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Exhibit 1.1
FORM OF
DEALER MANAGER AGREEMENT
July ____, 2000
STIFEL, NICOLAUS & COMPANY, INC.
1125 17th Street
Suite 1500
Denver, CO 80202
Ladies and Gentlemen:
This agreement (the "Agreement") will confirm the
understanding among Metretek Technologies, Inc., a Delaware corporation (the
"Company") and Stifel, Nicolaus & Company, Inc. ("SNC") pursuant to which the
Company has retained SNC, on the terms and subject to the conditions set forth
herein, to act as exclusive dealer manager for the Company in connection with
the proposed redemption by the Company of all of its outstanding warrants that
were issued in September 1998 as dividends to its existing stockholders (the
"Subject Warrants"). The Subject Warrants are more particularly described in
post-effective amendment number 1 to that certain registration statement on Form
S-3 (File No. 333-60925) declared effective by the Securities and Exchange
Commission on _____________, (the "Original Registration Statement").
1. Retention. The Company hereby retains SNC as its exclusive dealer
manager in connection with the redemption by the Company of the Subject
Warrants and the exercise of the Subject Warrants by the holders
thereof (the "Redemption") and, subject to the terms and conditions
hereof, you agree to act as the Company's exclusive dealer manager in
connection with the Redemption. The Company hereby authorizes you to
act on its behalf in accordance with this Agreement and the terms of
the Redemption Documents (defined below), which Redemption Documents
you and any other broker or dealer or any commercial bank or trust
company or nominee approved by the Company (collectively, the
"Brokers") are entitled to use in connection with the solicitation of
the exercise of the Subject Warrants prior to the date the Subject
Warrants are to be redeemed (the "Redemption Date"). You and the
Company agree to furnish no other written material to any record holder
of the Subject Warrants (a "Holder") in connection with the Redemption;
provided, however, that the Company may provide written materials to
Holders if (i) such material is concurrently or has previously been
filed with the Securities and Exchange Commission (the "Commission"),
or (ii) such material is delivered to SNC within a reasonable time
prior to its public dissemination or delivery to Holders in order to
provide you with an opportunity to review and comment thereon. In so
soliciting, you
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shall act as an independent contractor and shall not be deemed to act
as agent of the Company, and the Company shall not be deemed to act as
your agent. In addition, in so soliciting, no Broker shall be deemed to
act as your agent or as agent of the Company, and you shall not be
deemed to act as the agent of any Broker.
2. Mailing of Redemption Documents. Prior to the commencement of the
Redemption, the Company agrees to furnish you with as many copies as
you may reasonably request of (i) the notice of redemption relating to
the Redemption (the "Redemption Notice") and the Consent and Letter of
Transmittal to be used by Holders to tender or exercise the Subject
Warrants (the "Letters of Transmittal"), the form of letter to Brokers
and the form of letter from Brokers to clients relating to the
Redemption (the "Broker/Client Letters"), any form of newspaper
advertisement or press release, the Guidelines for Certification of
Taxpayer Identification Number and the Consent and Notice of Guaranteed
Delivery relating to the Redemption (the "Notice of Guaranteed
Delivery"), (ii) each document required to be filed with the Commission
pursuant to the provisions of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), pertaining to the Company during the term
of this Agreement, including the post-effective amendment number 1 to
the Original Registration Statement to be filed with the Commission and
be declared effective by the Commission prior to the commencement of
the Redemption (the post-effective amendment number 1 to the Original
Registration Statement, as so declared effective, shall be referred to
herein as the "S-3"), with respect to the shares of common stock
issuable upon exercise of the Subject Warrants, and (iii) each
appendix, attachment, modification, amendment or supplement to any of
the foregoing and all related documents (each of (i), (ii) and (iii), a
"Redemption Document" and, collectively, the "Redemption Documents").
The terms Redemption Document and Redemption Documents include any
documents incorporated therein by reference or deemed to be
incorporated therein by reference. At the commencement of the
Redemption, the Company shall cause timely to be delivered or mailed to
each Holder legally or contractually entitled thereto, each Redemption
Document and any other offering materials prepared expressly for use by
Holders in tendering, exercising or otherwise participating in the
Redemption, together with a return envelope. Thereafter, to the extent
practicable, until the Redemption Date, the Company shall use its
reasonable best efforts to cause copies of such materials to be mailed
to each person who becomes a Holder.
In connection with the Redemption, if (a) the Company uses or permits
the use of, or files with the Commission or any other governmental or
regulatory authority or body, any Redemption Document (other than any
document incorporated by reference into any Redemption Notice) that (i)
has not been submitted to you on a timely basis for your comments or
(ii) has been so submitted and with respect to which you reasonably
object, (b) any restraining order or injunction shall have been issued
or any investigation, action, claim, suit or proceeding shall have been
commenced with respect to any aspect of the Redemption or with respect
to any of the transactions contemplated by the Redemption Documents
before any foreign, federal, state or local authority, regulatory body,
administrative agency, court or other governmental or
quasi-governmental body,
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including the Commission, that in the opinion of your counsel makes it
legally inadvisable for you to continue to act hereunder, or (c) the
Company shall have breached in any material respect any of its
representations, warranties, agreements or covenants herein, and such
breach shall not be promptly cured, then you shall be entitled to
withdraw as the dealer manager in connection with the Redemption,
without any liability or penalty to you or any other Indemnified Person
(as defined in Schedule A hereto) for such withdrawal and without loss
of any right to indemnification or contribution provided in this
Agreement (including such Schedule A) or to the payment of all fees and
expenses payable hereunder that have accrued to the date of the
withdrawal. If you should withdraw, the fees accrued and reimbursement
for your out-of-pocket expenses through the date of such withdrawal
shall be paid to you in cash promptly after such date.
