Exhibit 10.11
XXXXXX XXXXXXXX
Xx. Xxxxxxx X. Xxxxxx Xxxxxx Xxxxxxxx, LLP
President and Chief Executive Officer Suite 1800
PlanVista Corporation 000 Xxxxxxxxx Xxxxxx XX
0000 Xxxx Xxxxxxxx Xxxx Xxxxxxx XX 00000
Xxxxx, XX 00000 Tel 000 000 0000
June 28, 2001
Dear Xx. Xxxxxx:
This letter agreement, including any Annexes (collectively, the "Agreement")
will confirm that PlanVista Corporation (the "Company" or "PlanVista") has
retained Xxxxxx Xxxxxxxx LLP ("Xxxxxx Xxxxxxxx") to provide the services
described in more detail below.
As we have discussed, due to a variety of operating, competitive and other
reasons, the Company has generated lower than planned profitability and cash
flow. As a result, the Company has experienced liquidity problems. The Company
has asked Xxxxxx Xxxxxxxx to perform general corporate restructuring services.
Xxxxxx Xxxxxxxx Services and Responsibilities
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Scope of Services. Xxxxxx Xxxxxxxx will perform the following services (the
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"Services") for the Company.
1. Analyze and validate the assumptions and the other data underlying the Plan
Vista short-term weekly cash flow projection (the "Cash Projection").
Revise the Cash Projection as required based on the findings of the
analysis.
2. Perform weekly reporting of actual cash receipts and disbursements as
compared to the Cash Projection. Update and revise the Cash Projections
based on actual cash receipts and disbursements results and any other
available data or facts.
3. Assist Plan Vista with controlling expenditures and their cash disbursements
and general cash management functions to preserve and maintain the liquidity
position of the Company.
4. Assist Plan Vista and its efforts to maximize cash collections and
implementation of action plans to improve the billing and collection
function.
5. Analyze the Plan Vista cost structure and organizational structure to
identify cost containment and improvement opportunities for implementation.
6. Provide financial advisory consulting services related to development of
restructuring alternatives for Plan Vista.
7. Assist Plan Vista in negotiation and with its creditors and other
stakeholders to effect a restructuring plan for Plan Vista.
8. Other services as requested.
PlanVista Corporation
Page 2
June 28, 2001
Deliverables. Xxxxxx Xxxxxxxx will prepare materials or a report to the
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management discussing our findings.
Materials or reports prepared in connection with our engagement hereunder (the
"Deliverables") may contain factual data, the interpretation of which may
change over the project term as more information or better understanding becomes
available. The Company understands and acknowledges that Xxxxxx Xxxxxxxx shall
not have an obligation to update the Deliverables as part of its Services
hereunder in the event of such change. Any materials prepared by Xxxxxx Xxxxxxxx
are solely for the Company's internal business purposes and use as it relates to
this matter and may not be reproduced, summarized, referred to, disclosed
publicly or given to any other person, except the PlanVista Bank Group, without
our prior written consent, which shall not be unreasonably withheld.
Limitations on Services. Xxxxxx Xxxxxxxx'x Services are limited to those
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specifically noted in this Agreement and do not include accounting, tax-related
assistance, or advisory services except as specifically described herein. Xxxxxx
Xxxxxxxx will not be expressing any professional opinions on financial
statements or performing attest procedures with respect to other information in
conjunction with this engagement. Our Services are not designed, nor should they
be relied upon, to disclose weaknesses in internal controls, financial statement
errors, irregularities, or illegal acts. The accuracy and completeness of such
information submitted by the Company or any intermediary to us for analysis, on
which we rely and which will form the basis of our conclusions, are the
responsibility of the Company.
