EXHIBIT 1.1
ANIXTER INTERNATIONAL INC.
DEALER MANAGER AGREEMENT
November 8, 2004
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
Four World Financial Center
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
1. General. Anixter International Inc., a Delaware corporation (the
"COMPANY"), plans to make a tender offer to exchange (the "OFFER") up to
$378,135,000 aggregate principal amount at maturity of the Company's outstanding
Liquid Yield Option Notes Due 2033 (Zero Coupon-Senior) (the "SECURITIES") for
newly issued Zero Coupon Convertible Notes Due 2033 (the "NEW SECURITIES"), 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 New Securities will be issued pursuant to an indenture (the "NEW
INDENTURE") to be entered into between the Company and The Bank of New York, as
Trustee (the "NEW TRUSTEE"). The New Securities will be convertible into cash
and shares of common stock, par value $1.00 per share, of the Company (the
"COMMON STOCK") on the terms, and subject to the conditions, set forth in the
New Indenture.
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 8, 2004
pursuant to 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 and delivery of the New Securities in
connection therewith. 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 New
Securities to be issued in connection therewith. As used in this Agreement, the
term "PROSPECTUS" means (i) any prospectus, as amended or supplemented on or
prior to the Acceptance 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 tenders 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
tenders of Securities in the Offer on or prior to the Acceptance 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") and the Letter of Transmittal.
(d) The form of letter to Registered Holders and The Depository Trust
Company Participants relating to the Offer, and the form of letter to Clients of
Registered Holders and The Depository Trust Company Participants relating to the
Offer.
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(e) 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 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 exchange offers of a like
nature, including, but not limited to, soliciting tenders 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 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 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 agrees that the Offer Material have been or will be prepared and
approved by, and are the sole responsibility of, the Company. 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, that would require the making of any
change in any Offer Material then being used 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.
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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 comments, but which comments have not resulted in a response
reasonably satisfactory to you to reflect such 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 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, that,
in your judgment, makes it impracticable or inadvisable to carry out the Offer,
the exchange 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 exchange of Securities
pursuant thereto or the performance of this Agreement, then in any such case you
shall be entitled to withdraw as 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 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 the Dealer
Manager a fee for its services as Dealer Manager hereunder equal to .25% of the
accreted principal amount of Securities validly tendered and accepted by the
Company pursuant to the Offer, and that such compensation will be paid in cash
immediately upon the completion of the Offer.
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 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 Exchange 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) the fees and expenses of the New
Trustee, including the fees and disbursements of counsel for the New Trustee in
connection with the New Indenture, (vi) 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, (vii) the
cost of the preparation, issuance and delivery of the certificates for the New
Securities, including any and all transfer and other taxes payable thereon,
except as otherwise stated in the Letter of Transmittal, (viii) all expenses in
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connection with the qualification of the New Securities and the shares of
Common Stock issuable upon conversion of the New Securities for offer and
delivery under state securities or blue sky laws, (ix) all costs and expenses
incident to the additional listing of the Common Stock issuable upon conversion
of the New Securities on the New York Stock Exchange, (x) any fees payable in
connection with the rating of the New Securities, (xi) all fees and expenses of
Shearman & Sterling LLP as counsel to the Dealer Manager and (xii) 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.
6. Exchange Agent and Information Agent. (a) The Company will arrange
for The Bank of New York, a New York banking corporation, to serve as exchange
agent (the "EXCHANGE 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
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 ("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 Exchange 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.
(a) 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 Securities are
accepted by the Company pursuant to the Offer (the "ACCEPTANCE DATE") (unless
another date is specifically referenced in which case the representation and
warranty shall speak as of such date):
(i) 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 Acceptance Date, the Registration
Statement and any post-effective amendment thereto have become effective under
the 1933 Act and no stop order suspending the effectiveness of the Registration
Statement and any post-effective amendment thereto has been issued under the
1933 Act and no proceedings for that purpose have been instituted or are pending
or, to the
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knowledge of the Company, are contemplated by the Commission, and any request on
the part of the Commission for additional information has been complied with.
At the respective times the Registration Statement and any
post-effective amendments thereto become effective and at the Acceptance 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 such
documents based upon written information furnished to the Company by you or on
your behalf specifically for use therein, it being understood and agreed that
the only such information furnished by the Dealer Manager consists of the Dealer
Manager's legal and marketing name.
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.
(ii) 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 (i) 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 (i) 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.
(iii) 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 Acceptance 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.
