General Cable Corporation Dealer Manager Agreement
Exhibit 1.1
EXECUTION VERSION
General Cable Corporation
November 9, 2005
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
1. General. General Cable Corporation, a Delaware corporation (the “Company”), plans to make
an offer to pay (the “Offer”) a cash premium of $7.88 (the “Premium”) to holders of the Company’s
outstanding 5.75% Series A Redeemable Convertible Preferred Stock (the “Securities”) who elect to
convert their Securities into shares of the Company’s common stock (the “Company Shares”) on the
terms and subject to the conditions set forth in the Preliminary Prospectus dated the date hereof
and included in the Registration Statement (as defined below) (and as amended or supplemented from
time to time prior to effectiveness of the Registration Statement, the “Preliminary Prospectus”),
and the related Letter of Transmittal (the “Letter of Transmittal”) dated the date hereof and filed
as Exhibit 99.1 to the Registration Statement.
The following materials to be used by the Company in connection with the Offer, as any of them
may be amended, modified or supplemented from time to time, are collectively referred to herein as
the “Offer Material”:
(a) The Company’s Registration Statement on Form S-4 filed with the Securities and Exchange
Commission (the “Commission”) on November 9, 2005 in accordance with the Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder (collectively, the “1933 Act”),
relating to the Offer and the issuance of the Company Shares in connection therewith (the
“Shares”). As used in this agreement (the “Dealer Manager Agreement” or this “Agreement”), the
term “Registration Statement” means such registration statement, including all exhibits, financial
statements, schedules or other information included or incorporated by reference therein, when it
becomes effective under the 1933 Act, and as amended or supplemented from time to time.
(b) The Company’s Prospectus relating to the Offer and the Shares. As used in this Agreement,
the term “Prospectus” means (i) any prospectus, as amended or supplemented on or prior to the
Settlement Date (including, but not limited to, the Preliminary Prospectus) that
the Company uses, prepares, files, distributes or approves in writing which is used to solicit
conversion of Securities in the Offer, or (ii) after the effectiveness of the Registration
Statement, the prospectus, if any, filed with the Commission pursuant to Rule 424(b) under the 1933
Act, in the form it was first filed, provided that such prospectus was used to solicit conversions
of Securities in the Offer on or prior to the Settlement Date. All references in this Agreement to
financial statements and schedules and other information which is “contained”, “included” or
“stated” in the Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such financial statements and
schedules and other information which is incorporated, or deemed to be incorporated, by reference
in the Registration Statement, any preliminary prospectus or the Prospectus, as the case may be.
Any reference herein to the Registration Statement or the Prospectus shall be deemed to refer to
and include any documents, financial statements and schedules incorporated, or deemed to be
incorporated, by reference therein pursuant to Form S-4 under the 1933 Act, as of the effective
date of the Registration Statement or the date of the Prospectus, as the case may be, and any
reference to any amendment or supplement to the Registration Statement or the Prospectus shall be
deemed to refer to and include any documents, financial statements and schedules filed after such
date under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (collectively, the “1934 Act”) and so incorporated, or deemed to be
incorporated, by reference (such incorporated documents, financial statements and schedules being
herein called the “Incorporated Documents”). For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement
to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to
its Electronic Data Gathering, Analysis and Retrieval system (“▇▇▇▇▇”).
(c) The Tender Offer Statement on Schedule TO (the “Schedule TO”) filed or to be filed by the
Company with the Commission pursuant to Rule 13e-4 under the 1934 Act and all amendments to the
Schedule TO (each an “amendment” and, collectively, the “Amendments”).
(d) Form W-9 and the Instructions thereto.
(e) The form of letter to Brokers, Dealers, Commercial Banks, Trust Companies and relating to
the Offer, and the form of letter to Clients of Registered Holders and The Depository Trust Company
Participants relating to the Offer.
(f) The Letter of Transmittal.
(g) Any other documents or materials whatsoever (including newspaper announcements and press
releases) relating to the Offer that are distributed or made available to the public or the holders
of the Securities by or at the direction of the Company in connection with the Offer.
2. Engagement as Dealer Manager. (a) The Company hereby retains ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (“▇▇▇▇▇▇▇ ▇▇▇▇▇”) to act as the exclusive dealer manager
with respect to the Offer (the “Dealer Manager”). On the basis of the representations and
warranties and agreements of the Company herein contained and
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subject to and in accordance with the terms and conditions hereof and of the Offer Material,
you hereby agree to act as Dealer Manager in connection with the Offer and in connection therewith,
you shall act in accordance with your customary practices and shall perform those services in
connection with the Offer that are customarily performed by investment banking firms in connection
with acting as a dealer manager of tender offers of a like nature, including, but not limited to,
soliciting conversions pursuant to the Offer and communicating generally regarding the Offer with
brokers, dealers, commercial banks and trust companies and other persons, including the holders of
the Securities. The Dealer Manager shall have no obligation to cause copies of the Offer Material
to be transmitted generally to the holders of the Securities.
(b) The Company acknowledges and agrees that the Dealer Manager has been retained hereunder to
act solely as a dealer manager. In such capacity, the Dealer Manager shall act hereunder as an
independent contractor and shall not be deemed the agent or fiduciary of the Company or any of its
affiliates, equity holders or creditors or of any other person, and any of the duties of the Dealer
Manager arising out of the Dealer Manager’s engagement pursuant to this Agreement shall be owed
solely to the Company. The Dealer Manager shall not be liable to the Company, its affiliates,
equity holders or creditors or to any other person for any act or omission on the part of, and
shall not be deemed to be the agent or fiduciary of, any broker or dealer (except that ▇▇▇▇▇▇▇
▇▇▇▇▇ may be deemed the agent or fiduciary of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated in
its capacity as broker or dealer), commercial bank or trust company and no such broker or dealer,
commercial bank or trust company shall be deemed to be acting as the agent or fiduciary of the
Dealer Manager (including, without limitation, for purposes of Section 10 of this Agreement).
Nothing contained in this Agreement shall constitute the Dealer Manager a partner of or joint
venturer with the Company.
3. Solicitation Material, Withdrawal. The Company agrees to furnish you with as many copies
as you may reasonably request of any Offer Material, and hereby authorizes you to use the Offer
Material in connection with the Offer. The Company agrees that, within a reasonable time prior to
using any Offer Material, it will submit copies of such material to you and your counsel and will
not use or publish any such material to which you reasonably object. The Company shall inform you
promptly after it receives notice or becomes aware of the happening of any event, or the discovery
of any fact, as a result of which the Offer Material 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, or that would affect the accuracy
or completeness of any representation or warranty contained in this Agreement if such
representation or warranty were being made immediately after the happening of such event or the
discovery of such fact.
In the event that (i) the Company uses or permits the use of any Offer Material (a) that has
not been submitted to you and your counsel for comment or (b) that has been so submitted and with
respect to which you or your counsel have made substantive comments, but which comments have not
resulted in a response reasonably satisfactory to you to reflect such substantive comments, (ii)
the Company shall have breached any of its representations, warranties, agreements, obligations or
covenants contained herein, (iii) there shall have occurred any material adverse change, or any
development or event involving a prospective material adverse change, in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or
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not arising in the ordinary course of business that, in your judgment, makes it impracticable
or inadvisable to carry out the Offer, the conversion of Securities pursuant thereto or the
performance of this Agreement, (iv) the Offer is terminated or withdrawn for any reason or (v) any
stop order, restraining order, injunction or denial of an application for approval has been issued
in connection with the Offer and not thereafter stayed or vacated or any proceeding, litigation or
investigation in connection with the Offer has been initiated, that, in either case in your
judgment, makes it impracticable or inadvisable to carry out the Offer, the conversion of
Securities pursuant thereto or the performance of this Agreement, then in any such case you shall
be entitled to withdraw as a Dealer Manager, by providing written notice of such withdrawal to the
Company, without any liability or penalty to you or any other Indemnified Party (as defined in
Section 10) and without loss of any right to the payment of all expenses payable in accordance with
Section 5 hereunder which have been incurred by you to the date of such withdrawal. If you
withdraw as a Dealer Manager in accordance with the foregoing provision, the reimbursement for your
expenses through the date of such withdrawal shall be paid to you promptly after such date.
Notwithstanding anything contained in this Agreement to the contrary, the Company may, in its
discretion, carry out the Offer after your withdrawal as Dealer Manager, provided that the Company
(y) amends or supplements the Offer Material to disclose that you have withdrawn as Dealer Manager
and (z) utilizes a means reasonably calculated to reach holders of the Securities to inform them of
such withdrawal.
4. Compensation. The Company agrees that it shall pay to the Dealer Manager a fee for its
services as Dealer Manager hereunder (assuming you have not withdrawn as Dealer Manager) and agrees
that such compensation will be as set forth in Schedule I hereto, and paid in cash on the
Settlement Date.