3. Conduct of Redemption.
(a) You agree as dealer manager, in accordance with your customary
practice, to perform in connection with the Redemption those
services as are customarily performed by investment banking
concerns in connection with similar warrant redemptions,
including using your reasonable best efforts to solicit the
exercise of the Subject Warrants in the Redemption;
notwithstanding the foregoing, we agree that nothing set forth
in this Agreement shall require you to continue to render
services hereunder (i) for the period during which any
injunction, restraining order or other adverse judicial or
regulatory ruling, declaration or other order shall remain in
effect with respect to the Redemption or with respect to any
of the transactions in connection with, or contemplated by
such Redemption if in your good faith judgment upon advice of
counsel you believe it inadvisable to render services pursuant
hereto, or (ii) if your continuing so to act could, in your
good faith judgment based on the advice of counsel, violate
any statute, regulation or other law of the United States of
America or any state thereof or other jurisdiction applicable
to the Redemption or any other transaction contemplated by the
Redemption Documents;
(b) You shall not be under any liability to the Company or any
other person for any act or omission on the part of any Broker
who solicits exercise of Subject Warrants in the Redemption or
for any act or omission on your part that is not finally
judicially determined to have arisen out of your willful
misconduct or gross negligence, and you, and the Indemnified
Persons (as defined in Schedule A hereto), shall have no
liability to the Company or any other person in connection
with the services rendered and to be rendered pursuant to this
Agreement, except for any losses, claims, damages, liabilities
and expenses ("Losses") which resulted primarily from any act
or omission in performing your obligations hereunder, which
Losses are finally judicially determined to have arisen out of
your willful misconduct or gross negligence; the Company
acknowledges and agrees that, in your capacity as dealer
manager, you shall act as an independent contractor, and
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any of your duties arising out of your engagement pursuant to
this Agreement shall be owed solely to the Company;
(c) The Redemption Documents will be prepared and approved by the
Company; you and any other Broker are authorized to use the
Redemption Documents in connection with the solicitation of
Holders; the Company shall not (i) amend or supplement the
Redemption Documents (other than as such Redemption Documents
may be amended or supplemented by documents that are deemed
incorporated by reference in the Redemption Notice), or (ii)
approve any related material for use in connection with the
Redemption without first having submitted a copy thereof to
you within a reasonable period of time prior to the filing or
use thereof in order to provide you an opportunity to review
and comment thereon. The Company agrees, at its expense, to
furnish to you as many copies of the Redemption Documents in
final form for your use in connection with the Redemption as
you may reasonably request;
(d) The Company agrees to furnish, or cause to be furnished, to
you cards or lists or copies thereof showing the names and
addresses of, and the aggregate number of shares of Common
Stock issuable upon exercise of the Subject Warrants held by
each Holder as soon as reasonably practicable after the date
hereof, and shall advise you, or cause you to be advised, as
soon as reasonably practical during the continuance of the
Redemption as to (i) any transfers known to the Company or of
record of the Subject Warrants and (ii) such other related
information from time to time as reasonably requested by you;
such notification consisting of the name and address, if
available and permitted by applicable law, of the transferor
and transferee of any Subject Warrants and the date of such
transfer; except as otherwise provided herein, you agree to
use such information only in connection with the Redemption
and not to furnish such information to any other person except
in connection with the Redemption;
(e) The Company shall direct American Securities Transfer & Trust,
Inc., as the warrant agent, transfer agent and registrar (the
"Agent"), to inform you and your counsel during each business
day during the Redemption as to the number of Subject Warrants
which have been tendered or exercised in connection with the
Redemption during the interval since its previous daily report
to you pursuant to this provision;
(f) The Company agrees to advise you promptly upon the occurrence
of any event which could cause the Company to withdraw,
rescind, or modify the Redemption and shall also advise you
promptly of any proposal or requirement to amend or supplement
any filing required by the Securities Act of 1933, as amended
(the "Securities Act"), including the S-3, the Exchange Act or
"blue sky" or other state securities laws; the Company will
prepare and, if necessary, file with the Commission, as
required by applicable law or regulation, any and all
necessary
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amendments and supplements to the Redemption Documents; prior
to and during the continuance of the Redemption, the Company
will inform you promptly after either receives notice or
becomes aware of the happening of any event, or the discovery
of any fact, that could make any statement made in any
Redemption Document untrue in any material respect or that
could in the reasonable opinion of legal counsel experienced
in securities law matters require the making of any change in
any Redemption Document then being used in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading or would affect the truth 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; the Company will provide you promptly,
with any other information reasonably available to the Company
relating to the Redemption or any other transaction
contemplated by the Redemption Documents that you may from
time to time reasonably request, and upon your request, the
Company will confirm such information in writing;
(g) The Company shall use reasonable efforts to cause the Agent to
cooperate with you in all respects reasonably requested by
you; and
(h) The Company acknowledges and agrees that you may use the
Redemption Documents as specified herein without any
independent investigation or verification on your part and the
Company represents and warrants to you that you may rely on
the accuracy and adequacy of any information delivered to you
by or on behalf of the Company without any independent
verification of such information or an appraisal of the
Company's assets and that such information, including its
business, assets, liabilities, financial condition, plans and
prospects, will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to
make the statements made therein, in light of the
circumstances under which they were made, not misleading.
