-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, DhXzRrm2kV3KKaa9wwQH1VfK+FABsBu98cg/V2txU6XXUivfKUYEiyb7RfZ5MaJv xt9TYNzzmgoZJ0KgIi36JA== 0001005477-99-005111.txt : 19991115 0001005477-99-005111.hdr.sgml : 19991115 ACCESSION NUMBER: 0001005477-99-005111 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19991112 GROUP MEMBERS: 1994 WILLIAM J. YUNG FAMILY TRUST GROUP MEMBERS: CASUARINA CAYMAN HOLDINGS LTD. GROUP MEMBERS: JOSEPH YUNG, INVESTMENT ADVISOR TO THE 1994 GROUP MEMBERS: WILLIAM J. YUNG GROUP MEMBERS: WILLIAM J. YUNG FAMILY TRUST GROUP MEMBERS: YUNG WILLIAM J SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: LODGIAN INC CENTRAL INDEX KEY: 0001066138 STANDARD INDUSTRIAL CLASSIFICATION: HOTELS & MOTELS [7011] IRS NUMBER: 522093696 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-54947 FILM NUMBER: 99746418 BUSINESS ADDRESS: STREET 1: 3445 PEACHTREE ROAD N E SUITE 700 CITY: ATLANTA STATE: CA ZIP: 30326 BUSINESS PHONE: 4043649400 MAIL ADDRESS: STREET 1: 3445 PEACHTREE ROAD N E SUITE 700 CITY: ATLANTA STATE: CA ZIP: 30326 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: YUNG WILLIAM J CENTRAL INDEX KEY: 0001097189 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 207 GRANDVIEW DRIVE CITY: FT MITCHELL STATE: KY ZIP: 41017 BUSINESS PHONE: 6063310091 MAIL ADDRESS: STREET 1: 207 GRANDVIEW DRIVE CITY: FT MITCHELL STATE: KY ZIP: 41017 SC 13D/A 1 AMENDMENT NO. 1 TO SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 1) LODGIAN, INC. (Name of Issuer) Common Stock (Title of Class of Securities) 54021P106 (CUSIP Number) Casuarina Cayman Holdings Ltd. 1994 William J. Yung Family Trust William J. Yung c/o Columbia Sussex Corporation 207 Grandview Drive Fort Mitchell, Kentucky 41017 Attn: Mr. William J. Yung with a copy to: Paul, Weiss, Rifkind, Wharton & Garrison 1285 Avenue of the Americas New York, NY 10019-6064 Attn: James M. Dubin, Esq. November 9, 1999 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]. Note: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). SCHEDULE 13D CUSIP No. 54021P106 Page 2 of 17 Pages --------- 1 NAME OF REPORTING PERSONS S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS Casuarina Cayman Holdings Ltd. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP */ (a)[ ] (b)[ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS */ Not Applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION Cayman Islands, B.W.I. 7 SOLE VOTING POWER NUMBER OF 0 SHARES BENEFICIALLY OWNED 8 SHARED VOTING POWER BY EACH REPORTING PERSON 0 WITH 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES */ [ ] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0% 14 TYPE OF REPORTING PERSON */ CO - ---------- */ See Instructions Before Filling Out SCHEDULE 13D CUSIP No. 54021P106 Page 3 of 17 Pages --------- 1 NAME OF REPORTING PERSONS S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS 1994 William J. Yung Family Trust 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP */ (a)[X] (b)[ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS */ Not Applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION Kentucky 7 SOLE VOTING POWER NUMBER OF 0 SHARES BENEFICIALLY OWNED 8 SHARED VOTING POWER BY EACH REPORTING PERSON 0 WITH 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,598,100 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES */ [ ] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.3215% 14 TYPE OF REPORTING PERSON */ OO - ---------- */ See Instructions Before Filling Out SCHEDULE 13D CUSIP No. 54021P106 Page 4 of 17 Pages --------- 1 NAME OF REPORTING PERSONS S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS Joseph Yung, Investment Advisor to the 1994 William J. Yung Family Trust 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP */ (a)[X] (b)[ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS */ Not Applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States of America 7 SOLE VOTING POWER NUMBER OF 2,546,138 SHARES BENEFICIALLY OWNED 8 SHARED VOTING POWER BY EACH REPORTING PERSON 0 WITH 9 SOLE DISPOSITIVE POWER 2,546,138 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,598,100 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES */ [ ] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.3215% 14 TYPE OF REPORTING PERSON */ IN - ---------- */ See Instructions Before Filling Out SCHEDULE 13D CUSIP No. 54021P106 Page 5 of 17 Pages --------- 1 NAME OF REPORTING PERSONS S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS William J. Yung 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP */ (a)[X] (b)[ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS */ Not Applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States of America 7 SOLE VOTING POWER NUMBER OF 51,962 SHARES