Xxxxxx Xxxxxxxx'x Services hereunder do not include, and the Company has not
engaged Xxxxxx Xxxxxxxx, to prepare, audit or otherwise attest in any way
(including without limitation, the accuracy, achievability, reliability,
relevance, usefulness or other appropriateness) to the Company's financial
projections. The Company acknowledges and agree that it shall remain at all
times solely responsible for its financial projections (including preparation
thereof), developing underlying assumptions, and providing any disclosure
related thereto. To the extent that, during the performance of Services
hereunder, Xxxxxx Xxxxxxxx is required to consider the Company's financial
projections, the Company acknowledges that our procedures with respect to such
projections do not constitute an examination in accordance with procedures
established by the American Institute of Certified Public Accountants and do not
and are not intended to provide any assurance on any aspect of such projections,
including without limitation, the reasonableness of the assumptions underlying
such projections, nor do they provide assurance that Xxxxxx Xxxxxxxx might not
become aware of significant matters affecting the reasonableness of the
projections that might be disclosed by more extensive procedures. There will
usually be differences between the projected and actual results, and those
differences may be material. The Company understands and agrees that Xxxxxx
Xxxxxxxx shall have no responsibility or liability relating to any such
differences.
PlanVista Corporation
Page 3
June 28, 2001
Company Responsibilities and Project Assumptions.
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1. Company Responsibilities.
In connection with Xxxxxx Xxxxxxxx'x provision of the Services, the
Company shall perform those tasks and assume those responsibilities
specified herein and as stated elsewhere in this Agreement ("Company
Responsibilities"). The Company understands that Xxxxxx Xxxxxxxx'x
performance is dependent on the Company's timely and effective
satisfaction of the Company Responsibilities hereunder and timely
decisions and approvals by the Company. The Company shall promptly provide
Xxxxxx Xxxxxxxx with all decisions, approvals, and acceptances as
requested by Xxxxxx Xxxxxxxx, and, further, Xxxxxx Xxxxxxxx shall be
entitled to rely on all such decisions and approvals of the Company in
connection with the Services. Further, the Company understands that Xxxxxx
Xxxxxxxx is relying upon the information that the Company provides and,
consequently, the Company warrants that all information (whether written
or oral) and materials given or made available by it to Xxxxxx Xxxxxxxx in
order for Xxxxxx Xxxxxxxx to provide Services hereunder will be current,
complete and accurate, shall not omit to state any material fact and shall
be updated on a prompt and continuous basis. Our ability to perform
acceptably under this Agreement is expressly conditioned and contingent
upon the foregoing warranty.
In performing Services hereunder, Xxxxxx Xxxxxxxx will not be assuming the
role of management; our role will be advisory only. It is understood that
any decision to select or implement our recommendations or to act on our
advise will be solely within the Company's discretion and at the direction
of the Company's management.
2. Project Assumptions.
The Services and fees for this engagement are based upon the following
assumptions, representations or information supplied by the Company
("Assumptions"). Our work plan assumes that the Company will respond
promptly to requests for information and that information and data
provided will be in suitable format, detail and accuracy for use in our
analysis. In addition, the Company will make available, in a timely
manner, appropriate personnel to discuss the Company's strategy, business,
operations, accounting and management systems, business plans and
projections as is reasonably requested xx Xxxxxx Xxxxxxxx.
PlanVista Corporation
Page 4
June 28, 2001
We anticipate that our role in working with you on this important project
will be highly interactive. We expect to work jointly in determining the
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project scope on an ongoing basis which may result in refocusing our
efforts into other areas than those currently specified in this letter.
Xxxxxx Xxxxxxxx'x delivery of the Services and the fees charged are
dependent on (i) the Company's timely and effective completion of the
Company Responsibilities, (ii) the accuracy and completeness of the
Assumptions, and (iii) timely decisions and approvals by the Company's
management.