5. Expenses. The Company agrees that it will pay all of the following expenses related to the
Offer: (i) all fees and expenses relating to the preparation, printing, mailing and publishing of
the Offer Material, including the cost of preparation and filing of the Registration Statement and
any amendment thereto and the Schedule TO and any amendments thereto, and the cost of furnishing
copies thereof to the Dealer Manager, (ii) all fees and expenses of the Company’s counsel and
accountants and of the Conversion Agent and Information Agent (each as defined in Section 6), (iii)
all advertising charges, (iv) all fees and expenses of any depositary, transfer agent or other
person rendering services in connection with the Offer, (v) mailing and handling expenses incurred
by brokers and dealers (including you), commercial banks, trust companies and other nominees in
forwarding the Offer Material to their customers, (vi) the cost of the preparation, issuance and
delivery of the Shares, including any and all transfer and other taxes payable thereon, except as
otherwise stated in the Letter of Transmittal, (vii) all expenses in connection with the
qualification of the Shares for offer and delivery, (viii) all costs and expenses incident to the
additional listing of the Shares on the New York Stock Exchange, (ix) all fees and expenses of
Shearman & Sterling LLP as counsel to the Dealer Manager and (x) all other costs and expenses
incident to the performance of the obligations of the Company hereunder for which provision is not
otherwise made in this Section 5. All payments to be made by the Company pursuant to this Section
5 shall be made promptly after the expiration or termination of the Offer or withdrawal by you from
acting as Dealer Manager in accordance with Section 3 or, if later, promptly after the related fees
or expenses accrue and are invoiced. The Company shall perform its obligations set forth in this
Section 5 whether or not the Offer is commenced or the Company acquires any Securities pursuant to
the Offer or otherwise.
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6. Conversion Agent and Information Agent. (a) The Company will arrange for Mellon Investor
Services LLC to serve as conversion agent (the “Conversion Agent”) in connection with the Offer
and, as such, to advise you at least daily as to such matters relating to the Offer as you may
request. The Company shall provide you or cause The Depository Trust Company (“DTC”) to provide
you with copies of the records or other lists showing the names and addresses of, and number of
Securities held by, the holders of Securities as of a recent date and shall, from and after such
date, use its commercially reasonable efforts to cause you to be advised from day to day during the
pendency of the Offer of all transfers of Securities, such notification consisting of the name and
address of the transferor and transferee of any Securities and the date of such transfer. The
Company will arrange for ▇.▇. ▇▇▇▇ & Co., Inc. to serve as information agent (the “Information
Agent”) in connection with the Offer and, as such, to advise you as to such matters relating to the
Offer as you may reasonably request and to furnish you with any written reports concerning any such
information as you may reasonably request.
(b) The Company authorizes you to communicate with the Conversion Agent, the Information Agent
and with DTC in its capacity as depositary, with respect to matters relating to the Offer.
7. Representations, Warranties and Certain Agreements of the Company. The Company represents
and warrants to the Dealer Manager, and agrees with the Dealer Manager, as of the date hereof, as
of the date of commencement of the Offer pursuant to Section 13(e) of the 1934 Act (if different
than the date hereof) (the “Commencement Date”) and as of the date on which the Company issues the
Shares and Premium pursuant to the Offer (the “Settlement Date”) (unless another date is
specifically referenced in which case the representation and warranty shall speak as of such date):
(a) Compliance with Registration Requirements. The Company meets the requirements for
use of Form S-4 under the 1933 Act and, on or prior to the Commencement Date, has filed with the
Commission the Registration Statement and paid the applicable filing fees. As of the Settlement
Date, the Registration Statement and any post-effective amendment thereto will have become
effective under the 1933 Act and no stop order suspending the effectiveness of the Registration
Statement and any post-effective amendment thereto will have been issued under the 1933 Act and no
proceedings for that purpose will have been instituted or be pending or, to the knowledge of the
Company, will be contemplated by the Commission, and any request on the part of the Commission for
additional information will have been complied with.
At the respective times the Registration Statement and any post-effective amendments thereto
become effective and at the Settlement Date, the Registration Statement and any amendments thereto
will comply in all material respects with the requirements of the 1933 Act and will not contain an
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. Neither the Prospectus nor any
amendments and supplements thereto included or will include an untrue statement of a material fact
or omitted or will omit 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, except that the
foregoing does not apply to statements in or omissions from any of
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such documents based upon written information furnished to the Company by you or on your
behalf specifically for use therein.
Each preliminary prospectus and prospectus filed as part of the Registration Statement as
originally filed or as part of any amendment thereto, complied when so filed in all material
respects with the 1933 Act and each preliminary prospectus and the Prospectus prepared for use in
connection with the Offer will, at the time of such delivery, be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(b) Offer Material. A complete and correct copy of the Offer Material has been
furnished to you and your counsel or will be furnished no later than the Commencement Date. The
Offer Material, as then amended or supplemented (other than the Prospectus and the Registration
Statement, and any amendments and supplements thereto, which are covered in subsection (a) above),
complied and will comply in all material respects with the requirements of the 1933 Act and the
1934 Act, as applicable, and did not and will not contain an 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. Neither the Offer Material nor any amendments or supplements thereto
(other than the Prospectus and the Registration Statement, and any amendments and supplements
thereto, which are covered in subsection (a) above) included or will include an untrue statement of
a material fact or omitted or will omit 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,
except that the foregoing does not apply to statements in or omissions from any of such documents
based upon written information furnished to the Company by you or on your behalf specifically for
use therein.
(c) Incorporated Documents. The Incorporated Documents, at the time they were or
hereafter are filed with the Commission, complied and will comply in all material respects with the
requirements of the 1934 Act, and, when read together with the other information in the Prospectus,
at the date of the Prospectus and at the Settlement Date, did not and will not include an untrue
statement of a material fact or omit 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.
(d) Financial Statements. The financial statements of the Company, together with the
related schedules and notes to such financial statements, included in the Registration Statement
and the Prospectus present fairly the financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of operations and cash flows for the periods
shown, and except as otherwise disclosed in the Prospectus, such financial statements comply as to
form with the applicable accounting requirements of the 1933 Act and have been prepared in
conformity with generally accepted accounting principles (“GAAP”) in the United States applied on a
consistent basis throughout the periods involved (except as stated therein); and any schedules
included in the Registration Statement present fairly in accordance with GAAP the information
required to be stated therein. The selected historical financial data set forth under the caption
“Selected Historical Financial Information” in the Prospectus present fairly the information shown
therein and have been compiled as described in the Prospectus under the caption “Selected
Historical Financial Information.”
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(e) Independent Accountants. Deloitte & Touche LLP, who have certified certain
financial statements of the Company and its consolidated subsidiaries and delivered their report
with respect to the audited consolidated financial statements included in the Prospectus, are
independent public accountants with respect to the Company and its subsidiaries as required by the
1933 Act and the 1934 Act.
(f) No Material Adverse Change in Business. Since the respective dates as of which
information is given in the Registration Statement and the Prospectus, except as otherwise stated
therein, (i) there has not occurred any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the ordinary course of
business (a “Material Adverse Effect”), (ii) there have been no transactions entered into by the
Company or any of its subsidiaries, other than those in the ordinary course of business, which are
material to the Company and its subsidiaries considered as one enterprise, and (iii) except for
regular dividends on the Company’s common stock or preferred stock, in amounts per share that are
consistent with past practice or the applicable charter document or supplement thereto,
respectively, there has been no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(g) Good Standing of the Company. The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of Delaware, with power and
authority (corporate and other) to own its properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease of property or the conduct of
its business requires such qualification, except where the failure to so qualify would not result
in a Material Adverse Effect.
(h) Good Standing of Subsidiaries. Each “significant subsidiary” (as such term is
defined in Rule 1-02 of Regulation S-X promulgated under the ▇▇▇▇ ▇▇▇) of the Company (each, a
“Significant Subsidiary”) is listed on Schedule II hereto and has been duly incorporated and is an
existing corporation in good standing under the laws of the jurisdiction of its incorporation, with
power and authority (corporate and other) to own its properties and conduct its business as
described in the Prospectus; each other subsidiary of the Company has been duly incorporated or
formed, as the case may be, and is an existing corporation or other entity, as the case may be, in
good standing under the laws of the jurisdiction of its organization, with power and authority
(corporate and other) to own its properties and conduct its business as described in the
Prospectus, except where the failure of the foregoing to be correct would not have a Material
Adverse Effect; and each subsidiary of the Company is duly qualified to do business as a foreign
corporation or other entity in good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such qualification, except where the
failure to so qualify would not have a Material Adverse Effect; all of the issued and outstanding
capital stock or other equity interests of each subsidiary of the Company has been duly authorized
and validly issued and is fully paid and nonassessable; and the capital stock or other equity
interests of each subsidiary owned by the Company, directly or through subsidiaries, is owned free
from liens, encumbrances and defects, except for such liens, encumbrances and defects as are
disclosed in the Prospectus or as would not have a Material Adverse Effect.
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(i) Capital Stock. The capital stock of the Company conforms in all material respects
to the description thereof contained in the Prospectus and Offer Material; the outstanding shares
of capital stock of the Company have been duly and validly authorized and issued and are fully paid
and nonassessable; and none of such shares of capital stock was issued in violation of preemptive
or other similar rights of any securityholder of the Company.
(j) Authorization of this Agreement. This Agreement has been duly authorized,
executed and delivered by the Company.
(k) Authorization of Company Shares. The Company has duly authorized for issuance a
number of Company Shares sufficient to consummate the Offer pursuant to its terms and, when any
Shares are issued and delivered by the Company as provided in the Offer Material, such Shares will
be validly issued and fully paid and non-assessable; the Shares conform in all material respects to
the respective statements relating thereto contained in the Prospectus and Offer Material and the
issuance of the Shares by the Company is not subject to any preemptive or other similar rights of
any security holder of the Company.