(i) Until the Redemption date, SNC may (but shall be under no
obligation to) purchase and sell Subject Warrants, in the open
market or otherwise, in such amounts and at such prices as it
deems advisable. Any Subject Warrants so purchased and held by
SNC on the Redemption Date will be exercised by SNC. In
addition, SNC may make purchases and sales of Common Stock, as
a market-maker, in the open market or otherwise, for long or
short account, on such terms as it may deem advisable.
4. Compensation and Expenses Reimbursement. In consideration of the
services to be rendered by you pursuant hereto, the character and
sufficiency of which the Company hereby acknowledges, the Company
agrees to pay you, in cash, the following non-refundable amounts:
(a) A one-time fee of $25,000 payable upon the filing of the S-3;
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(b) A fee, payable concurrently with the termination of the
Redemption pursuant to the Redemption Documents, equal to
$0.15 for each Subject Warrant exercised, and only to the
extent such amount exceeds the payment in Section 4(a) above;
(c) Whether or not the Redemption is commenced or consummated and
whether this Agreement has expired or is terminated, including
upon your resignation as dealer manager for whatever reason,
the Company agrees to pay promptly, in cash, all of the
out-of-pocket expenses incurred by you in connection with the
services rendered or to be rendered by you pursuant to this
Agreement, including all reasonable fees and out-of-pocket
expenses of your counsel up to $20,000;
(d) Whether or not the Redemption is commenced or consummated and
whether or not this Agreement has expired or has been
terminated, the Company shall pay (i) all expenses of
preparation, printing, mailing and dissemination of the
Redemption Documents and any other documents related to the
Redemption or other transactions contemplated by the
Redemption Documents; (ii) all costs of furnishing such copies
of the Redemption Documents as may reasonably be requested in
connection with the Redemption or other transactions
contemplated by the Redemption Documents; (iii) all fees and
expenses paid by Brokers (including you) for their customary
mailing and handling expenses incurred in forwarding
Redemption Documents and any other documents related to the
Redemption to their customers; (iv) all fees and expenses of
the Agent or other persons rendering services in connection
with the Redemption or other transactions contemplated by the
Redemption Documents; (v) all advertising charges; (vi) all
filing fees applicable to any transaction addressed herein
required to be paid to any governmental or regulatory agency
(including those required, if any, of you by the National
Association of Securities Dealers, Inc. (the "NASD")); and
(vii) all other expenses payable in connection with the
Redemption but not including any expenses payable by holders
of Subject Warrants; and
(e) All payments to be made by the Company pursuant to this
Section 4 shall be made as soon as reasonably practicable
after the expiration or termination of the Redemption;
provided, however, that the reimbursement of your reasonable
out-of-pocket expenses (excluding the fees and expenses of
counsel) shall be due upon request as such expenses are
incurred.
5. Termination. Subject to Section 11 hereof, you may resign and,
following 30 days' notice, the Company may terminate your engagement
hereunder at any time upon receipt of written notice to such effect by
the other party. Your engagement hereunder may be extended by written
agreement of the parties hereto. If this Agreement were to expire or
terminate for any reason, however, you shall be entitled to prompt
payment of all of the fees earned and amounts payable in respect of
expenses incurred in accordance with Section 4 hereof up to the
effective date of such expiration or termination, and the
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indemnity and contribution provisions contained in Schedule A hereto
and the representations, warranties and agreements contained in Section
7 hereof, shall remain in full force and effect.
6. Indemnity. The Company agrees to indemnify the Indemnified Parties (as
defined in Schedule A) as set forth in Schedule A, which Schedule A is
incorporated herein and made a part hereof.