Fees and Expenses
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a) Retainer: The Company shall pay the amount of $40,000 ("Retainer") to
Xxxxxx Xxxxxxxx, in cash, upon execution of this Agreement. The Retainer
is not intended to be an estimate of the total fees and expenses to be
paid to Xxxxxx Xxxxxxxx during the course of the engagement. Xxxxxx,
Xxxxxx Xxxxxxxx will hold the Retainer until the conclusion of this
engagement at which time the final billing will be applied against it
with any excess being returned to the Company.
b) Compensation for Services: As compensation for providing the Services
hereunder, the Company shall pay Xxxxxx Xxxxxxxx as follows: non-
refundable professional fees based on an hourly rate schedule and the
level of staff required to complete our Services. The scope of our
Services, as well as the complexity and length of this engagement, can
vary greatly due to actions in this matter which cannot be anticipated.
We will limit our work to those tasks required and approved by you. At
the end of each week, Xxxxxx Xxxxxxxx shall invoice the Company for
professional services performed during such week and the Company shall
pay the applicable fees for such professional services by Company check
or via wire transfer immediately after the presentment of billing to
the Company. Our current hourly rate schedule is as follows:
Partners $400-475
Directors $325-395
Managers $250-320
Analysts $120-240
From time to time in the normal course of business, we may
adjust our hourly rates. Our services will be charged at the
rates that are in effect at the time the services are rendered.
Plan Vista Corporation
Page 5
June 28, 2001
c) Out-of-Pocket Expenses. The Company agrees to reimburse Xxxxxx
Xxxxxxxx promptly upon request for its out-of-pocket expenses
incurred in connection with this Agreement, as incurred, including
the fees and expenses of legal counsel.
Term and Termination. The term of this Agreement will expire upon the completion
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of the Services. Each of the Company and Xxxxxx Xxxxxxxx shall have the right to
terminate their obligations under this Agreement immediately upon written notice
to the other party hereto, provided, however, that the Company shall remain
obligated to pay Xxxxxx Xxxxxxxx (i) all Compensation for Services and (ii)
Out-of-Pocket expenses hereunder, incurred through the effective date of
termination. In addition, the Indemnification and Statement of Limitation
provisions contained in Annex A hereto shall indefinitely survive any such
termination or expiration of this Agreement.
Business Relationships and Conflicts. Xxxxxx Xxxxxxxx has performed an internal
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search for any business relationship that would create a potential conflict of
interest based on the information the Company has provided us and is not aware
of any such business relationship in connection with our retention hereunder.
Notwithstanding the foregoing, please be advised that the corporate
restructuring service line of Xxxxxx Xxxxxxxx is part of Xxxxxxxx Worldwide SC
("Xxxxxxxx Worldwide"). It is therefore possible that partners, officers,
employees or agents within the Xxxxxxxx Worldwide organization may have
interests, relationships and/or duties which conflict with the Company's
interests and would otherwise conflict with duties owed by Xxxxxx Xxxxxxxx to
the Company in relation to our appointment under this Agreement. The Company
agrees that the corporate restructuring service line of Xxxxxx Xxxxxxxx may act
for the Company despite any such potential conflicts, and that any profit or
remuneration from such business relationship may retained by the Xxxxxxxx
Worldwide organization.
Should any potential conflict pertaining to Xxxxxx Xxxxxxxx'x engagement
hereunder come to the attention of any party hereto, such party will advise the
other party immediately. Nothing contained herein should be construed to be a
waiver of any potential conflict pertaining to Xxxxxx Xxxxxxxx that may come to
the attention of any party hereto. Xxxxxx Xxxxxxxx reserves the right to
terminate this engagement at any time if a conflict of interest arises or
becomes known to us that, in our judgement, would impair our ability to perform
objectively.