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(iv) 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 the statement of operations, stockholder's equity and cash flows
of the Company and its consolidated subsidiaries 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 Consolidated Historical Financial
Data" in the Prospectus present fairly the information shown therein and have
been compiled as described in the Prospectus under the caption "Selected
Consolidated Historical Financial Data."
(v) Independent Accountants. The accountants who certified the
financial statements and supporting schedules 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.
(vi) 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 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, 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 with respect to the Company and
its subsidiaries considered as one enterprise, and (iii) there has been no
dividend or distribution of any kind declared, paid or made by the Company on
any class of its capital stock.
(vii) Good Standing of the Company. The Company has been duly organized
and is validly existing as a corporation in good standing under the laws of the
State of Delaware and has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under, or as
contemplated by, this Agreement. The Company is duly qualified as a foreign
corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a Material
Adverse Effect.
(viii) Good Standing of Subsidiaries. Each "significant subsidiary" (as
such term is defined in Rule 1-02 of Regulation S-X) of the Company (each a
"Subsidiary" and, collectively, the "Subsidiaries") has been duly organized and
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation to transact business
and is in good
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standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect; except as otherwise disclosed in the
Prospectus, all of the issued and outstanding capital stock of each such
Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity; none of the outstanding shares of capital stock of any
Subsidiary was issued in violation of the preemptive or similar rights of any
security holder of such Subsidiary.
(ix) Capitalization. The shares of issued and outstanding capital stock
of the Company have been duly authorized and validly issued and are fully paid
and non-assessable; none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar rights of any
security holder of the Company.
(x) Authorization of this Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(xi) Authorization of the New Indenture. The New Indenture has been
duly authorized by the Company and, when duly executed and delivered by the
Company and the New Trustee, will constitute a valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles.
(xii) Authorization of the New Securities. The New Securities have been
duly authorized and, at the Acceptance Date, will have been duly executed by the
Company and, when authenticated by the New Trustee in the manner provided for in
the New Indenture and delivered by the Company as provided in the Offer
Material, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally or by general equitable principles.
(xiii) Description of the New Securities and the New Indenture. The New
Securities and the New Indenture will conform in all material respects to the
respective statements relating thereto contained in the Prospectus.
(xiv) Authorization and Description of Common Stock. The Common Stock
conforms to all statements relating thereto contained in or incorporated by
reference in the Prospectus and Offer Material and such description conforms to
the rights set forth in the instruments defining the same. Upon issuance and
delivery of the New Securities in accordance with the New Indenture and as
provided in the Offer Material, the New Securities will be convertible at the
option of the holder thereof for cash and shares of Common Stock, if any, in
accordance with the terms of the New Securities and the New Indenture; the
shares of Common Stock issuable upon conversion of the New Securities have been
duly authorized and reserved for issuance upon such conversion by all necessary
corporate action and such shares, when
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issued upon such conversion, will be validly issued and will be fully paid and
non-assessable; no holder of such shares will be subject to personal liability
by reason of being such a holder; and the issuance of such shares upon such
conversion will not be subject to the preemptive or other similar rights of any
security holder of the Company.
(xv) Absence of Defaults and Conflicts. Neither the Company nor any of
its Subsidiaries is in violation of its charter or by-laws or in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which it or any of them may be bound,
or to which any of the property or assets of the Company or any Subsidiary is
subject (collectively, "AGREEMENTS AND INSTRUMENTS"), except for such defaults
that would not, singly or in the aggregate, result in a Material Adverse Effect.
The (i) execution, delivery and performance by the Company of this Agreement,
the New Indenture and the New Securities, (ii) the making and consummation of
the Offer by the Company (including, but not limited to, the issuance and
delivery of the New Securities as provided in the Offer), (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 in 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, 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 property or assets of the
Company or any Subsidiary pursuant to, the Agreements and Instruments (except
for such conflicts, breaches or defaults or liens, charges or encumbrances that
would not, singly or in the aggregate, result in a Material Adverse Effect), nor
will such action result in any violation of the provisions of the charter or
by-laws of the Company or any Subsidiary or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any subsidiary or any of their assets, properties or operations. 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
Subsidiary.
(xvi) Absence of Labor Dispute. No labor dispute with the employees of
the Company or any subsidiary exists or, to the knowledge of the Company, is
imminent.