7. Representations and Warranties of the Company. The Company represents
and warrants to you that, at the commencement of the Redemption at each
mailing or other dissemination of any Redemption Document, and upon the
consummation of and throughout the Redemption:
(a) The Company and each of its subsidiaries have been duly
organized, are validly existing and in good standing as
corporations under the laws of their jurisdiction of
incorporation and have the requisite power and authority to
carry on their business as it is currently being conducted, to
own, lease and operate their properties and the Company has
the full corporate power and authority to authorize the
Redemption, to execute, deliver and perform this Agreement and
to consummate the transactions contemplated by the Redemption
Documents, and each of the Company and its subsidiaries is
duly qualified and is in good standing as a foreign
corporation authorized to do business in each jurisdiction
where the operation, ownership or leasing of property or the
conduct of its business requires such qualification, except
where the failure to be so qualified would not, singly or in
the aggregate, have a material adverse effect or a prospective
material adverse effect on the properties, plans, business,
results of operations, general affairs, management, condition
(financial or otherwise), business prospects, or business
affairs of the Company and its subsidiaries taken as a whole
(a "Material Adverse Effect");
(b) Prior to the commencement of the Redemption, the Company shall
have taken all corporate action necessary to authorize the
making and consummation thereof and the consummation of the
other transactions contemplated by the Redemption Documents;
(c) Each of the Redemption Documents as then amended or
supplemented and the Redemption will comply with the
Securities Act and the Exchange Act, as such Acts may be
applicable, and in each case the applicable rules and
regulations of the Commission promulgated pursuant thereto,
and with all applicable rules or regulations of any
governmental or regulatory authority or body, including
applicable "blue sky" or similar securities laws, and no
consent or approval of, or filing with, any governmental body
or agency is required in connection with the commencement or
consummation of the Redemption, other than those consents or
approvals which will have been obtained or any filing which
will have been made
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prior to the commencement or consummation, as the case may be,
of the Redemption;
(d) None of the Redemption Documents and no other report, filing,
document, release, or communication published, delivered to
Holders, or filed with any governmental or regulatory body by
or on behalf of the Company in connection with the Redemption
including, without limitation, the S-3 or any other such
information or document filed with the Commission, contains or
will contain any untrue statement of a material fact or omits
or will omit to state a material fact required to be stated
therein or necessary to make the statements made therein, in
light of the circumstances under which they were made, not
misleading;
(e) Neither the Company nor any of its subsidiaries is (i) in
violation of its respective charter or bylaws or (ii) in
default in the performance of any obligation, bond, debenture,
note or any other evidence of indebtedness, or any indenture,
mortgage, deed of trust or other contract, lease or other
instrument to which the Company or any of its subsidiaries is
a party or by which any of them is bound, or to which any of
the property or assets of the Company or any of its
subsidiaries is subject, except, in the case of this clause
7(e)(ii), where such default would not have, singly or in the
aggregate, a Material Adverse Effect;
(f) Except as described in the Redemption Documents, there is no
action, suit, or proceeding before or by any court or
governmental agency or body, pending against or affecting the
Company or any of its subsidiaries or affiliates, or any of
their respective assets or properties, which would reasonably
be expected to have, singly or in the aggregate, a Material
Adverse Effect, or which would reasonably be expected to
materially and adversely affect the Company's performance of
its obligations pursuant to this Agreement or the transactions
contemplated hereby, and to the best of the Company's
knowledge, no such proceedings are contemplated or threatened;
neither the Company nor any of its subsidiaries is subject to
any judgment, order, decree, rule or regulation of any court
or other governmental or regulatory authority or body which
would reasonably be expected to have, singly or in the
aggregate, a Material Adverse Effect;
(g) The execution, delivery and performance of this Agreement by
the Company and the consummation of the Redemption and the
consummation of the other transactions contemplated by the
Redemption Documents (i) will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a
default or cause an acceleration of, or result in the
imposition or creation of (or the obligation to create or
impose) any security interest, mortgage, pledge, claim, lien,
encumbrance or adverse interest of any nature (each, a "Lien")
with respect to any obligation under, the charter or bylaws of
the Company or any of its subsidiaries, or any bond, note,
debenture or any other evidence of indebtedness or any
indenture, mortgage, deed of trust or other agreement or
instrument to which the
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Company or any of its subsidiaries is a party or by which it
or any of them is bound, or any order, rule or regulation of
any court or governmental agency or authority entered in any
proceeding to which the Company or any of its subsidiaries was
or is a party or by which it or any of them is bound, or to
which any properties of the Company or any of its subsidiaries
is or may be subject, or an acceleration of indebtedness
pursuant to the charter or bylaws, or other equivalent
instruments, of the Company or any of its subsidiaries, or any
order of any United States federal or state authority,
regulatory body, administrative agency, court or other
governmental or quasi-governmental body, including the
Commission, having jurisdiction over the Company or any of its
subsidiaries or any of their properties, or violate or
conflict with any statute, rule or regulation or
administrative regulation or decree or court decree applicable
to the Company or any of its subsidiaries or affiliates or any
of its assets or properties where, in any such instance, such
conflict, breach, violation, default, acceleration of
indebtedness or Lien would reasonably be expected to have,
singly or in the aggregate, a Material Adverse Effect and (ii)
will not conflict with or violate any United States federal or
state rule, regulation, statute, law, order or decree of any
United States federal or state authority, regulatory body,
administrative agency, court or other governmental or
quasi-governmental body, including the Commission, applicable
to the Company or any of its subsidiaries or any of its
properties or assets;
(h) This Agreement has been duly authorized and validly executed
and delivered by the Company and constitutes a legal, valid
and binding agreement of the Company, enforceable against the
Company in accordance with its terms;
(i) No injunction or restraining order or any adverse motion,
ruling, declaration, decree or other order has been issued or
proceedings, litigation or investigation initiated or, to the
best knowledge of the Company, threatened (and no adverse
development in any pending litigation shall have occurred) by
or before, any United States federal or state authority,
regulatory body, administrative agency, court or other
governmental or quasi-governmental body, including the
Commission, with respect to: (i) the making or the
consummation of the Redemption or the other transactions
contemplated by the Redemption Documents; and (ii) the
execution, delivery or performance by the Company of this
Agreement;
(j) Except as disclosed in the Redemption Documents, there has not
occurred since the date of the most recent audited financial
statements contained in the S-3 any Material Adverse Effect,
or any development involving a prospective Material Adverse
Effect, in the properties, plans, business, results of
operations, general affairs, management, condition (financial
or otherwise), business prospects or business affairs of the
Company, together with its subsidiaries and its affiliates
taken as a whole;
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(k) The Company has or upon consummation of the Redemption will
have sufficient funds available, and has or will have
sufficient authority to use such funds under applicable law,
to enable it to pay in accordance with the terms of the
Redemption (i) the full consideration that it would have to
pay if all of the Subject Warrants are redeemed pursuant to
the Redemption, and (ii) the fees and expenses payable
pursuant to this Agreement;
(l) The Redemption as described in the Redemption Documents do not
violate the terms of the Subject Warrants;
(m) The Company is not, nor will it be as a result of the purchase
by it of the Subject Warrants that it may become obligated to
purchase pursuant to the terms of the Redemption, an
"investment company" under the Investment Company Act of 1940
and the rules and regulations promulgated by the Commission
thereunder; and
(n) The Redemption is not required to be registered pursuant to
the Securities Act and does not require any filings with the
Commission pursuant to Sections 13 or 14 of the Exchange Act.