(l) Absence of Defaults and Conflicts. The Company has full power and authority to
make and consummate the Offer in accordance with its terms and to execute, deliver and perform its
obligations under this Agreement. The (i) execution, delivery and performance by the Company of
this Agreement, (ii) making and consummation of the Offer by the Company (including, but not
limited to, the issuance and delivery of Shares thereunder), (iii) after amendment to the Company’s
subsidiaries’ senior secured credit agreements, obtaining and use by the Company of funds required
in connection with the Offer, (iv) use of the Offer Material and the filing of the Registration
Statement, the Prospectus and the Schedule TO, and any amendments or supplements thereto and (v)
consummation by the Company of the transactions contemplated by this Agreement and in the Offer
Material, in each case, have been duly authorized by all necessary corporate action and do not and
will not (y) whether with or without the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any assets, properties or operations
of the Company or any Significant Subsidiary pursuant to, any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant
or instrument to which the Company or any Significant Subsidiary is a party or is bound or to which
their property is subject (except for such conflicts, breaches, defaults, or Repayment Events or
liens, charges, or encumbrances that would not, individually or in the aggregate, result in a
Material Adverse Effect); or (z) violate (a) the provisions of the charter or by-laws (or other
similar document) of the Company or any Significant Subsidiary or (b) any law, statute, rule,
regulation, judgment, order, writ or decree applicable to the Company or any Significant Subsidiary
of any court, regulatory body, administrative agency, governmental body, arbitrator or other
authority, domestic or foreign, having jurisdiction over the Company or any Significant Subsidiary
or any of their assets, properties or operations, except in the case of clause (b), for such
violations that would not, individually or in the aggregate, result in a Material Adverse Effect.
As used herein, a “Repayment Event” means any event or condition which gives the holder of any
note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any Significant Subsidiary.
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(m) Absence of Labor Dispute. Except as disclosed in the Prospectus, no labor dispute
with the employees of the Company or any subsidiary exists or, to the knowledge of the Company, is
imminent, that would, singly or in the aggregate, result in a Material Adverse Effect.
(n) Absence of Proceedings. Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or involving the Company or any of its property or
assets, any of its subsidiaries or any of their respective properties or assets that would, singly
or in the aggregate, result in a Material Adverse Effect, or would materially and adversely affect
the ability of the Company to consummate the Offer or perform its obligations thereunder,
including, without limitation, its obligations under this Agreement, or which are otherwise
material in the context of the Offer; and to the Company’s knowledge, no such actions, suits or
proceedings are threatened or contemplated.
(o) Absence of Further Requirements. No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any court or governmental
authority or agency is required for the execution, delivery and performance by the Company of this
Agreement, in connection with the consummation of the Offer or the other transactions described in
the Offer Material by the Company, including but not limited to the issuance of and delivery of the
Shares, except such as have been already obtained or as may be required under the 1933 Act, the
1934 Act or state securities laws.
(p) Possession of Licenses and Permits. The Company and each of its Significant
Subsidiaries possess adequate permits, licenses, approvals, consents and other authorizations
(collectively, “Governmental Licenses”) issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now operated by them, except where
the failure so to possess would not, singly or in the aggregate, result in a Material Adverse
Effect; neither the Company nor any of its Significant Subsidiaries have received any notice of
proceedings relating to the revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would
result in a Material Adverse Effect and neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to the revocation or modification of any such
Governmental Licenses other than revocations or modifications that would not, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, result in a Material
Adverse Effect.
(q) Sufficient Funds. After appropriate amendment of the senior secured credit
agreements of the Company’s subsidiaries, the funds to be made available by the Company for
consummation of the Offer as described in the Offer Material will be available to the Company by
the Settlement Date and the Company will have sufficient authority under applicable law to use such
funds as described to enable the Company promptly to pay the Premium pursuant to the Offer as
described in the Prospectus.
(r) Insurance. The Company and each of the subsidiaries maintains insurance covering
its properties, operations, personnel and businesses as the Company deems adequate; such insurance
insures against such losses and risks to an extent which the Company believes to be adequate in
accordance with customary industry practice to protect the Company and the
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subsidiaries and their respective businesses; all such insurance is fully in force on the date
hereof and will be fully in force.
(s) Taxes. The Company and its subsidiaries have filed all federal or state income or
franchise tax returns required to be filed and have paid all taxes shown thereon as due and
required to be paid except for tax assessments, if any, as to which adequate reserves have been
provided in accordance with generally accepted accounting principles. There is no material tax
deficiency which has been asserted against the Company or any of its subsidiaries. All material
tax liabilities are adequately provided for on the books of the Company and its subsidiaries.
(t) Statistical and Market-Related Data. Any statistical and market-related data
included or incorporated by reference in the Prospectus are based on or derived from sources that
the Company believes to be reliable and accurate, and the Company has obtained the written consent
to the use of such data from such sources to the extent required.
(u) Officers’ Certificates. Any certificate signed by any officer of the Company or
any of its subsidiaries delivered to you or to your counsel shall be deemed a representation and
warranty by the Company to the Dealer Manager as to the matters covered thereby.
(v) Material Agreements. Neither the Company nor any of its subsidiaries is in
violation of, or in default in, the performance or observance of any obligation, agreement,
covenant or condition contained in any agreement or instrument that is included as an exhibit to
the Incorporated Documents, which the Company has filed with the Commission, except as disclosed in
the Prospectus or for such defaults that would not result in a Material Adverse Effect.
(w) Compliance with Environmental Laws. Except as described in the Registration
Statement and Prospectus and except as would not, singly or in the aggregate, result in a Material
Adverse Effect, (A) to the knowledge of the Company, neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products, asbestos-containing materials or mold (collectively, “Hazardous
Materials”) or to the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively, “Environmental Laws”), (B) the Company
and its subsidiaries have all permits, authorizations and approvals required under any applicable
Environmental Laws, and to the knowledge of the Company, are each in compliance with their
requirements, (C) there are no pending or, to the knowledge of the Company, threatened
administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings relating to any Environmental
Law against the Company or any of its subsidiaries and (D) to the
10
knowledge of the Company, there are no events or circumstances that would reasonably be
expected to form the basis of an order for clean-up or remediation, or an action, suit or
proceeding by any private party or governmental body or agency, against or affecting the Company or
any of its subsidiaries relating to Hazardous Materials or any Environmental Laws.
(x) Intellectual Property. The Company and each of its Significant Subsidiaries own
or possess, or can acquire on reasonable terms, adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures), trademarks, service marks, trade
names or other intellectual property (collectively, “Intellectual Property”) necessary to carry on
the business now operated by them, and neither the Company nor any of its Significant Subsidiaries
has received any notice of any infringement of or conflict with asserted rights of others with
respect to any Intellectual Property, which infringement or conflict (if the subject of any
unfavorable decision, ruling or finding) or invalidity or inadequacy, singly or in the aggregate,
would result in a Material Adverse Effect.
(y) ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002. Except as described in the Registration Statement and
the Prospectus, there is and has been no failure on the part of the Company and its subsidiaries or
any of the officers and directors of the Company or any of its subsidiaries, in their capacities as
such, to comply in all material respects with the provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and
the rules and regulations in connection therewith applicable to the Company or its subsidiaries,
including, without limitation, Section 402 thereof related to loans and Sections 302 and 906
thereof related to certifications.
(z) Internal Controls. Except as described in the Registration Statement and the
Prospectus, the Company and each of its Significant Subsidiaries, considered as one enterprise,
maintain a system of internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability; (iii) access to assets is permitted only
in accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(aa) Disclosure Controls and Procedures. The Company has established and maintains
disclosure controls and procedures (as such terms are defined in Rule 13a-15(e) and 15d-15(e) under
the ▇▇▇▇ ▇▇▇) designed to ensure that material information relating to the Company, including its
subsidiaries, is made known to the Company’s Chief Executive Officer and its Chief Financial
Officer by others within those entities; such disclosure controls and procedures are effective to
perform the functions for which they were established. The Company’s auditors and the audit
committee of the board of directors of the Company have been advised of: (i) any significant
deficiencies and material weaknesses in the design or operation of internal control over financial
reporting which are likely to adversely affect the Company’s ability to record, process, summarize
and report financial information and (ii) any fraud, whether or not material, that involves
management or other employees who have a significant role in the Company’s internal control over
financial reporting, in each case, that have arisen since the date of the certifications included
in the Company’s most recent quarterly report on Form 10-Q.
11
Since the date of the most recent evaluation of such disclosure controls and procedures, there
have been no significant changes in internal controls or in other factors that could significantly
affect internal controls, including any corrective actions with regard to significant deficiencies
and material weaknesses.
(bb) Investment Company Act. The Company is not and, after giving effect to the
issuance of the Shares in connection with the Offer, will not be an “investment company” required
to be registered under the Investment Company Act of 1940, as amended.
(cc) ERISA Compliance. The Company and each of its Significant Subsidiaries,
considered as one enterprise, has fulfilled its obligations, if any, under the minimum funding
standards of Section 302 and the regulations and published interpretations thereunder of the United
States Employee Retirement Income Security Act of 1974, as amended (“ERISA”), with respect to each
“pension plan” (as defined in Section 3(2) of ERISA and such regulations and published
interpretations) in which employees of the Company and its Significant Subsidiaries are eligible to
participate and, except as described in the Prospectus, each such plan is in compliance in all
material respects with the presently applicable provisions of ERISA and such regulations and
published interpretations; the Company and its Significant Subsidiaries, considered as one
enterprise, have not incurred any unpaid liability to the Pension Benefit Guaranty Corporation
(other than for the payment of premiums in the ordinary course) or to any such plan under Title IV
of ERISA.
