signed the Registration Statement and each director of the
Company.
(e) The parties to this Agreement hereby acknowledge that they are
sophisticated business persons who were represented by counsel during the
negotiations regarding the provisions hereof including, without limitation, the
provisions of this Section 11, and are fully informed regarding said provisions.
They further acknowledge that the provisions of this Section 11 fairly allocate
the risks in light of the ability of the parties to investigate the Company and
its business in order to assure that adequate disclosure is made in the
Registration Statement, the Schedule TO, any Exchange Offering Materials and the
Prospectus as required by the Securities Act and the Exchange Act.
12. Representations, Warranties, Covenants and Agreements to Survive
Delivery. All representations, warranties, covenants and agreements of the
Company and you herein or in certificates delivered pursuant hereto, and the
indemnity and contribution agreements contained in Section 11 hereof shall
remain operative and in full force and effect regardless of any investigation
made by or on behalf of you or any person controlling you within the meaning of
the Securities Act or the Exchange Act, or by or on behalf of the Company or any
of its officers, directors or controlling persons within the meaning of the
Securities Act or the Exchange Act, and shall survive the completion of the
Exchange Offer or termination of this Agreement.
13. Termination. (a) This Agreement shall terminate upon the earliest
to occur of (i) thirty days after the Expiration Date, (ii) any of the
conditions specified in Section 10 has not been fulfilled as of any date such
condition is required to be fulfilled pursuant to Section 10 (and the Dealer
Manager shall have notified the Company thereof), (iii) the date on which the
Company terminates or withdraws the Exchange Offer for any reason, or (iv) any
modification to the business terms of the Exchange Offer in the Company's sole
and absolute discretion that results in the Dealer Manager withdrawing pursuant
to Section 5 hereof, (the earliest to occur of clauses (i), (ii), (iii) or (iv)
being referred to as the "Termination Date").
(b) Notwithstanding termination of this Agreement pursuant to
subsection (a) above, the obligations of the parties pursuant to Sections 6, 7
and 11 shall survive any termination of this Agreement.
If you elect to terminate this Agreement as provided in this Section
13, you shall promptly notify the Company by telephone, telecopy or telegram, in
each case confirmed by letter.
14. Notices. All notices or communications hereunder, except as herein
otherwise specifically provided, shall be in writing and if sent to you shall be
mailed, delivered, or telecopied (and confirmed by letter) to you c/o
FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, telecopier number (415)
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781-0278, Attention: General Counsel; if sent to the Company, such notice shall
be mailed, delivered, telegraphed (and confirmed by letter) or telecopied (and
confirmed by letter) to ▇▇▇▇▇▇.▇▇▇ Corporation, Attention: Chief Executive
Officer, with a copy to ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ LLP.
15. Parties. This Agreement shall inure to the benefit of and be
binding upon the Dealer Manager and the Company and their respective executors,
administrators, successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person or entity, other
than the parties hereto and their respective executors, administrators,
successors and assigns, and the controlling persons within the meaning of the
Securities Act or the Exchange Act, officers and directors referred to in
Section 11 hereof, any legal or equitable right, remedy or claim in respect of
this Agreement or any provisions herein contained, this Agreement and all
conditions and provisions hereof being intended to be and being for the sole and
exclusive benefit of the parties hereto and their respective executors,
administrators, successors and assigns and said controlling persons and said
officers and directors, and for the benefit of no other person or entity. No
Holder of Existing Notes receiving Exchange Notes upon exchange of such Existing
Notes shall be construed a successor or assign by reason merely of such
exchange.
16. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York.
17. Counterparts. This Agreement may be signed in several counterparts,
each of which will constitute an original.
Please indicate your willingness to act as Dealer Manager on the terms
set forth herein and your acceptance of the foregoing provisions by signing in
the space provided below for that purpose and returning to us a copy of this
letter, whereupon this letter and your acceptance shall constitute a binding
agreement among us.
Very truly yours,
▇▇▇▇▇▇.▇▇▇ CORPORATION
By
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Name:
Title:
Accepted as of the date first above written:
FLEETBOSTON ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, INC.
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By
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Name:
Title:
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