8. Covenants of the Company and Conditions to Obligations. Your obligation
to render services pursuant to this Agreement shall at all times be
subject, in your discretion, to the following conditions, which (except
for clauses 8(f), 8(i) and 8(j)) the Company covenants to effect:
(a) The Company shall at all times during the Redemption have
performed in all material respects all of their obligations
hereunder theretofore to be performed;
(b) All representations and warranties of the Company contained in
this Agreement are now, and at the commencement of, and at all
times during the continuance, and upon the consummation of,
the Redemption, shall be true and correct;
(c) Prior to the commencement and at the consummation of the
Redemption, the Company shall deliver to you a certificate
from the Company, dated such date and signed by a senior
officer of the Company, to the effect that the representations
and warranties of the Company contained in this Agreement are
true and correct as of such date and that the Company has
complied in all material respects with all of the agreements
and satisfied all of the conditions on its part to be
performed or satisfied on or before such date;
(d) On or prior to the commencement of the Redemption and again at
the consummation of the Redemption, you shall have received
the opinions as set forth below of Kegler, Brown, Hill &
Ritter, counsel of the Company, dated such
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date and reasonably satisfactory to Kaye, Scholer, Fierman,
Hays & Handler, LLP, your counsel, substantially to the effect
that:
(1) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the
laws of the State of Delaware. The Company has the
corporate power and corporate authority to enter into
and perform its obligations under this Agreement.
This Agreement has been duly authorized and validly
executed and delivered by the Company.
(2) The Company has taken all corporate action necessary
to authorize the making and consummation of the
Redemption and the other transactions contemplated by
the Redemption Documents.
(3) The Redemption is not required to be registered
pursuant to the Securities Act and do not require any
filings with the Commission pursuant to Sections 13
or 14 of the Exchange Act. [The Redemption and the
Redemption Documents comply in all material respects
with Rule 14e-1 of the Exchange Act.]
(4) Such counsel participated in the preparation of the
(a) S-3, and (b) the other Redemption Documents and
such other offering materials and information as the
Company has prepared or approved in connection with
the Redemption. Although such counsel has not
independently verified and accordingly is not passing
upon, and does not assume responsibility for, the
accuracy, completeness or fairness of the statements
contained in the documents referred to in (a) and (b)
above and such counsel has relied as to materiality
to a large extent upon the judgment of officers of
the Company, on the basis of the information that was
developed in the course of the services referred to
above, no facts have come to such counsel's attention
which has caused such counsel, to believe that the
any of such documents (apart from the financial and
market data and statistical information contained or
incorporated by reference therein, as to which such
counsel need express no opinion) contain any untrue
statement of a material fact or omit to state a
material fact required to be stated therein or
necessary in order to make the statements therein, in
light of the circumstances under which they were
made, not misleading;
(5) No consent, approval, authorization or other order
of, or filing with, any Governmental Authority is
legally required for the execution by the Company in
connection with the commencement or consummation by
the Company of the Redemption. The term "Governmental
Authority" means any federal or New York executive,
legislative, judicial, administrative or regulatory
body or under the General Corporation Law of the
State of Delaware, including, without limitation, the
Commission.
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(6) The execution, delivery and performance of this
Agreement by the Company and the consummation of the
Redemption and the other transactions contemplated by
the Redemption Documents: (A) will not result in a
breach or violation of the charter or bylaws of the
Company, (B) will not conflict with or violate any
Applicable Law or Applicable Order and (C) will not
violate or cause a breach or default under, to the
knowledge of such counsel, any material agreement,
instrument, contract or document evidencing any other
obligation of the Company or its subsidiaries, except
that such counsel need express no opinion in this
paragraph as to whether the Redemption Documents
contain any untrue statement of a material fact or
omit to state a material fact necessary in order to
make the statements therein, in light of the
circumstances under which they were made, not
misleading. The term "Applicable Laws" means those
laws, rules and regulations of the State of New York
and the United States and the provisions of the
General Corporation Law of the State of Delaware
that, in the experience of such counsel, are normally
applicable to transactions of the type contemplated
by the Redemption, and the term "Applicable Orders"
means those orders or decrees of Delaware, New York
or federal Governmental Authorities by which the
Company is bound, the existence of which is actually
known to such counsel or has been specifically
disclosed in writing by the Company to Kaye, Scholer,
Fierman, Hays & Handler, LLP.