(dd) Listing. The Shares have been approved for listing on the New York Stock
Exchange, subject to official notice of issuance.
8. Additional Agreements. (a) The Company shall notify you promptly and, if requested, shall
notify you in writing, after it receives notice thereof of (i) when the Registration Statement has
become effective and when any Prospectus is mailed (or otherwise sent) for filing pursuant to Rule
424 under the 1933 Act, (ii) the receipt of any comments with respect to the Offer Material from
the Commission, (iii) any request by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus or for additional information, (iv) the filing of
any post-effective amendment to the Registration Statement, (v) the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or any post-effective
amendment thereto or of any order preventing or suspending the use of the Preliminary Prospectus or
any Offer Material, or of the suspension of the qualification of the Securities for offering or
sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such
purposes, (vi) the occurrence of any event that could cause the Company to withdraw or terminate
the Offer or would permit the Company to exercise any right not to accept Securities tendered for
conversion, (vii) any proposal or requirement to make, amend or supplement any other Offer
Material, (viii) the commencement of any material litigation or the issuance of any order or the
taking of any other action by any administrative or judicial tribunal or other governmental agency
or instrumentality concerning the Offer (and, if in writing, will furnish you a copy thereof), (ix)
the issuance by any state securities commission or other regulatory authority of any order
suspending the qualification or the exemption from qualification of the Shares under state
securities or blue sky laws or the initiation or threatening of any proceeding for that purpose,
(x) the occurrence of any event, or the discovery of any fact, the occurrence or existence of which
would reasonably be expected to
12
(a) cause the Company to amend, withdraw or terminate the Offer, (b) cause any representation
or warranty contained in this Agreement to be untrue or inaccurate or (c) permit the Company to
exercise any right not to exchange the Securities tendered for conversion under the Offer (and the
Company will so advise you before such rights are exercised) and (xi) any other information
relating to the Offer which you may from time to time reasonably request.
The Company agrees that if any event occurs or condition exists as a result of which the Offer
Material (other than the Registration Statement and the Prospectus, which are discussed in Section
8(g) below) would include an untrue statement of a material fact, or omit to state any material
fact necessary to make the statements therein, in light of the circumstances existing when the
Offer Material is delivered to a holder of Securities, not misleading, or if, in the opinion of the
Company, after consultation with you, it is necessary at any time to amend or supplement the Offer
Material to comply with applicable law, the Company shall immediately notify you, prepare an
amendment or supplement to the Offer Material that will correct such statement or omission or
effect such compliance and supply such amended or supplemented Offer Material to you.
(b) The Company will promptly effect the filings necessary pursuant to Rule 424 and will take
such steps as it deems necessary to ascertain promptly whether the Prospectus transmitted for
filing under Rule 424 was received for filing by the Commission and, in the event that it was not,
it will promptly file the Prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, will make every reasonable effort to
obtain the lifting thereof at the earliest practicable moment.
The Company will file promptly all reports or information statements required to be filed with
the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act subsequent to the date
of the Preliminary Prospectus and for so long as the delivery of a prospectus is required in
connection with the Offer. The Company will promptly file with the Commission on the Commencement
Date a Schedule TO and will promptly file as required any and all necessary Amendments.
(c) On the Commencement Date, the Company will cause to be delivered to each registered holder
of the Securities, as soon as practicable, a copy of the Preliminary Prospectus and Letter of
Transmittal and all other appropriate Offer Material. Thereafter, to the extent practicable until
the expiration or termination of the Offer, the Company will use its reasonable efforts to cause
copies of such material to be mailed to each person who becomes a registered holder of any
Securities.
(d) The Company will give you notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b) of the 1933 Act regulations), or any
amendment, supplement or revision to either the prospectus included in the Registration Statement
at the time it became effective or to the Prospectus, whether pursuant to the 1933 Act, the 1934
Act or otherwise, will furnish you with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file or use any such
document to which you shall reasonably object in writing.
13
(e) The Company has furnished or will deliver to you, without charge, one conformed copy of
the Registration Statement as originally filed and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein and documents incorporated or deemed to be
incorporated by reference therein) and conformed copies of all consents and certificates of
experts, and will also deliver to you, without charge, as many conformed copies of the Registration
Statement as originally filed and of each amendment thereto (without exhibits) as you may
reasonably request. The Company further agrees that the Registration Statement and each amendment
thereto furnished to you will be identical to any electronically transmitted copies thereof filed
with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(f) The Company will deliver to you, without charge, as many copies of the Prospectus as you
may reasonably request, and the Company hereby consents to the use of such copies for purposes
permitted by the 1933 Act. The Company will furnish to you, without charge, during the period when
the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the Prospectus as you may reasonably request. The Company further agrees that the
Prospectus and any amendments or supplements thereto furnished to you will be identical to any
electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to
the extent permitted by Regulation S-T.
(g) The Company will comply with the 1933 Act and the 1934 Act so as to permit the completion
of the distribution of the Shares as contemplated in this Agreement and in the Registration
Statement and the Prospectus. If at any time when the Prospectus is required by the 1933 Act or
the 1934 Act to be delivered in connection with the distribution of the Shares, any event shall
occur or condition shall exist as a result of which it is necessary, in the opinion of your counsel
or counsel for the Company, to amend the Registration Statement in order that the Registration
Statement will not contain an 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 or to
amend or supplement the Prospectus in order that the Prospectus will not include an untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at the time it is delivered to a
holder of Securities, not misleading, or if it shall be necessary, in the opinion of such counsel,
at any such time to amend the Registration Statement or amend or supplement the Prospectus in order
to comply with the requirements of the 1933 Act, the Company will promptly prepare and file with
the Commission, subject to the terms of this Agreement, such amendment or supplement as may be
necessary to correct such statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Company will furnish to you, without charge, such
number of copies of such amendment or supplement as you may reasonably request.
(h) The Company will use its best efforts, in cooperation with you and in accordance with Rule
13e-4 of the 1934 Act, to qualify the Shares for offering and sale under the applicable securities
laws of such states and other jurisdictions (domestic or foreign) as you and the Company may
reasonably designate and to maintain such qualifications in effect for a period of not less than
one year from the date of this Agreement; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so qualified or to
14
subject itself to taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. In each jurisdiction in which the Shares have been so qualified, the Company
will file such statements and reports as may be required by the laws of such jurisdiction to
continue such qualification in effect for a period of not less than one year from the date of this
Agreement.
(i) The Company will not, directly or indirectly, distribute the Offer Material to any holder
of Securities in or from any jurisdiction outside the United States, or otherwise extend the Offer
to any holder of Securities residing in any jurisdiction outside the United States, except under
circumstances that will result in compliance with the applicable laws and regulations of such
jurisdiction.
(j) The Company will timely file such reports pursuant to the 1934 Act as are necessary in
order to make generally available to its security holders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(k) On or prior to the Commencement Date, the Company will have entered into agreements with
the Information Agent and the Conversion Agent and will have made appropriate arrangements, to the
extent applicable, with DTC or any other “qualified” securities depositary to allow for the
book-entry movement of the tendered Securities between depositary participants and the Conversion
Agent.
9. Documentary Covenants. (a) The Company covenants that it shall, on the Commencement
Date, deliver or cause to be delivered to you each of (i) the signed opinions, dated the
Commencement Date, of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President and General Counsel of the Company
and Blank Rome LLP, special counsel for the Company, in the forms set forth in Exhibits A and B
hereto, (ii) a certificate of the Treasurer of the Company and the chief financial officer or chief
accounting officer of the Company, dated as of the Commencement Date, to the effect that, (y) the
Shares have been duly approved for listing on the New York Stock Exchange, subject to official
notice of issuance and (z) since the date of the most recent financial statements included in the
Registration Statement and the Prospectus, there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise (other than as set forth in the
Prospectus), (iii) a certificate, dated the Commencement Date, of the Secretary of the Company in
form and substance reasonably satisfactory to you and (iv) a letter from Deloitte & Touche LLP,
dated as of the Commencement Date, in form and substance reasonably satisfactory to you, containing
statements and information of the type ordinarily included in accountants’ “comfort letters” with
respect to the financial statements and certain financial information contained in the Registration
Statement and the Prospectus.
(b) Unless you have previously withdrawn as Dealer Manager, the Company covenants that it
shall, on the Settlement Date, deliver or cause to be delivered to you each of the documents listed
in clauses (i) through (v) below and that it will not accept Securities tendered for conversion
pursuant to the Offer unless on such Settlement Date: (i) the Company shall have delivered or
caused to be delivered to you the signed opinions of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President and
General Counsel of the Company and of Blank Rome LLP, special counsel
15
for the Company, in the forms set forth in Exhibits C and D hereto, (ii) the Company shall
have delivered or caused to be delivered written evidence that the Shares are duly authorized for
listing on the New York Stock Exchange, (iii) the Company shall have delivered or caused to be
delivered to you a certificate of the Treasurer of the Company and the chief financial officer or
chief accounting officer of the Company, dated as of the Settlement Date, to the effect that (w)
since the date of this Agreement, there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise (other than as set forth in the Prospectus), (x)
the Company’s representations and warranties in this Agreement are true and correct with the same
force and effect as though expressly made at and as of the Settlement Date, and (y) the Company has
complied with all agreements and taken all actions to be performed or satisfied by the Company
pursuant to this Agreement at or prior to the Settlement Date, and (z) the Registration Statement
has been declared effective by the Commission and no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have been instituted,
are pending or, to the best of such officer’s knowledge, are threatened by the Commission, (iv) the
Company shall have delivered or caused to be delivered to you a certificate, dated the Settlement
Date, of the Secretary of the Company in form and substance reasonably satisfactory to you and (v)
the Company shall have delivered or have caused to be delivered to you a letter from Deloitte &
Touche LLP, dated as of the Settlement Date, to the effect that Deloitte & Touche LLP reaffirms the
statements made in the letter furnished pursuant to subsection (a)(iv) of this Section 9, except
that the specified date referred to shall be a date not more than three business days prior to the
Settlement Date.
10. Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless
the Dealer Manager and the affiliates and respective directors, officers, employees,
representatives and agents of the Dealer Manager and each person who controls the Dealer Manager
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act (the Dealer Manager
and each such person being an “Indemnified Party”) as follows:
(i) from and against any and all losses, claims, damages, liabilities and reasonable
expenses whatsoever, joint or several, as incurred, to which such Indemnified Party may
become subject under any applicable federal or state law, or otherwise, and related to,
arising out of, or based on (A) any untrue statement or alleged untrue statement of a
material fact contained in the Offer Material, as amended or supplemented, or the omission
or alleged omission therefrom of a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which they were
made, not misleading, (B) any breach by the Company of any of its representation, warranties
or agreements contained herein, (C) the Company’s failure to make or consummate the Offer or
the withdrawal, rescission, termination, amendment or extension of the Offer or any other
failure on the Company’s part to comply with the terms and conditions contained in the Offer
Material, (D) any of the transactions contemplated in the Offer Material or the engagement
of the Dealer Manager pursuant to, and the performance by the Dealer Manager of the services
contemplated by, this Agreement except in the case of this clause (D) to the extent that any
losses, claims, damages, liabilities or expenses are found in a final judgment by a court of
competent jurisdiction to have resulted primarily from the gross negligence, willful
misconduct or bad faith of an Indemnified Party, or (E) any action taken or
16
omitted to be taken by an Indemnified Party with the consent of the Company or in
conformity with the instructions or actions or omissions of the Company;
(ii) from and against any and all losses, claims, damages liabilities and reasonable
expenses whatsoever, as incurred, to the extent of the aggregate amount paid in settlement
of any litigation, or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever related to, arising out of or based on
any matter described in subparagraph (i) above, provided that, subject to Section 10(g)
below, any such settlement is effected with the written consent of the Company; and
(iii) from and against any and all reasonable expenses whatsoever, as incurred
(including the fees and disbursements of counsel chosen by you), reasonably incurred in
investigating, preparing or defending against any litigation, or investigation or proceeding
by any governmental agency or body, commenced or threatened, or any claim whatsoever related
to, arising out of or based on any matter described in (i) above, whether or not such
Indemnified Party is a party and whether or not such claim, action or proceeding is
initiated or brought by or on behalf of the Company, to the extent that any such expense is
not paid under subparagraph (i) or (ii) above;
provided, however, that the Company shall not be liable under clause (A) of subparagraph (i) above
to the extent that any losses, claims, damages, liabilities or expense arise out of any untrue
statement or omission or alleged untrue statement or omission made in the Offer Material in
reliance upon and in conformity with written information furnished to the Company by the Dealer
Manager expressly for use in the Offer Material, it being understood and agreed that the only such
information furnished by the Dealer Manager consists of such Dealer Manager’s legal and marketing
name.
(b) The Company agrees that no Indemnified Party shall have any liability (whether direct or
indirect, in contract or tort or otherwise) to the Company, its security holders or creditors
relating to or arising out of the engagement of the Dealer Manager pursuant to, or the performance
by the Dealer Manager of the services contemplated by, this Agreement except to the extent that any
loss, claim, damage, liability or expense is found in a final judgment by a court of competent
jurisdiction to have resulted from the gross negligence, willful misconduct or bad faith of the
Dealer Manager.
(c) If the indemnification provided for in Section 10(a) hereof is for any reason unavailable
to or insufficient to hold harmless an Indemnified Party in respect of any losses, liabilities,
claims, damages or expenses referred to therein, then the Company agrees to contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such
Indemnified Party, as incurred, (i) in such proportion as is appropriate to reflect the relative
benefits to the Company on the one hand and to the Dealer Manager on the other hand from the Offer
(whether or not consummated) or (ii) if, but only if, the allocation provided by clause (i) is for
any reason held unenforceable, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of the Company on the
one hand and of the Dealer Manager on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses,
17
as well as any other relevant equitable considerations. The relative benefits to the Company
on the one hand and the Dealer Manager on the other hand, in connection with the Offer (whether or
not consummated) shall be deemed to be in the same proportion as the total value paid or proposed
to be paid to holders of the Securities pursuant to the Offer (whether or not consummated) bears to
the fees actually received by the Dealer Manager pursuant to Section 4 hereunder. The relative
fault of the Company on the one hand and the Dealer Manager on the other hand shall be determined
by reference to, among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Dealer Manager and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or omission. The
Company and the Dealer Manager agree that it would not be just and equitable if contribution
pursuant to this Section 10(c) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred to above in this
Section 10(c). The aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an Indemnified Party and referred to above in this Section 10(c) shall be deemed to include any
legal or other expenses reasonably incurred by such Indemnified Party in investigating, preparing
or defending against any litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged
untrue statement or omission or alleged omission; provided, however, that to the extent permitted
by applicable law, in no event shall the Dealer Manager be required to contribute any amount which,
in the aggregate, exceeds the aggregate fees received by such Dealer Manager under Section 4 of
this Agreement.
(d) In the event an Indemnified Party is requested or required to appear as a witness in any
action brought by or on behalf of or against the Company, the Company agrees to reimburse such
Indemnified Party for all reasonable expenses as incurred by such Indemnified Party in connection
with such Indemnified Party’s appearing and preparing to appear as such a witness, including,
without limitation, the reasonable fees and disbursements of its legal counsel, and to compensate
such Indemnified Party in an amount to be mutually agreed upon.
(e) Promptly after receipt by an Indemnified Party of written notice of any claim or
commencement of an action or proceeding with respect to which indemnification or contribution may
be sought hereunder, such Indemnified Party shall notify the Company in writing of such claim or of
the commencement of such action, claim or proceeding, but failure so to notify the Company will not
relieve the Company from any liability which it may have hereunder to such Indemnified Party except
to the extent that the Company has been materially prejudiced by such failure, and in any event
will not relieve the Company from any other liability that it may have to such Indemnified Party.
In the event of any such claim, action or proceeding, if such Indemnified Party shall notify the
Company of the commencement thereof, the Company shall be entitled to participate therein and to
the extent it so wishes, assume the defense thereof, with counsel reasonably satisfactory to such
Indemnified Party, and shall pay the fees and expenses of such counsel; provided, however, (i) if
the Company fails to assume such defense in a timely manner or (ii) if there exists or may exist an
actual or potential conflict of interest that would make it inappropriate in the reasonable
judgment of such Indemnified Party for the same counsel to represent both the Indemnified Party and
the Company, then such Indemnified Party shall be entitled to retain its own counsel at the expense
of the Company provided, further, however, that the Company shall not be required to pay the fees
and expenses of more than one
18
separate counsel (in addition to any local counsel) for all Indemnified Parties in any
jurisdiction in respect of any single claim, action or proceeding. In respect of any claim, action
or proceeding the defense of which shall have been assumed by the Company in accordance with the
foregoing, each Indemnified Party shall have the right to participate in such litigation and to
retain its own counsel at its own expense.
(f) The Company agrees that, without your prior written consent, it will not settle,
compromise or consent to the entry of any judgment in or with respect to any pending or threatened
claim, action, investigation or proceeding in respect of which indemnification or contribution
could be sought under this Section 10 (whether or not you or any other Indemnified Party is an
actual or potential party to such claim, action, investigation or proceeding), unless such
settlement, compromise or consent (i) includes an unconditional release of each Indemnified Party
from all liability arising out of such claim, action, investigation or proceeding and (ii) does not
include a statement as to, or an admission of, fault, culpability or a failure to act by or on
behalf of an Indemnified Party.
(g) The Company shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent the Company agrees to indemnify the Indemnified
Party from and against any loss or liability by reason of such settlement. Notwithstanding the
foregoing, if at any time an Indemnified Party shall have requested that the Company reimburse the
Indemnified Party for fees and expenses of counsel, the Company agrees that it shall be liable for
any settlement of the nature contemplated by Section 10(a)(ii) effected without its written consent
if (i) such settlement is entered into more than 45 days after receipt by the Company of the
aforesaid request, (ii) the Company shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) the Company shall not have
reimbursed such Indemnified Party in accordance with such request prior to the date of such
settlement.
(h) The rights of any Indemnified Party under this Agreement shall be in addition to and not
in limitation of any rights that any Indemnified Party may have at common law or otherwise.