BENEFICIALLY OWNED 8 SHARED VOTING POWER BY EACH REPORTING PERSON 0 WITH 9 SOLE DISPOSITIVE POWER 51,962 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,598,100 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES */ [ ] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.3215% 14 TYPE OF REPORTING PERSON */ IN - ---------- */ See Instructions Before Filling Out Page 6 of 17 Item 1. Security and Issuer. Item 1 is restated in its entirety as follows. This Schedule 13D relates to the Common Stock, par value $.01 per share (the "Shares"), of Lodgian, Inc., a Delaware corporation. The address of Lodgian, Inc.'s principal executive offices is Two Live Oak Center, 3445 Peachtree Road, N.E., Suite 700, Atlanta, Georgia 30326. Item 2. Identity and Background. The information below supplements the information previously reported in Item 2. This statement on Schedule 13D is being filed by the 1994 William J. Yung Family Trust (the "Trust"), Joseph Yung (an individual), as Investment Advisor to the Trust, and William J. Yung (an individual). On November 9, 1999, Casuarina Cayman Holdings Ltd. ("Casuarina") transferred all 2,598,100 of its Shares to its shareholders. Casuarina's shareholders are the Trust and William J. Yung. Casuarina transferred 2,546,138 Shares to the Trust and 51,962 Shares to William J. Yung. The Trust was organized under the laws of Kentucky. The business of the Trust is to hold its assets for the beneficiaries of the Trust in accordance with the Trust Agreement dated December 19, 1994 and to dispose of such assets and make distributions to such beneficiaries in accordance with the Trust Agreement.**/ The address of the Trust's principal office is 207 Grandview Drive, Fort Mitchell, Kentucky 41017. Joseph Yung is the Investment Advisor to the Trust. Joseph Yung's principal occupation is Director of Development of Columbia Sussex Corporation. Joseph Yung is a citizen of the United States of America. William J. Yung's principal occupation is President and Chief Executive Officer of Columbia Sussex Corporation. William J. Yung is a citizen of the United States of America. Columbia Sussex Corporation's principal business is owning and managing hotels. The address of Columbia Sussex Corporation's principal office and Joseph Yung is 207 Grandview Drive, Fort Mitchell, Kentucky 41017. The business address of William J. Yung is 1200 Cypress Street, Cincinnati, Ohio 45206. - -------- **/ The ultimate beneficiaries of the trust are William J. Yung's seven children: Joseph Yung, Julie Yung, Judy Yung, Jenny Yung, Michelle Yung, Scott Yung and William J. Yung, IV. Page 7 of 17 During the past five years, none of the Trust, Joseph Yung or William J. Yung has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). During the past five years, none of the Trust, Joseph Yung or William J. Yung has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding, was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Item 3. Source and Amount of Funds or Other Consideration. The information below supplements the information previously reported in Item 3. No consideration was paid by either the Trust or William J. Yung for the Shares transferred to them by Casuarina. Item 4. Purpose of Transaction. The information below replaces the information previously reported in Item 4. Casuarina and its affiliates have retained a financial advisor, Greenhill & Co., LLC ("Greenhill"), to assist them in evaluating their strategic alternatives in respect of their investment in Lodgian, Inc. The pursuit of available strategic alternatives may result in (a) the acquisition by any person of additional securities of Lodgian, Inc., including by way of tender offer, or the disposition of securities of Lodgian, Inc.; (b) an extraordinary corporate transaction, such as a merger, reorganization or liquidation involving Lodgian, Inc. or any of its subsidiaries; (c) a sale or transfer of a material amount of assets of Lodgian, Inc. or any of its subsidiaries; (d) a change in the present board of directors or management of Lodgian, Inc. (which may include proxy solicitations by the Trust and William J. Yung), including any plans or proposals to change the number or term of directors or to fill any vacancies on the board; (e) a material change in the present capitalization or dividend policy of Lodgian, Inc.; (f) a material change in Lodgian, Inc.'s business or corporate structure; (g) changes in Lodgian, Inc.'s charter, bylaws or instruments corresponding thereto or other actions which may impede the acquisition of control of Lodgian, Inc. by any person; (h) a class of securities of Lodgian, Inc. being delisted from a national securities exchange or ceasing to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (i) the