(7) To the knowledge of such counsel, no restraining
order or injunction has been issued by, and no
investigation, action, claim, suit or proceeding has
been initiated or threatened by or before, any
federal, New York or Delaware authority, regulatory
body, administrative agency, court or other
governmental or quasi-governmental body, or under the
General Corporation Law of the State of Delaware,
including the Commission, with respect to (A) the
making or the consummation of any Redemption, or (B)
the execution, delivery or performance by the Company
of this Agreement.
(e) At all times during the pendency of the Redemption, the
Company shall have furnished to you or your counsel, as the
case may be, such information, certificates and documents as
you or your counsel shall have reasonably requested;
(f) It shall not have become unlawful under any law or regulation,
Federal, state or local, for you to render services pursuant
to this Agreement, or to continue so to act, as the case may
be;
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(g) The Company will have advised you promptly of (i) the
occurrence of any event that could cause the Company to
withdraw or terminate the Redemption or would permit the
Company not to consummate the Redemption and (ii) the issuance
to the Company of any comment or order by the Commission or
any other governmental or regulatory authority or body
concerning the Redemption;
(h) The Company represents that it has not retained or caused to
be retained and, during the term of this Agreement, will not
retain or cause to be retained as financial advisor, placement
agent, dealer manager or underwriter any other person to
advise or assist it (other than the Agent) with the Redemption
or otherwise directly or indirectly to use any other person to
contact, approach or negotiate with Holders with respect to
the Redemption other than you as their exclusive agent; and
(i) All opinions, certificates, letters and other documents
required by this Section 8 will be in compliance with the
provisions hereof only if they are reasonably satisfactory in
form and substance to you and to Kaye, Scholer, Fierman, Hays
& Handler, LLP, your counsel. The Company will furnish you
with such conformed copies of such opinions, certificates,
letters and other documents as you shall reasonably request.
(j) The National Association of Securities Dealers, Inc. shall
have reviewed and approved this Agreement and authorized SNC
to perform its obligations hereunder.
9. Reference to You. The Company agrees that any reference to you or any
of your affiliates in any Redemption Document, or any other release,
publication or communication to any party outside the Company, is
subject to your prior approval. If you resign or are terminated prior
to the dissemination of any Redemption Document or any other release or
communication, no reference shall be made therein to you without your
prior written permission.
10. Access to Information. In connection with your activities hereunder,
the Company agrees to furnish you and your counsel with all information
concerning the Company that you reasonably deem appropriate and agrees
to provide you with reasonable access to the Company's officers,
directors, accountants, counsel, consultants and other appropriate
agents and representatives. To the extent consistent with legal
requirements, all information given to you by the Company, unless
publicly available or otherwise available to you or which otherwise
becomes available to you without restriction or breach of any
confidentiality agreement, shall be held by you in confidence and shall
not be disclosed to anyone other than your agents and advisors without
the Company's prior approval or used for any purposes other than those
referred to in this Agreement.
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11. Survival of Certain Provisions. The indemnity and contribution
agreements contained in Section 6 of this Agreement (including Schedule
A hereto), the representations and warranties and covenants of the
Company made pursuant to Sections 7 and 8 of this Agreement, the
provisions contained in Sections 4 and 5 of this Agreement and this
Section 11 shall remain operative and in full force and effect
regardless of (a) any investigation made by or on behalf of you or by
or on behalf of any Indemnified Person (as defined in Schedule A
hereto), (b) consummation of the Redemption or any other transaction
contemplated by the Redemption Documents, or (c) any termination or
expiration of this Agreement, and shall be binding upon, and shall
inure to the benefit of, any successors, assigns, heirs and personal
representatives of the Company, you, the Indemnified Persons and any
such person.
12. Notices. Notice given pursuant to any of the provisions of this
Agreement shall be in writing and shall be mailed or delivered (a) to
the Company at 1675 Broadway, Suite 2150, Denver, Colorado, 80202,
Attn: A. Bradley Gabbard, with a copy to Paul R. Hess, Esq., Kegler,
Brown, Hill & Ritter Co., L.P.A., 63 East State Street, Suite 1800,
Columbus, Ohio 43215; and (b) to you at 1125 17th Street, Suite 1500,
Denver, Colorado 80202, Attn: Bill Dunn, with a copy to Kaye, Scholer,
Fierman, Hays & Handler, LLP, 425 Park Avenue, New York, New York,
Attn: Richard Kronthal, Esq.