11. Survival of Indemnities, Representations, Warranties, Etc. The indemnity and contribution
agreements contained in Section 10, the provisions of Sections 4 and 5 and the representations and
warranties of the Company set forth in this Agreement shall remain operative and in full force and
effect, regardless of (i) any failure to commence, or the withdrawal, termination or consummation
of, the Offer or the termination or assignment of this Agreement, (ii) any investigation made by or
on behalf of the Company or any Indemnified Party and (iii) any withdrawal by you pursuant to
Section 3.
12. Severability of Provisions. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law, or public policy, all other provisions
of this Agreement shall nevertheless remain in full force and effect so long as the economic or
legal substance of the agreements contained herein is not affected in any manner adverse to any
party. Upon such determination that any term or provision is invalid, illegal or unenforceable,
the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in a mutually acceptable manner in
19
order that the agreements contained herein may be performed as originally contemplated to the
fullest extent possible.
13. Counterparts. This Agreement may be executed and delivered (including by facsimile
transmission) in two or more separate counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
14. Parties In Interest. This Agreement, including any right to indemnity or contribution
hereunder, shall inure to the benefit of and be binding upon the Company, the Dealer Manager and
the other Indemnified Parties (as defined in Section 10) and their respective successors and
assigns. Nothing in this Agreement is intended, or shall be construed, to give to any other person
or entity any right hereunder or by virtue hereof.
15. Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
16. References to the Dealer Manager. The Company agrees that any reference to the Dealer
Manager in the Registration Statement, Prospectus or Offer Material, or in any other release or
communication relating to the Offer, is subject to your prior approval, which approval shall not be
unreasonably withheld or delayed.
17. Notices. All notices and other communications required or permitted to be given under
this Agreement shall be in writing and shall be deemed given when so delivered in person, by
overnight courier, by facsimile transmission (with receipt being confirmed by telephone or by
automatic transmission report) or two business days after being sent by registered or certified
mail (postage prepaid, return receipt requested), as follows:
| (a) | If to the Dealer Manager: | |||
| ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., | ||||
| ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ | ||||
| Incorporated | ||||
| ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||||
| ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ | ||||
| Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇ | ||||
| Attention: Office of General Counsel | ||||
| (b) | If to the Company: | |||
| General Cable Corporation | ||||
| ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||||
| ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||||
| Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇ | ||||
| Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Executive Vice President, Chief Financial Officer and Treasurer |
20
18. Securities Positions. The Company acknowledges that it has no objection to the fact that,
in the course of trading activities, the Dealer Manager may from time to time have positions in,
and, in accordance with applicable law, buy or sell securities of, the Company and its affiliates.
19. Tombstone. You may place an announcement in such newspapers and periodicals as you may
choose, stating that the Dealer Manager is acting or has acted as exclusive dealer manager to the
Company in connection with the Offer. Any such announcement shall be at your sole option and
expense and subject to the reasonable approval of the Company.
20. Waiver of Right to Trial by Jury and Applicable Law. The Dealer Manager and the Company
each waives any right to trial by jury in any action, claim, suit or proceeding with respect to the
engagement of the Dealer Manager hereunder.
21. Miscellaneous. The descriptive headings contained in this Agreement are incorporated for
convenience of reference only and shall not affect in any way the meaning or interpretation of this
Agreement.
22. Entire Agreement; Amendment. This Agreement supersedes all prior agreements and
undertakings, both written and oral, of the parties hereto, or any of them, with respect to the
subject matter hereof and constitutes the entire understanding of the parties hereto with respect
to the subject matter hereof. This Agreement may not be waived, amended or modified except in
writing signed by each party to be bound hereby.
[SIGNATURE PAGES FOLLOW]
21
Please indicate your willingness to act as the 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 shall constitute a binding
agreement among us.
| Very truly yours, GENERAL CABLE CORPORATION |
||||
| By: | /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
| ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||||
| Executive Vice President, Chief
Financial Officer and Treasurer |
||||
Accepted as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.,
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:
|
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||
| Title: Managing Director | ||||
Schedule I
COMPENSATION
For each $50 par value of Securities that is validly tendered for conversion pursuant to the
Offer and not withdrawn, the Dealer Manager shall receive $0.25 from the Company.
S I-1
Schedule II
SIGNIFICANT SUBSIDIARIES
| Jurisdiction of | ||
| Name | Incorporation | |
Dominion Wire and Cables Ltd.
|
Fiji | |
General Cable Canada, Ltd.
|
Ontario | |
General Cable Celcat Energia e Telecommunicaciones SA
|
Portugal | |
General Cable Company
|
Nova Scotia | |
General Cable de Latinoamerica, S.A. de C.V.
|
Mexico | |
General Cable de Mexico del Norte, S.A. de C.V.
|
Mexico | |
General Cable Holdings (Spain) SRL
|
Spain | |
General Cable Holdings de Mexico, S.A. de C.V.
|
Mexico | |
General Cable Holdings New Zealand
|
New Zealand | |
General Cable Industries, Inc.
|
Delaware | |
General Cable Industries, LLC
|
Delaware | |
General Cable Investments, SGPS SA.
|
Madeira | |
General Cable New Zealand Limited
|
New Zealand | |
General Cable Overseas Holdings, Inc.
|
Delaware | |
General Cable Technologies Corporation
|
Delaware | |
GK Technologies, Inc.
|
New Jersey | |
Grupo General Cable Sistemas, SA.
|
Spain | |
Marathon Manufacturing Holdings, Inc.
|
Delaware | |
Telmag Internacional, S.A. de C.V.
|
Mexico |
S II-1
Exhibit A
FORM OF OPINION OF ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL OF THE COMPANY
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL OF THE COMPANY
TO BE DELIVERED PURSUANT TO SECTION 9(a)
(To be dated the Commencement Date)
(To be dated the Commencement Date)
(a) The Company has been duly incorporated under the laws of the State of Delaware and is in
good standing and has a legal corporate existence with corporate power and authority to own, lease
and operate its properties and conduct its business as described in the Prospectus, to enter into
and perform its obligations under the Dealer Manager Agreement and to make and consummate the
Offer;
(b) Each Significant Subsidiary organized in a state in the United States (“U.S. Significant
Subsidiary”) has been duly incorporated and is in good standing and has legal corporate existence
under the laws of the jurisdiction of its incorporation, and has corporate power and authority to
own, lease and operate its properties and to conduct its business as described in the Prospectus;
except as otherwise disclosed in the Registration Statement and the Prospectus, all of the issued
and outstanding capital stock of each U.S. Significant Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and is owned of record and, to the best of such
counsel’s knowledge, beneficially, by the Company, directly or indirectly through subsidiaries of
the Company, free and clear of any lien, encumbrance or defect; and none of the outstanding shares
of capital stock of any U.S. Significant Subsidiary was issued in violation of the preemptive or,
to the best of such counsel’s knowledge, similar rights of any securityholder of such U.S.
Significant Subsidiary;
(c) All descriptions in the Registration Statement of written contracts and other documents to
which the Company is a party are accurate in all material respects; to the best of such counsel’s
knowledge, there are no franchises, contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described or referred to in the Registration Statement
or to be filed as exhibits thereto other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto
are correct in all material respects;
(d) Other than the Registration Rights Agreement dated as of November 24, 2003 concerning the
Securities, there are no contracts, agreements or understandings known to such counsel between the
Company and any person granting such person the right to require the Company to file a registration
statement under the 1933 Act with respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the 1933 Act;
(e) After obtaining an amendment to the senior secured credit agreements of the Company’s
subsidiaries with respect to the following clauses (ii), (iii) and (v), the
A-1
(i) performance by the Company of the Dealer Manager Agreement, (ii) making and consummation
of the Offer by the Company (including but not limited to the issuance and delivery of Shares
thereunder), (iii) obtaining and use by the Company of funds required in connection with the Offer,
(iv) use of the Offer Material and the filing of the Registration Statement, the Prospectus and the
Schedule TO, and any amendments or supplements thereto and (v) consummation by the Company of the
transactions contemplated by the Dealer Manager Agreement, in each case, have been duly authorized
by all necessary corporate action on the part of the Company and (A) will not result in any
violation of the charter or by-laws of the Company or any of its U.S. Significant Subsidiaries, (B)
will not result in a breach or violation of any of the terms or provisions of, or constitute an
event of default (or an event which with notice or lapse of time or both would become an event of
default) under, or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its U.S. Significant Subsidiaries under, (a) any
agreement or instrument that is listed as an exhibit to the Company’s Annual Report on Form 10-K,
as amended, for the year ended December 31, 2004 or the Company’s Quarterly Reports on Form 10-Q
and Current Reports on Form 8-K filed thereafter or (b) any existing applicable law, rule or
regulation, or any judgment, order or decree known to such counsel, of any government, governmental
or regulatory instrumentality or agency or court, having jurisdiction over the Company or any of
its U.S. Significant Subsidiaries or any of their properties or assets, except in the case of
clause (B), such breaches, violations, defaults, rights, creations and impositions which
individually or in the aggregate would not result in a Material Adverse Effect;
(f) The Dealer Manager Agreement has been duly authorized, executed and delivered by the
Company;
(g) To such counsel’s knowledge, there is no action, suit, proceeding, inquiry or
investigation, to which the Company or any subsidiary is a party, or to which the property of the
Company or any subsidiary is subject, before or brought by any court or governmental agency or
body, domestic or foreign, that is pending or overtly threatened in writing and that is required to
be described in the Registration Statement or the Prospectus and is not so described; and
(h) Each of the documents incorporated by reference in the Registration Statement, the
Prospectus and the Schedule TO, when they became effective or were filed with the Commission or as
subsequently amended prior to the date of the Dealer Manager Agreement, as the case may be,
complied as to form in all material respects with the requirements of the 1934 Act, it being
understood that such counsel need express no opinion as to the financial statements, including the
notes thereto and supporting schedules, or other financial data contained therein.