common stock of Lodgian, Inc. becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Securities Exchange Act; (j) a proposal being placed before the stockholders of Lodgian, Inc. at an upcoming annual or special meeting of stockholders in connection with any of the foregoing; or (k) any action similar to the Page 8 of 17 foregoing. The Trust and William J. Yung may formulate a plan or proposal relating to one or more of the foregoing matters. William J. Yung may seek representation on the Board of Directors of Lodgian, Inc. While William J. Yung has no specific plans or proposals relating to obtaining representation on the Board of Directors of Lodgian, Inc., such representation may involve a plan or proposal to change the number or term of directors or to fill an existing vacancy on the Board and may involve solicitation of proxies to obtain such representation. Although the Trust and William J. Yung are actively exploring their options with respect to each of the foregoing, there can be no assurance that the Trust and William J. Yung will actually seek to implement any of the foregoing. Item 5. Interest in Securities of the Issuer. The information below replaces the information previously reported in Item 5. (a) The Trust directly owns 2,546,138 Shares, which represents approximately 9.1351% of the outstanding Shares. Joseph Yung, as Investment Advisor to the Trust, may be deemed to have beneficial ownership of all the Shares owned by the Trust. William J. Yung may, pursuant to Rule 13d-5 of the Securities Exchange Act of 1934, be deemed to be the beneficial owner of the 2,546,138 shares owned directly by the Trust. William J. Yung directly owns 51,962 Shares, which represents approximately .1864% of the outstanding Shares. The Trust and Joseph Yung may, pursuant to Rule 13d-5 of the Securities Exchange Act of 1934, be deemed to be the beneficial owner of the 51,962 Shares owned directly by William J. Yung. (b) Joseph Yung has the sole power to vote and the sole power to dispose with respect to the 2,546,138 Shares owned directly by the Trust. William J. Yung has the sole power to vote and the sole power to dispose with respect to the 51,962 Shares owned directly by him. (c) Set forth below is a schedule of transactions of the Shares effected by Casuarina during the 60 days preceding the date of this filing, all of which involved purchases of Shares by Casuarina which were made through broker/dealer transactions. Date of Transaction No. of Shares Purchase Price Per Share - ------------------- ------------- ------------------------ October 4, 1999 210,000 200,000 @ $4 10,000 @ $3-7/8 October 6, 1999 625,800 625,800 @ $4 Page 9 of 17 October 7, 1999 5,400 5,400 @ $4 October 8, 1999 13,900 13,900 @ $4 October 11, 1999 29,900 29,900 @ $4 October 12, 1999 88,300 88,300 @ $4 October 13, 1999 125,000 6,000 @ $4 10,000 @ $4-1/16 109,000 @ $4-1/8 October 14, 1999 35,000 35,000 @ $4-3/16 October 15, 1999 121,500 121,500 @ $4-1/4 On November 9, 1999, Casuarina transferred all of its Shares to its shareholders. The shareholders of Casuarina are the Trust and William J. Yung. Casuarina transferred 2,546,138 Shares to the Trust and 51,962 Shares to William J. Yung. Neither the Trust nor William J. Yung paid any consideration to Casuarina for such Shares. (e) On November 9, 1999, Casuarina ceased to be the beneficial owner of more than five percent of the outstanding Shares of Lodgian, Inc. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. Casuarina and its affiliates have entered into an Engagement Letter with Greenhill, dated November 10, 1999, under which Casuarina and its affiliates have retained Greenhill to act as financial advisor in connection with the evaluation of their strategic alternatives in respect of their investment in Lodgian, Inc. The Engagement Letter is attached hereto as Exhibit 1. Item 7. Material to be Filed as Exhibits. The following Exhibit is filed with this Amendment No. 1: Exhibit 1. Engagement Letter between Casuarina Cayman Holdings Ltd. and Greenhill & Co., LLC, dated November 10, 1999 Page 10 of 17 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: November 10, 1999 1994 William J. Yung Family Trust By: The Fifth Third Bank, as Trustee By: /s/ Timothy A. Rodgers ------------------------ Name: Timothy A. Rodgers Title: Trust Officer /s/ Joseph Yung --------------- Joseph Yung /s/ William J. Yung ------------------- William J. Yung Page 11 of 17 Exhibit Index ------------- Exhibit Description ------- ----------- 1 Engagement Letter between Casuarina Cayman Holdings Ltd. and Greenhill & Co., LLC, dated November 10, 1999 EX-1 2 EXHIBIT 1 Page 12 of 17 EXHIBIT 1 November 10, 1999 Mr. William J. Yung President Casuarina Cayman Holdings Ltd. c/o