13. Construction. This Agreement, including Schedule A hereto, incorporates
the entire understanding of the parties with respect to the Redemption
and supersedes all previous agreements and shall be governed by, and
construed in accordance with, the laws of the State of New York as
applied to contracts made and performed in such State, without regard
to principles of conflicts of law. The Company hereby irrevocably and
unconditionally submit to the exclusive jurisdiction of the Federal and
New York State courts located in the City of New York in connection
with any suit, action or proceeding related to this Agreement or any of
the matters contemplated hereby, irrevocably waive any defense of lack
of personal jurisdiction and irrevocably agree that all claims in
respect of any suit, action or proceeding may be heard and determined
in any such court. The Company irrevocably waive, to the fullest extent
they may effectively do so under applicable law, any objection which
they may now or hereafter have to the laying of venue of any such suit,
action or proceeding brought in any such court and any claim that any
such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum and agree that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner
provided by law.
14. Severability. Any determination that any provision of this Agreement
(including any provision of Schedule A hereto) may be or is,
unenforceable shall not affect the enforceability of the remainder of
this Agreement (including any provision of Schedule A hereto).
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15. Headings. The section headings in this Agreement have been inserted as
a matter of convenience of reference and are not to be deemed to be
part of this Agreement.
16. Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all
of which shall constitute but one and the same instrument.
17. Third Party Beneficiaries. This Agreement has been and is made solely
for the benefit of the Company, you and the other Indemnified Persons
referred to in Section 6 and Schedule A hereto and their respective
successors, heirs, personal representatives and assigns, and no other
person shall acquire or have any right under or by virtue of this
Agreement. You shall have no liability or obligation to the Company for
any act or omission of any Broker, and you do not undertake any
obligation to the Company other than for the performance of your
express representations, warranties and agreements hereunder. The
Company agrees and acknowledges that the only information furnished or
to be furnished by you or on your behalf for inclusion in the
Redemption Documents is the description of yourself and your
relationship with the Company to be included in such Redemption
Documents.
18. Advertisements. Subject to the Company's reasonable approval, the
Company agrees that you shall have the right to place advertisements in
financial and other newspapers and journals at your own expense
describing your services to the Company hereunder; provided the
publication of such advertisements shall comply with applicable law.
19. Modification. This Agreement may not be modified or amended except in
writing, duly executed by the parties hereto.
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If the foregoing terms correctly set forth our agreement,
please confirm this by signing and returning a duplicate copy of this letter.
Thereupon, this letter, as signed in counterpart, shall constitute our agreement
on the subject matter herein.
METRETEK TECHNOLOGIES, INC.
By:________________________________
Name:
Title:
Confirmed and agreed to as
of the date first above written:
STIFEL, NICOLAUS & COMPANY, INC.
By:_____________________________
Name:
Title:
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<PAGE> 17
SCHEDULE A
This Schedule A is a part of and is incorporated into that
certain Dealer Manager Agreement (together, this "Agreement") dated July ___,
2000, between Metretek Technologies, Inc. and Stifel, Nicolaus & Company, Inc.
Capitalized terms used herein without definition shall have the meanings
ascribed to them in such Agreement.
The Company agrees to indemnify and hold harmless you, your
affiliates and any other persons controlling you or any of your affiliates
within the meaning of Section 15 of the Securities Act of 1933, as amended, or
Section 20 of the Securities Exchange Act of 1934, as amended, and each of your
and their respective officers, directors, partners, employees, representatives
and agents (you and each such other person or entity being referred to as an
"Indemnified Person"), from and against all losses, claims, damages, judgments,
costs, assessments and other liabilities (collectively, "Liabilities"),
including, without limitation and as incurred, reimbursement of all costs of
investigating, preparing, pursuing, or defending against any such Liability,
including the reasonable fees and expenses of counsel to the Indemnified
Persons, whether or not arising out of pending or threatened litigation or other
action, proceeding or arbitration and whether or not any Indemnified Person is a
party thereto, directly or indirectly caused by, related to, based upon, arising
out of, or in connection with (i) actions taken or omitted to be taken by
Company, its affiliates, employees, directors, officers, partners,
representatives, or agents in connection with any transaction contemplated by
this Agreement, including, without limitation (a) any withdrawal or termination
by the Company of, or failure by the Company to make or consummate, the
Redemption and (b) any failure by the Company to comply with any agreement or
covenant or the untruth of any representation or warranty contained in this
Agreement; (ii) actions taken or omitted to be taken by any Indemnified Person
pursuant to the terms of, or in connection with services rendered pursuant to,
this Agreement; provided, however, that, in the case of this subsection (ii)
only, the Company shall not be responsible for any Liability or related expense
arising solely out of or based solely upon the willful misconduct or gross
negligence (as determined by the final judgment of a court of competent
jurisdiction, no longer subject to appeal or further review) of such Indemnified
Person; and (iii) any untrue statement or alleged untrue statement of a material
fact contained in any Redemption Document or any omission or alleged omission to
state therein a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading (other than any
such statement or alleged statement contained in the Redemption Notice, or any
such omission or alleged omission therefrom, in each case, with respect to
information relating to an Indemnified Person which information has been
furnished in writing by or on behalf of such Indemnified Person expressly for
use therein). The Company shall notify you and any Indemnified Person against
whom there is instituted, threatened, or asserted any litigation, proceeding or
claim promptly of such institution, threat or assertion, which involves the
Company or any of its affiliates, assets or properties (and as to which the
Company has notice) in connection with the matters addressed by this Agreement.