Confidentiality. With respect to this Agreement and any information supplied in
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connection with this Agreement and designated by the disclosing party as
confidential the recipient agrees to: (i) protect the confidential information
in a reasonable and appropriate manner and in accordance with any applicable
professional standards; (ii) use confidential information only to perform its
obligations under this Agreement, and (iii) reproduce confidential information
only as required to perform its obligations under this Agreement. This paragraph
shall not apply to information which is (a) publicly known, (b) already known to
recipient, (c) disclosed by
Plan Vista Corporation
Page 6
June 28, 2001
the disclosing party to a third party without restriction; or (d) independently
developed. Confidential information may disclosed pursuant to a subpoena or
other valid legal or administrative process only after the recipient of such
process has provided the disclosing party notice of and an opportunity to quash,
modify or otherwise contest such process (and cooperation with such efforts, at
the disclosing party expense), and only insofar as is necessary to comply with
such process. Subject to the foregoing, Xxxxxx Xxxxxxxx may disclose the
Company's confidential information to Xxxxxx Xxxxxxxx'x subcontractors and
affiliates on a "need to know" basis. Xxxxxx Xxxxxxxx retains the right in any
event to use the ideas, concepts, techniques, industry data and know-how used or
developed in the course of this Agreement. Except as instructed otherwise in
writing, each party may assume that the other approves of properly addressed
fax, e-mail (including e-mail exchanged via Internet media) and voicemail
communication of both sensitive and non-sensitive documents and other
communications concerning this Agreement, as well as other means of
communication used or accepted by the other.
Bankruptcy Court. In the event that Company files for relief under Chapter 11 of
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the Bankruptcy Code, (a) the Company shall file an appropriate motion prepared
in consultation with Xxxxxx Xxxxxxxx as to matters relating to our retention by
the Company and provision of Services as contemplated hereunder, on the first
day of the bankruptcy case, which seeks the approval of the immediate assumption
of this Agreement by the Company, and (b) this Agreement shall be subject to the
entry of a final order of the Court approving the assumption of this Agreement,
and (c) Xxxxxx Xxxxxxxx shall not be required to perform any additional services
under this Agreement until the entry of the Court's order approving the
assumption of the Agreement or, if this Agreement is deemed not to be an
executory contract, an order authorizing the employment of Xxxxxx Xxxxxxxx,
under the terms of this Agreement.
In any event, the order approving the Company's assumption of this Agreement or,
if this Agreement is deemed not to be an executory contract, the order
authorizing the engagement of Xxxxxx Xxxxxxxx must be acceptable to Xxxxxx
Xxxxxxxx in its sole discretion.
If the Court's order is not obtained (or is later terminated or set aside for
any reason), either party may terminate this Agreement, and the Company shall
reimburse Xxxxxx Xxxxxxxx for all professional fees and out-of-pocket expenses
reasonably incurred prior to such date of termination, unless prohibited from
doing so by the Bankruptcy Court. Upon such termination, the Company shall have
no further obligations under this Agreement except as relates to the
Indemnification and Statement of Limitation provisions contained in Annex A
hereto which shall indefinitely survive any such termination.
No Brokers. The Company acknowledges that there are no brokers, representatives
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or other persons which have an interest in compensation due to Xxxxxx Xxxxxxxx
relating to the Services pursuant to this Agreement.
Plan Vista Corporation
Page 7
June 28, 2001
Additional Engagements. It is understood and agreed that, in connection with
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Xxxxxx Xxxxxxxx'x engagement by the Company under this Agreement, the Company
may desire to engage Xxxxxx Xxxxxxxx in one or more additional capacities, and
that the terms of any such additional engagement may be embodied in one or more
separate written letters or agreements acceptable to the Company and Xxxxxx
Xxxxxxxx.
Complete Agreement; Amendments; Governing law; Sole Benefit. This Agreement
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(including all Annexes) (a) constitutes the entire agreement of the parties with
respect to the subject matter hereof and supersedes any other prior
communications, understandings and agreements (both written and oral) between
the parties or any of them with respect to the subject matter hereof and (b) may
be modified, amended or supplemented only by written agreement between the
parties hereto.
This Agreement and all controversies arising from or related to performance
hereunder shall be governed by, and construed in accordance with, the laws of
the State of Illinois, without giving effect to such state's conflict of laws
principles. The parties hereby submit to the jurisdiction of and venue in the
federal and state courts located in the city of Chicago and waive any right to
trial by jury in connection with any dispute related to this Agreement or any
matter contemplated hereby.