Columbia Sussex Corporation 207 Grandview Drive Ft. Mitchell, KY 41017-2799 Dear Bill: The purpose of this letter is to confirm the engagement of Greenhill & Co., LLC ("Greenhill") to act as exclusive financial advisor to Casuarina Cayman Holdings Ltd. (together with any affiliates and subsidiaries, the "Company") in connection with the evaluation of all of the Company's strategic alternatives in respect of its investment in Lodgian, Inc. ("Lodgian") which may include, without limitation, consummation of a Transaction. For purposes of this letter agreement, a "Transaction" shall mean, whether in one or a series of transactions, the acquisition or purchase by the Company and its partners, directly or indirectly, of all or a significant portion of Lodgian, whether by way of negotiated purchase, minority or majority investment, merger, partnership, joint venture or otherwise. The Company hereby appoints Greenhill with the exclusive right to advise on its strategic alternatives, including the possibility of a Transaction involving Lodgian, including the arranging of the Company's partners and lenders in any such Transaction that may arise. 1. In connection with its engagement hereunder, Greenhill shall: a. review the business and operations of Lodgian and its historical and projected financial results; b. identify and contact potential partners for the Company in a Transaction; c. prepare and negotiate (and, if authorized, execute on behalf of the Company) any confidentiality agreements to be entered into by potential partners and other third parties in connection with a Transaction; d. assist the Company in negotiations with potential partners and/or Lodgian related to a Transaction and evaluate and recommend alternatives with respect to a Transaction; e. assist the Company in the structuring, negotiating and closing phases of the Transaction; and Page 13 of 17 f. provide such other financial advisory and investment banking services as are customary for similar transactions and as may be mutually agreed upon by the Company and Greenhill. We are convinced that our numerous relationships with both financial and strategic investors in the real estate industry as well as our extensive experience in structuring and executing large corporate M&A assignments will be of significant benefit to the Company in the Transaction. 2. As compensation for Greenhill's services hereunder, the Company hereby agrees to pay Greenhill the following fees: a. Retainer Fee A retainer fee of $250,000 (the "Retainer Fee"), payable in five installments, with $50,000 to be paid at the time of the signing of this Agreement and $50,000 to be paid in four monthly installments beginning 30 days after signing as long as this Agreement remains in effect. The Retainer Fee will be fully credited against the payment of any Transaction Fee. b. Transaction Fee A transaction fee (the "Transaction Fee") equal to 60 basis points (0.6%) of the Transaction Value. The Transaction Fee is payable in cash promptly upon the consummation of a Transaction. Greenhill will be paid the full amount of the Transaction Fee if, during the term of this agreement or within 12 months thereafter, a Transaction is consummated or a definitive agreement is entered into that subsequently results in a Transaction. For the purpose of calculating a Transaction Fee, "Transaction Value" shall equal the total gross proceeds and other consideration paid or to be paid in connection with a Transaction (which consideration shall be deemed to include amounts in escrow, payments made in installments, and contingent payments), including, without limitation: (i) cash; (ii) notes, securities and other property; (iii) liabilities, including all debt, pension liabilities and guarantees, assumed or newly incurred in connection with the Transaction; (iv) payments made in installments; (v) amounts paid or payable under agreements not to compete or similar agreements; and (vi) contingent payments (whether or not related to future earnings or operations). For purposes of computing any fees payable to Greenhill hereunder, non-cash consideration shall be valued as follows: (x) publicly traded securities shall be valued at the average of their closing prices (as reported in The Wall Street Journal) for five trading days prior to the closing of the Transaction and (y) any other non-cash consideration shall be valued at the fair market value thereof as determined in good faith by the Company and Greenhill. Page 14 of 17 3. In addition to any fees that may be payable to Greenhill hereunder (and regardless of whether a Transaction occurs), the Company hereby agrees from time to time upon request to reimburse Greenhill promptly for travel and other reasonable out-of-pocket expenses incurred by Greenhill in performing its services hereunder, including the reasonable fees and expenses of its legal counsel. 