If any action or proceeding (including any governmental investigation) shall be
brought or asserted against any
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Indemnified Person in respect of which indemnity may be sought from the Company,
such Indemnified Person shall promptly notify the Company in writing (provided
that the failure of any Indemnified Person to give such notice shall not relieve
the Company of its obligations pursuant to this Agreement, except to the extent
the Company shall have been materially prejudiced by such failure) and the
Company shall have the right to assume the defense thereof, including the
employment of counsel reasonably satisfactory to you and the payment of all
expenses in connection therewith. Such Indemnified Person shall have the right
to employ separate counsel in any such action or proceeding and to participate
in the defense thereof, but the fees and expenses of such counsel shall be at
your expense or that of such Indemnified Person, unless (a) the Company has
agreed to pay the fees and expenses of such counsel, (b) the Company shall have
failed promptly (after notice thereof from any person) to assume the defense of
such action or proceeding and employ counsel reasonably satisfactory to you in
any such action or proceeding, or (c) the named parties to any such action or
proceeding (including any impleaded parties) include both you or such
Indemnified Person, and such Indemnified Person shall have been advised by
counsel that there may be one or more legal defenses available to you or such
Indemnified Person which are different from or additional to those available to
the Company (in which case, if you or such Indemnified Person notifies the
Company in writing that it elects to employ separate counsel at the expense of
the Company, the Company shall not have the right to assume the defense of such
action or proceeding on behalf of you or such Indemnified Person), it being
understood, however, that the Company shall not, in connection with any one such
action or proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys (together with appropriate local counsel) at any
time for all such Indemnified Persons, which firm shall be designated in writing
by you. The Company will not, without your prior consent, settle, compromise or
consent to the entry of any judgment or otherwise seek to terminate any pending
or threatened action or proceeding in respect of which indemnification or
contribution may be sought pursuant to this Agreement (whether or not any
Indemnified Person is a party thereto), unless such settlement, compromise,
consent or termination includes an unconditional release of each Indemnified
Person from all Liabilities arising out of such action, claim, litigation or
proceeding. Without the Company's prior written consent (which consent shall not
be unreasonably withheld), no Indemnified Person shall settle, compromise or
consent to the entry of any judgment or otherwise seek to terminate any pending
or threatened action or proceeding in respect of which indemnification or
contribution is sought hereunder.
If the indemnification provided for herein is finally
determined by a court of competent jurisdiction to be unavailable to an
Indemnified Person under the first paragraph of this Schedule A in respect of
any Liability or related expense, then the Company, in lieu of indemnifying such
Indemnified Person, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such Liabilities and related expenses (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company and its subsidiaries on the one hand and by you on the other, from
the services rendered pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above, but also the
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relative fault of the Company and its subsidiaries on the one hand and the
Indemnified Person on the other, as well as any other relevant equitable
considerations. The relative benefits received by the Company and its
subsidiaries on the one hand and received by SNC (and its related Indemnified
Persons), on the other hand, with respect to the Redemption and other
transactions contemplated by the Redemption Documents shall be deemed to be in
the same proportion as (a) the total value of the consideration proposed to be
offered by the Company in connection with such Redemption and other transactions
contemplated by the Redemption Documents bears to (b) the fees actually paid to
you with respect to such Redemption and other transactions contemplated by the
Redemption Documents less any amounts paid or payable or other liabilities
incurred by SNC or any Indemnified Person in respect of transactions
contemplated by this Agreement. The relative fault of the Company and its
subsidiaries on the one hand and such Indemnified Person on the other hand with
respect to the Redemption and other transactions contemplated by the Redemption
Documents shall be determined by reference to, among other things, whether any
untrue or alleged untrue statement of material fact or the omission or alleged
omission to state a material fact related to information supplied by the Company
and its subsidiaries or by such Indemnified Person (it being understood that the
only information being provided by the Indemnified Persons is that information,
if any, expressly related to SNC and SNC's respective relationships with the
Company) and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. Notwithstanding
the provisions of this Agreement, the Indemnified Persons, in the aggregate,
shall not be required to contribute any amount in excess of the amount of fees
actually received by you pursuant to Section 4 of this Agreement in connection
with such Redemption and other transactions contemplated by the Redemption
Documents, less any amounts paid or payable or other liabilities incurred by SNC
or any Indemnified Person in respect of transactions contemplated by this
Agreement. The Company and you agree that it would not be just and equitable if
contribution pursuant to this paragraph were determined by pro rata allocation
or by any other method of allocation which does not take into account the
equitable considerations referred to above. The Company also agrees that no
Indemnified Person shall have any liability to the Company for or in connection
with this Agreement and the engagement of you hereunder, except for such
Liabilities (and related expenses) incurred by the Company which arise from
actions taken by an Indemnified Person and then only to the extent they are
determined by a court of competent jurisdiction in a final judgment not subject
to appeal or further review to have resulted solely from such Indemnified
Person's willful misconduct or gross negligence.
The indemnity and contribution obligation of the Company set
forth herein shall be in addition to any liability or obligation the Company may
otherwise have to any Indemnified Person.
3