Such counsel has participated in discussions with officers and other representatives of the Company
and representatives of the Dealer Manager at which discussions the contents of the Registration
Statement, the Prospectus and the Schedule TO and related matters were discussed and, although such
counsel has not independently verified, is not passing upon and does not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in the Registration
Statement, the Prospectus or the Schedule TO, such counsel advises you that,
A-2
on the basis of the foregoing, nothing has come to such counsel’s attention that would lead such
counsel to believe that (a) the Registration Statement or any amendment thereto, at the time it was
filed with the Commission or as of the date hereof, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; (b) the Prospectus or any amendment or
supplement thereto, at the time the Registration Statement was filed with the Commission or as of
the date hereof, included or includes an untrue statement of a material fact or omitted or omits 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 or (c) the Schedule TO or any amendment or
supplement thereto at the time it was filed with the Commission or as of the date hereof, included
or includes an untrue statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. It is understood that such counsel
expresses no view as to the financial statements, including the notes thereto and supporting
schedules, or other financial information and data contained in the Registration Statement, the
Prospectus or the Schedule TO.
A-3
Exhibit B
FORM OF OPINION OF BLANK ROME LLP
SPECIAL COUNSEL TO THE COMPANY
SPECIAL COUNSEL TO THE COMPANY
TO BE DELIVERED PURSUANT TO SECTION 9(a)
(To be dated the Commencement Date)
(To be dated the Commencement Date)
(a) The Company has been duly incorporated under the laws of the State of Delaware and is in
good standing and has a legal corporate existence with corporate power and authority to own, lease
and operate its properties and conduct its business as described in the Prospectus, to enter into
and perform its obligations under the Dealer Manager Agreement and to make and consummate the
Offer;
(b) The Shares have been duly authorized for issuance and conform to the description thereof
contained in the Prospectus. When any Shares are issued and delivered by the Company as provided
in the Offer Material, such Shares will be validly issued, fully paid and nonassessable, and the
stockholders of the Company have no preemptive rights with respect to the Shares;
(c) No consent, approval, authorization or order of, or filing with, any governmental agency
or body or any court is required for the consummation of, and the consummation of the transactions
contemplated by, the Dealer Manager Agreement or the Offer (including but not limited to the
issuance and delivery of the Shares pursuant to the Offer), except such as have been obtained or
such as may be required under the 1933 Act or the 1934 Act or such as may be required under foreign
or state securities laws, as to which such counsel need express no opinion;
(d) After obtaining an amendment to the senior secured credit agreements of the Company’s
subsidiaries with respect to the following clauses (ii) , (iii) and (v), the (i) performance by the
Company of the Dealer Manager Agreement, (ii) making and consummation of the Offer by the Company
(including but not limited to the issuance and delivery of Shares thereunder), (iii) use of the
Offer Material and the filing of the Registration Statement, the Prospectus and the Schedule TO,
and any amendments or supplements thereto and (iv) consummation by the Company of the transactions
contemplated by the Dealer Manager Agreement, in each case, have been duly authorized by all
necessary corporate action on the part of the Company and (A) will not result in any violation of
the charter or by-laws of the Company, (B) will not result in a breach or violation of any of the
terms or provisions of, or constitute an event of default (or an event which with notice or lapse
of time or both would become an event of default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company under, (a) any agreement
or instrument that is listed as an exhibit to the Company’s Annual Report on Form 10-K, as amended,
for the year ended December 31, 2004 or the Company’s Quarterly Reports on Form 10-Q and Current
Reports on Form 8-K filed thereafter or (b) any existing applicable law, rule or regulation, or any
judgment, order or decree known to such counsel, of any government, governmental or regulatory
instrumentality or agency or court having jurisdiction over the
B-1
Company or any of its properties or assets, except in the case of clause (B) such breaches,
violations, defaults, rights, creations and impositions which individually or the aggregate would
not result in a Material Adverse Effect;
(e) The Company is not required, and upon consummation of the Offer and any resulting issuance
and delivery of the Shares as contemplated by the Offer, will not be required, to register as an
“investment company” under the Investment Company Act of 1940, as amended;
(f) The Dealer Manager Agreement has been duly authorized, executed and delivered by the
Company;
(g) The Registration Statement and the Prospectus, excluding the documents incorporated by
reference therein, and any amendment or supplement thereto, excluding the documents incorporated by
reference therein, at the time of filing with the Commission complied as to form in all material
respects with the requirements of the 1933 Act, it being understood that such counsel need express
no opinion as to the financial statements, including the notes thereto and supporting schedules, or
other financial data contained therein or with respect to matters relating to federal income tax
consequences of the Offer;
(h) The Schedule TO and any amendments thereto, excluding the Incorporated Documents therein,
complies as to form in all material respects with the applicable requirements of the 1934 Act, it
being understood that such counsel need express no opinion as to the financial statements,
including the notes thereto and supporting schedules, or other financial data contained or
incorporated by reference therein or with respect to matters relating to federal income tax
consequences of the Offer;
(i) The statements in the Prospectus under “The Conversion Offer,” “Comparison of Rights
between the Series A Preferred Stock and Our Common Stock,” “Description of Our Series A Preferred
Stock” and “Description of Capital Stock,” and in the Registration Statement under Item [20],
insofar as such statements constitute a summary of documents referred to therein or matters of law,
fairly summarize in all material respects the information called for with respect to such documents
and matters; and
(j) The statements in the Prospectus under “Material U.S. Federal Income Tax Considerations,”
insofar as such statements constitute a summary of the United States federal tax laws referred to
therein, are accurate and fairly summarize in all material respects the United States federal tax
laws referred to therein.
Such counsel has participated in discussions with officers and other representatives of the Company
and representatives of the Dealer Manager at which discussions the contents of the Registration
Statement, the Prospectus and the Schedule TO and related matters were discussed and, although such
counsel has not independently verified, is not passing upon and does not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in the Registration
Statement, the Prospectus or the Schedule TO (except to the extent provided in paragraphs (i) and
(j) in our opinion of even date), such counsel advises you that, on the basis of the foregoing,
nothing has come to such counsel’s attention that would lead such counsel to
B-2
believe that (a) the Registration Statement or any amendment thereto, at the time it was filed with
the Commission or as of the date hereof, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; (b) the Prospectus or any amendment or supplement
thereto, at the time the Registration Statement was filed with the Commission or as of the date
hereof, included or includes an untrue statement of a material fact or omitted or omits 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 or (c) the Schedule TO or any amendment or supplement
thereto at the time it was filed with the Commission or as of the date hereof, included or includes
an untrue statement of a material fact or omitted or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. It is understood that such counsel
expresses no view as to the financial statements, including the notes thereto and supporting
schedules, or other financial information and data contained in the Registration Statement, the
Prospectus or the Schedule TO.
B-3
Exhibit C
FORM OF OPINION OF ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL TO THE COMPANY
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL TO THE COMPANY
TO BE DELIVERED PURSUANT TO SECTION 9(b)
(To be dated the Settlement Date)
(To be dated the Settlement Date)
(a) The Company has been duly incorporated under the laws of the State of Delaware and is in
good standing and has a legal corporate existence with corporate power and authority to own, lease
and operate its properties and conduct its business as described in the Prospectus, to enter into
and perform its obligations under the Dealer Manager Agreement and to make and consummate the
Offer;
(b) Each Significant Subsidiary organized in a state in the United States (“U.S. Significant
Subsidiary”) has been duly incorporated and is in good standing and has legal corporate existence
under the laws of the jurisdiction of its incorporation, and has corporate power and authority to
own, lease and operate its properties and to conduct its business as described in the Prospectus;
except as otherwise disclosed in the Registration Statement and the Prospectus, all of the issued
and outstanding capital stock of each U.S. Significant Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and is owned of record and, to the best of such
counsel’s knowledge, beneficially, by the Company, directly or indirectly through subsidiaries of
the Company, free and clear of any lien, encumbrance or defect; and none of the outstanding shares
of capital stock of any U.S. Significant Subsidiary was issued in violation of the preemptive or,
to the best of such counsel’s knowledge, similar rights of any securityholder of such U.S.