4. The term of Greenhill's engagement as financial advisor and exclusive agent to the Company for evaluating strategic alternatives involving Lodgian shall commence on the date hereof and continue until the earlier of (i) the consummation of a Transaction and (ii) twelve months after the date hereof, unless extended by mutual written consent or earlier terminated by either party upon prior written notice; provided, however, that no such termination shall affect the indemnification, contribution and confidentiality obligations of the Company, the right of Greenhill to receive any fees payable hereunder or fees that have accrued prior to such termination or the right of Greenhill to receive reimbursement for its out-of-pocket expenses as described above. 5. The Company hereby agrees to indemnify Greenhill and related persons in accordance with the indemnification letter attached hereto as Schedule A, the provisions of which are incorporated herein by reference in their entirety. 6. The Company recognizes and confirms that Greenhill in acting pursuant to this engagement will be using information in reports and other information provided by others, including, without limitation, information provided by or on behalf of Lodgian or the Company, and that Greenhill does not assume responsibility for and may rely, without independent verification, on the accuracy and completeness of any such reports and information. The Company hereby warrants that any information relating to the Company that is furnished to Greenhill by or on behalf of the Company will be fair, accurate and complete and will not contain any material omissions or misstatements of fact. The Company agrees that any information or advice rendered by Greenhill or its representatives in connection with this engagement is for the confidential use of the Company only in its evaluation of its strategic alternatives, which may include a Transaction, and, except as otherwise required by law, the Company will not, and will not permit any third party to, disclose or otherwise refer to such advice or information in any manner without Greenhill's written consent. 7. Following the closing of a Transaction, Greenhill may, at its own expense, place announcements or advertisements in financial newspapers and journals describing its services hereunder. 8. This agreement (a) shall be governed by and construed in accordance with the laws of the State of New York, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof, (b) incorporates the entire understanding of the parties with respect to the subject matter hereof and supersedes all previous agreements should they exist with respect thereto, (c) may not be Page 15 of 17 amended or modified except in a writing executed by the Company and Greenhill and (d) shall be binding upon and inure to the benefit of the Company, Greenhill, the other Indemnified Parties (as defined in Schedule A) and their respective successors and assigns. The Company and Greenhill agree to waive trial by jury in any action, proceeding or counterclaim brought by or on behalf of either party with respect to any matter whatsoever relating to or arising out of any actual or proposed Transaction or the engagement of or performance by Greenhill hereunder. The Company acknowledges that Greenhill in connection with its engagement hereunder is acting as an independent contractor with duties owing solely to the Company and that nothing in this agreement is intended to confer upon any other person any rights or remedies hereunder or by reason hereof. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement. Please confirm that the foregoing is in accordance with your understanding of our Agreement by signing both enclosed copies and returning to us a fully executed copy of this Agreement. My colleagues and I look forward to working with you on this important assignment. Very best regards, GREENHILL & CO., LLC By: /s/ Peter C. Krause ------------------- Peter C. Krause Managing Director Accepted and agreed to as of the date set forth above: CASUARINA CAYMAN HOLDINGS LTD. By: /s/ William J. Yung ------------------- Name: William J. Yung Title: President Page 16 of 17 SCHEDULE A INDEMNIFICATION Recognizing that transactions of the type contemplated in this engagement sometimes result in litigation and that Greenhill's role is advisory, the Company agrees to indemnify and hold harmless Greenhill, its affiliates and their respective officers, directors, employees, agents and controlling persons (collectively, the "Indemnified Parties"), from and against any losses, claims, damages and liabilities, joint