(xvii) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending, or, to the knowledge of the Company,
threatened, against or affecting the Company or any subsidiary, which is
required to be disclosed in the Prospectus (other than as disclosed therein), or
which might reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely affect the
properties or assets thereof or the ability of the Company to consummate the
Offer or perform its obligations thereunder, including, without limitation, its
obligations under this Agreement, the New Indenture and the New Securities; the
aggregate of all pending legal or governmental proceedings to which the Company
or any subsidiary is a party or of which any of their
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respective property or assets is the subject which are not described in the
Prospectus, including ordinary routine litigation incidental to the business,
could not reasonably be expected to result in a Material Adverse Effect.
(xviii) Accuracy of Exhibits. All of the descriptions of contracts or
other documents contained or incorporated by reference in the Prospectus are
accurate and complete descriptions of such contracts or other documents. There
are no contracts or documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits thereto
which have not been so described and filed as required.
(xix) Possession of Intellectual Property. The Company and its
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 subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others with
respect to any Intellectual Property or of any facts or circumstances which
would render any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its subsidiaries therein, and 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.
(xx) 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 necessary or required for the
execution, delivery or performance by the Company of this Agreement, the New
Indenture, or the New Securities, in connection with the consummation of the
Offer or the other transactions described in the Offer Material, including but
not limited to the issuance and delivery of the New Securities and the issuance
of shares of Common Stock upon conversion of New Securities, except such as have
been already obtained or as may be required under the 1933 Act or state
securities laws.
(xxi) Possession of Licenses and Permits. The Company and its
Subsidiaries possess such 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; the Company and its Subsidiaries are
in compliance with the terms and conditions of all such Governmental Licenses,
except where the failure so to comply would not, singly or in the aggregate,
have a Material Adverse Effect; all of the Governmental Licenses are valid and
in full force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force and
effect would not have 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 which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect.
10
(xxii) Title to Property. The Company and its subsidiaries have good
and marketable title to all real property owned by the Company and its
subsidiaries and good title to all other properties owned by them, in each case,
free and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (a) are described in the
Prospectus or (b) do not, singly or in the aggregate, materially affect the
value of such property and do not interfere with the use made and proposed to be
made of such property by the Company or any of its subsidiaries; and all of the
leases and subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the Company or any
of its subsidiaries holds properties described in the Prospectus, are in full
force and effect, and neither the Company nor any subsidiary has any notice of
any material claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company or such
subsidiary to the continued possession of the leased or subleased premises under
any such lease or sublease.
(xxiii) Investment Company Act. The Company is not, and after giving
effect to the issuance of the New Securities in connection with the Offer will
not be, an "investment company" required to be registered under the Investment
Company Act of 1940, as amended.
(xxiv) Market Data. The statistical and market-related data included in
the Prospectus are based on or derived from sources that the Company believes to
be reliable and accurate in all material respects or represent the Company's
good faith estimates that are made on the basis of data delivered from such
sources.
(xxv) 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 best knowledge of the
Company after reasonable investigation, 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 or
asbestos-containing materials (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 best
knowledge of the Company after reasonable investigation, are each in compliance
with their requirements, (C) there are no pending or, to the best knowledge of
the Company after reasonable investigation, 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 best knowledge of the Company after reasonable investigation, 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
11
affecting the Company or any of its subsidiaries relating to Hazardous Materials
or any Environmental Laws.
(xxvi) 1934 Act Reports. The Company is subject to Section 13 or 15(d)
of the 1934 Act. The Incorporated Documents, where applicable, and the
Prospectus comply in all material respects with Regulation G and with Item 10(e)
of Regulation S-K.
(xxvii) 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 reasonably 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 as Exhibits 31.1 and 31.2 to the Company's most recent quarterly report
on Form 10-Q. Since the date of the most recent evaluation of such disclosure
controls and procedures, there has been no change in internal controls that has
materially affected, or is reasonably likely to materially affect, internal
controls, including any corrective actions with regard to significant
deficiencies and material weaknesses.
(b) 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.
8. Additional Agreements. (a) The Company shall notify you immediately
and, if requested, shall notify you in writing 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 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 New Securities or the shares of Common Stock issuable
upon conversion thereof 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
tendered Securities, (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
12
securities commission or other regulatory authority of any order suspending the
qualification or the exemption from qualification of the New Securities or the
shares of Common Stock issuable upon conversion thereof 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 (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
in 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, for which provision is made 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 possible 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 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 best 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, 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
13
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.
(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 New Securities 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 New Securities, 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 New Securities and
the shares of Common Stock issuable upon conversion thereof for offering and
sale under the applicable
14
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 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 New Securities and the shares of Common Stock issuable upon
conversion thereof 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, oral or written, with the Information Agent and the Exchange
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 Exchange Agent.