Significant Subsidiary;
(c) All descriptions in the Registration Statement of written contracts and other documents to
which the Company is a party are accurate in all material respects; to the best of such counsel’s
knowledge, there are no franchises, contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described or referred to in the Registration Statement
or to be filed as exhibits thereto other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto
are correct in all material respects;
(d) Other than the Registration Rights Agreement dated as of November 24, 2003 concerning the
Securities, there are no contracts, agreements or understandings known to such counsel between the
Company and any person granting such person the right to require the Company to file a registration
statement under the 1933 Act with respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the 1933 Act;
(e) After obtaining an amendment to the senior secured credit agreements of the Company’s
subsidiaries with respect to the following clauses (ii), (iii) and (v), the (i) performance by the
Company of the Dealer Manager Agreement, (ii) making and
C-1
consummation of the Offer by the Company (including but not limited to the issuance and
delivery of Shares thereunder), (iii) obtaining and use by the Company of funds required in
connection with the Offer, (iv) use of the Offer Material and the filing of the Registration
Statement, the Prospectus and the Schedule TO, and any amendments or supplements thereto and (v)
consummation by the Company of the transactions contemplated by the Dealer Manager Agreement, in
each case, have been duly authorized by all necessary corporate action on the part of the Company
and (A) will not result in any violation of the charter or by-laws of the Company or any of its
U.S. Significant Subsidiaries, (B) will not result in a breach or violation of any of the terms or
provisions of, or constitute an event of default (or an event which with notice or lapse of time or
both would become an event of default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of its U.S. Significant
Subsidiaries under, (a) any agreement or instrument that is listed as an exhibit to the Company’s
Annual Report on Form 10-K, as amended, for the year ended December 31, 2004 or the Company’s
Quarterly Reports on Form 10-Q and Current Reports on Form 8-K filed thereafter or (b) any existing
applicable law, rule or regulation, or any judgment, order or decree known to such counsel, of any
government, governmental or regulatory instrumentality or agency or court, having jurisdiction over
the Company or any of its U.S. Significant Subsidiaries or any of their properties or assets,
except in the case of clause (B), such breaches, violations, defaults, rights, creations and
impositions which individually or in the aggregate would not result in a Material Adverse Effect;
(f) The Dealer Manager Agreement has been duly authorized, executed and delivered by the
Company;
(g) To such counsel’s knowledge, there is no action, suit, proceeding, inquiry or
investigation, to which the Company or any subsidiary is a party, or to which the property of the
Company or any subsidiary is subject, before or brought by any court or governmental agency or
body, domestic or foreign, that is pending or overtly threatened in writing and that is required to
be described in the Registration Statement or the Prospectus and is not so described; and
(h) Each of the documents incorporated by reference in the Registration Statement, the
Prospectus and the Schedule TO, when they became effective or were filed with the Commission or as
subsequently amended prior to the date of the Dealer Manager Agreement, as the case may be,
complied as to form in all material respects with the requirements of the 1934 Act, it being
understood that such counsel need express no opinion as to the financial statements, including the
notes thereto and supporting schedules, or other financial data contained therein.
Such counsel has participated in discussions with officers and other representatives of the Company
and representatives of the Dealer Manager at which discussions the contents of the Registration
Statement, the Prospectus and the Schedule TO and related matters were discussed and, although such
counsel has not independently verified, is not passing upon and does not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in the Registration
Statement, the Prospectus or the Schedule TO, such counsel advises you that, on the basis of the
foregoing, nothing has come to such counsel’s attention that would lead such
C-2
counsel to believe that (a) the Registration Statement or any amendment thereto, at the time it was
filed with the Commission or as of the date hereof, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; (b) the Prospectus or any amendment or
supplement thereto, at the time the Registration Statement was filed with the Commission or as of
the date hereof, included or includes an untrue statement of a material fact or omitted or omits 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 or (c) the Schedule TO or any amendment or
supplement thereto at the time it was filed with the Commission or as of the date hereof, included
or includes an untrue statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. It is understood that such counsel
expresses no view as to the financial statements, including the notes thereto and supporting
schedules, or other financial information and data contained in the Registration Statement, the
Prospectus or the Schedule TO.
C-3
Exhibit D
FORM OF OPINION OF BLANK ROME LLP
SPECIAL COUNSEL TO THE COMPANY
SPECIAL COUNSEL TO THE COMPANY
TO BE DELIVERED PURSUANT TO SECTION 9(b)
(To be dated the Settlement Date)
(To be dated the Settlement Date)
(a) The Company has been duly incorporated under the laws of the State of Delaware and is in
good standing and has a legal corporate existence with corporate power and authority to own, lease
and operate its properties and conduct its business as described in the Prospectus, to enter into
and perform its obligations under the Dealer Manager Agreement and to make and consummate the
Offer;
(b) The Shares have been duly authorized for issuance and conform to the description thereof
contained in the Prospectus. When any Shares are issued and delivered by the Company as provided
in the Offer Material, such Shares will be validly issued, fully paid and nonassessable, and the
stockholders of the Company have no preemptive rights with respect to the Shares;
(c) No consent, approval, authorization or order of, or filing with, any governmental agency
or body or any court is required for the consummation of, and the consummation of the transactions
contemplated by, the Dealer Manager Agreement or the Offer (including but not limited to the
issuance and delivery of the Shares pursuant to the Offer), except such as have been obtained or
such as may be required under the 1933 Act or the 1934 Act or such as may be required under foreign
or state securities laws, as to which such counsel need express no opinion;
(d) After obtaining an amendment to the senior secured credit agreements of the Company’s
subsidiaries with respect to the following clauses (ii) , (iii) and (v), the (i) performance by the
Company of the Dealer Manager Agreement, (ii) making and consummation of the Offer by the Company
(including but not limited to the issuance and delivery of Shares thereunder), (iii) use of the
Offer Material and the filing of the Registration Statement, the Prospectus and the Schedule TO,
and any amendments or supplements thereto and (iv) consummation by the Company of the transactions
contemplated by the Dealer Manager Agreement, in each case, have been duly authorized by all
necessary corporate action on the part of the Company and (A) will not result in any violation of
the charter or by-laws of the Company, (B) will not result in a breach or violation of any of the
terms or provisions of, or constitute an event of default (or an event which with notice or lapse
of time or both would become an event of default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company under, (a) any agreement
or instrument that is listed as an exhibit to the Company’s Annual Report on Form 10-K, as amended,
for the year ended December 31, 2004 or the Company’s Quarterly Reports on Form 10-Q and Current
Reports on Form 8-K filed thereafter or (b) any existing applicable law, rule or regulation, or any
judgment, order or decree known to such counsel, of any government,
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governmental or regulatory instrumentality or agency or court having jurisdiction over the
Company or any of its properties or assets, except in the case of clause (B) such breaches,
violations, defaults, rights, creations and impositions which individually or the aggregate would
not result in a Material Adverse Effect;
(e) The Company is not required, and upon consummation of the Offer and any resulting issuance
and delivery of the Shares as contemplated by the Offer, will not be required, to register as an
“investment company” under the Investment Company Act of 1940, as amended;
(f) The Dealer Manager Agreement has been duly authorized, executed and delivered by the
Company;
(g) The Registration Statement and the Prospectus, and any amendment or supplement thereto,
excluding the documents incorporated by reference therein, at the time of filing with the
Commission complied as to form in all material respects with the requirements of the 1933 Act, it
being understood that such counsel need express no opinion as to the financial statements,
including the notes thereto and supporting schedules, or other financial data contained therein or
with respect to matters relating to federal income tax consequences of the Offer;
(h) The Schedule TO and any amendments thereto, excluding the Incorporated Documents therein,
complies as to form in all material respects with the applicable requirements of the 1934 Act, it
being understood that such counsel need express no opinion as to the financial statements,
including the notes thereto and supporting schedules, or other financial data contained or
incorporated by reference therein or with respect to matters relating to federal income tax
consequences of the Offer;
(i) The statements in the Prospectus under “The Conversion Offer,” “Comparison of Rights
between the Series A Preferred Stock and Our Common Stock,” “Description of Our Series A Preferred
Stock” and “Description of Capital Stock,” and in the Registration Statement under Item [20],
insofar as such statements constitute a summary of documents referred to therein or matters of law,
fairly summarize in all material respects the information called for with respect to such documents
and matters;
(j) The statements in the Prospectus under “Material U.S. Federal Income Tax Considerations,”
insofar as such statements constitute a summary of the United States federal tax laws referred to
therein, are accurate and fairly summarize in all material respects the United States federal tax
laws referred to therein; and
(k) The Registration Statement has become effective under the 1933 Act, the Prospectus was
filed with the Commission pursuant to the subparagraph of Rule 424(b) specified in such opinion
within the time period required by Rule 424(b), the Schedule TO (excluding the Incorporated
Documents and the financial statements, including the notes thereto and supporting schedules, and
other financial or statistical information and data contained therein as to which counsel does not
express an opinion) is responsive in all material respects to the requirements of the 1934 Act and,
to the knowledge of such counsel, no stop order suspending the effectiveness
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of the Registration Statement or any part thereof has been issued under the Act and no
proceedings for that purpose have been instituted or are pending or threatened by the Commission.
Such counsel has participated in discussions with officers and other representatives of the Company
and representatives of the Dealer Manager at which discussions the contents of the Registration
Statement, the Prospectus and the Schedule TO and related matters were discussed and, although such
counsel has not independently verified, is not passing upon and does not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in the Registration
Statement, the Prospectus or the Schedule TO (except to the extent provided in paragraphs (i) and
(j) in our opinion of even date), such counsel advises you that, on the basis of the foregoing,
nothing has come to such counsel’s attention that would lead such counsel to believe that (a) the
Registration Statement or any amendment thereto, at the time it was filed with the Commission or as
of the date hereof, contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein or necessary to make the statements
therein not misleading; (b) the Prospectus or any amendment or supplement thereto, at the time the
Registration Statement was filed with the Commission or as of the date hereof, included or includes
an untrue statement of a material fact or omitted or omits 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 or (c) the Schedule TO or any amendment or supplement thereto at the time it was
filed with the Commission or as of the date hereof, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. It is understood that such counsel expresses no view as to the
financial statements, including the notes thereto and supporting schedules, or other financial
information and data contained in the Registration Statement, the Prospectus or the Schedule TO.
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