or several, related to or arising in any manner out of any transaction, proposal or any other matter (collectively, the "Matters") contemplated by the engagement of Greenhill hereunder, and will promptly reimburse the Indemnified Parties for all expenses (including fees and expenses of legal counsel) as incurred in connection with the investigation of, preparation for or defense of any pending or threatened claim related to or arising in any manner out of any Matter contemplated by the engagement of Greenhill hereunder, or any action or proceeding arising therefrom (collectively, "Proceedings"), whether or not such Indemnified Party is a formal party to any such Proceeding. Notwithstanding the foregoing, the Company shall not be liable in respect of any losses, claims, damages, liabilities or expenses that a court of competent jurisdiction shall have determined by final judgment resulted solely from the gross negligence or willful misconduct of an Indemnified Party. The Company further agrees that it will not, without prior written consent of Greenhill, settle, compromise or consent to the entry of any judgment in any pending or threatened Proceeding in respect of which indemnification may be sought hereunder (whether or not Greenhill or any Indemnified Party is an actual or potential party to such Proceeding), unless such settlement, compromise or consent includes an unconditional release of Greenhill and each other Indemnified Party hereunder from all liability arising out of such Proceeding. The Company agrees that if any indemnification or reimbursement sought pursuant to this letter were for any reason not to be available to any Indemnified party or insufficient to hold it harmless as and to the extent contemplated by this letter, then the Company shall contribute to the amount paid or payable by such Indemnified Party in respect of losses, claims, damages and liabilities in such proportion as is appropriate to reflect the relative benefits to the Company and its stockholders on the one hand, and Greenhill on the other, in connection with the Matters to which such indemnification or reimbursement relates or, if such allocation is not permitted by applicable law, not only such relative benefits but also the relative faults of such parties as well as any other equitable considerations. It is hereby agreed that the relative benefits to the Company and/or its stockholders and to Greenhill with respect to Greenhill's engagement shall be deemed to be in the same proportion as (i) the total value paid or received or to be paid or received by the Company and/or its stockholders pursuant to the Matters (whether or not consummated) for which Greenhill is engaged to render financial advisory services bears to Page 17 of 17 (ii) the fees paid to Greenhill in connection with such engagement. In no event shall the Indemnified Parties contribute or otherwise be liable for an amount in excess of the aggregate amount of fees actually received by Greenhill pursuant to such engagement (excluding amounts received by Greenhill as reimbursement of expenses). The Company further agrees that no Indemnified Party shall have any liability (whether direct or indirect, in contract or tort or otherwise) to the Company for or in connection with Greenhill's engagement hereunder except for losses, claims, damages, liabilities or expenses that a court of competent jurisdiction shall have determined by final judgment resulted from the gross negligence or willful misconduct of such Indemnified Party. The indemnity, reimbursement and contribution obligations of the Company shall be in addition to any liability which the Company may otherwise have and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Company or an Indemnified Party. The indemnity, reimbursement and contribution provisions set forth herein shall remain operative and in full force and effect regardless of (i) any withdrawal, termination or consummation of or failure to initiate or consummate any Matter referred to herein, (ii) any investigation made by or on behalf of any party hereto or any person controlling (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) any party hereto, (iii) any termination or the completion or expiration of this letter or Greenhill's engagement and (iv) whether or not Greenhill shall, or shall not be called upon to, render any formal or informal advice in the course of such engagement. Very truly yours, GREENHILL & CO., LLC By: /s/ Peter C. Krause ------------------- Peter C. Krause Managing Director Accepted and agreed to as of the date set forth above: CASUARINA CAYMAN HOLDINGS LTD. By: /s/ William J. Yung ------------------- Name: William J. Yung Title: President -----END PRIVACY-ENHANCED MESSAGE-----