(l) The Company will use its best efforts to cause all shares of Common
Stock issuable upon conversion of the New Securities to be listed on the New
York Stock Exchange.
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 opinion, dated the Commencement Date, of ▇▇▇▇ ▇. ▇▇▇, Vice President --
General Counsel and Secretary of the Company, in form and substance satisfactory
to your counsel, to the effect set forth in Exhibit A hereto, (ii) the signed
opinion, dated the Commencement Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the
Company, in form and substance satisfactory to your counsel, to the effect set
forth in Exhibit B hereto, (iii) a certificate of the President or a Vice
President of the Company and of the chief financial officer or chief accounting
officer of the Company, dated as of the Commencement Date, to the effect that,
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, whether or not arising in the ordinary course of business (other
than as set forth in the Prospectus), (iv) a certificate, dated the Commencement
Date, of the Secretary of the Company in form and substance reasonably
satisfactory to you and (v) a letter from Ernst & Young LLP, dated as of the
Commencement Date, in form and substance reasonably satisfactory to you,
containing
15
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 Acceptance Date, deliver or cause to be
delivered to you each of the documents listed in clauses (i) through (v) below
and that it shall not accept Securities tendered pursuant to the Offer unless on
such Acceptance Date it shall have delivered or caused to be delivered to you
each such document: (i) the signed opinion, dated the Acceptance Date, of ▇▇▇▇
▇. ▇▇▇, Vice President -- General Counsel and Secretary of the Company, in form
and substance satisfactory to your counsel, to substantially the same effect set
forth in Exhibit A hereto and covering such further matters as your counsel
shall reasonably request, (ii) the signed opinion, dated the Acceptance Date, of
▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Company, in form and substance satisfactory
to your counsel, to substantially the same effect set forth in Exhibit B hereto
and covering such further matters as your counsel shall reasonably request,
(iii) a certificate of the President or a Vice President of the Company and of
the chief financial officer or chief accounting officer of the Company, dated as
of the Acceptance 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, whether or not
arising in the ordinary course of business (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 Acceptance 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 Acceptance 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) a
certificate, dated the Acceptance Date, of the Secretary of the Company in form
and substance reasonably satisfactory to you, and (v) a letter from Ernst &
Young LLP, dated as of the Acceptance Date, to the effect that Ernst & Young LLP
reaffirms the statements made in the letter furnished pursuant to subsection
(a)(v) of this Section 9, except that the specified date referred to shall be a
date not more than three business days prior to the Acceptance Date.
10. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless the Dealer Manager and its affiliates, directors,
officers, employees, representatives and agents 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 (each of 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
16
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, bad faith or willful
misconduct of an Indemnified Party, or (E) any action taken or 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 any such
settlement is effected with the written consent of the Company (which
consent shall not be unreasonably withheld); 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 the
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,
bad faith or willful misconduct of the Dealer Manager.
17
(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 (other than as a result of the proviso to Section 10(a) or, in the case
of clause (D) of Section 10(a)(i), as a result of the gross negligence, bad
faith or willful misconduct of an Indemnified Party), 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, 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 the 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.
(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
18
hereunder to such Indemnified Party except to the extent that the Company has
been prejudiced in any material respect 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 that it
wishes, may assume the defense thereof, with counsel reasonably satisfactory to
such Indemnified Party, and shall pay the reasonable fees and expenses of such
counsel; provided, however, (i) if the Company fails to assume such defense
within fifteen business days after receiving written notice of any such claim,
action or proceeding or (ii) if there exists or may exist a 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 reasonable expense of the Company provided, further, however, that the
Company shall not be required to pay the fees and expenses of more than one
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. The Company shall not be liable for any settlement of any
proceeding effected without its written consent (which consent shall not be
unreasonably withheld), 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.
(g) 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 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
Section 5 and the representations and warranties of the Company set forth in
this Agreement shall remain operative
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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 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 APPLICABLE TO CONTRACTS
EXECUTED IN AND PERFORMED IN THAT STATE.
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
Four World Financial ▇▇▇▇▇▇
▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Global Origination Counsel
(b) If to the Company:
Anixter International, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel & Secretary
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 for 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 waive 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]
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Please indicate your willingness to act as Dealer Manager on the terms
set forth herein and your acceptance of the foregoing provisions by signing in
the space provided below for that purpose and returning to us a copy of this
letter, whereupon this letter shall constitute a binding agreement among us.
Very truly yours,
ANIXTER INTERNATIONAL INC.
By:
----------------------------------
Name:
Title:
Accepted as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.,
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
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