This Agreement has been and is made solely for the benefit of the Company,
Xxxxxx Xxxxxxxx and the Indemnified Parties, and their respective successors and
assigns, and no other person shall acquire or have any right under or by virtue
of this Agreement.
Please confirm the foregoing is in accordance with your understanding by signing
and returning a copy of this Agreement, whereupon it shall become binding and
enforceable in accordance with its terms.
Very truly yours,
XXXXXX XXXXXXXX LLP
By /s/ Xxxxxxx X. Xxxxx III
Xxxxxxx X. Xxxxx XXX
PlanVista Corporation
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June 28, 2001
Accepted and Agreed to this 6th day of July 2001
PlanVista Corporation
By /s/ Xxxxxxx X. Xxxxxx
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Xx. Xxxxxxx X. Xxxxxx
President and Chief Executive Officer
This Agreement includes the following attachments, all made a part of the
Agreement:
Annex A - Indemnification and Statement of Limitations
ANNEX A
Page 1 of 2
INDEMNIFICATION and STATEMENT OF LIMITATIONS
As Xxxxxx Xxxxxxxx is performing the Services for the benefit of the Company,
Company will, upon receipt of written notice, indemnify Xxxxxx Xxxxxxxx and its
affiliates (including their past, present or future partners, principals and
personnel) (collectively called the "Indemnified Persons") against all costs,
fees, expenses, damages and liabilities (including defense costs) associated
with any third party claim relating to or arising as a result of the Services,
Company's use or disclosure of the Deliverables, or this Agreement, except where
a final adjudication determines that the indemnified persons have acted in bad
faith or in a fraudulent manner. This provision is intended to apply regardless
of the nature of any claim (including contract, statute, any form of negligence,
whether of Company, Xxxxxx Xxxxxxxx, or others, tort, strict liability or
otherwise), except as provided herein or to the extent finally determined to be
prohibited by applicable law.
Neither the Company nor the Principals shall, without Xxxxxx Xxxxxxxx'x prior
written consent, settle, compromise or consent to the entry of any judgement in
any pending or threatened claim, action or proceeding in respect of which
indemnification could be sought hereunder (whether or not Xxxxxx Xxxxxxxx or any
other Indemnified Person is an actual or potential party to such claim, action
or proceeding), unless such settlement compromise or consent includes an
unconditional release of each Indemnified Person from all liability arising out
of such claim, action or proceeding.
In the event that any Xxxxxx Xxxxxxxx personnel (including past, present or
future partners and other personnel) is requested or required to appear as a
witness in connection with any action, claim or proceeding related to or arising
out of the Services performed hereunder, the Company shall reimbursed Xxxxxx
Xxxxxxxx for the fees and disbursements of its legal counsel incurred by it in
connection with such partners and other personnel appearing and preparing to
appear as a witness.
Except as provided herein, Xxxxxx Xxxxxxxx'x total aggregate liability relating
to this Agreement shall in no event exceed the fees Xxxxxx Xxxxxxxx receives
hereunder for the portion of the work giving rise to liability. In no event
shall Xxxxxx Xxxxxxxx have any responsibility for any special, consequential,
incidental or exemplary damages or loss (nor any lost profits, savings or
business opportunity). This paragraph shall apply regardless of the nature of
any claim(s) (including contract, statute, any form of negligence, tort, strict
liability or otherwise), regardless of any failure of the essential purpose of
any remedy and whether or not Xxxxxx Xxxxxxxx was advised of the possibility of
the damage or loss asserted, but shall not apply to the extent finally
determined to be prohibited by applicable law.
ANNEX A
Page 2 of 2
INDEMNIFICATION and STATEMENT OF LIMITATIONS
The Indemnification and Limitation of Liability provisions contained in this
Annex A shall survive the termination or expiration of this Agreement for any
reason.
Confirmed and Agreed to this
_____ day of ______, 2001
PlanVista Corporation
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title:
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