Exhibit 10.27
CONFIDENTIAL
March 15, 2000
Mr. ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
President & Chief Executive Officer
▇▇▇▇ ▇▇▇▇▇ ▇▇, P.O. Box 1347
Wall, NJ 07719
Dear ▇▇. ▇▇▇▇▇:
This will confirm that the agreement between Prudential Securities
Incorporated ("Prudential Securities") and ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. (the
"Company") dated November 22, 1999 is hereby terminated, and will further
confirm that the agreement (the "Agreement") between Prudential Securities
Incorporated and ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. is as follows:
1. SCOPE OF ENGAGEMENT
The Company hereby engages Prudential Securities as its exclusive agent
in the private placement of securities of the Company and/or any
affiliate or subsidiary thereof in one or more related transactions (a
"Transaction") to one or more financial investors, strategic corporate
investors and/or others (collectively, the "Investors") in the form of
common stock, convertible preferred stock, convertible debt securities,
equity-linked securities, equity or equity-linked joint ventures or
other equity or equity-linked arrangements including without
limitation, debt securities with warrants (collectively, the
"Securities"), except any debt securities with warrants that the
Company places with MCG Finance Corporation and/or its affiliates
2. OFFERING PROCESS
Prudential Securities hereby accepts the engagement and in that
connection agrees to:
(a) prepare, in consultation with the Company, a Private Placement
Memorandum (the "Memorandum") describing the Company and the
Securities; this Memorandum will not be made available to
potential Investors until such Memorandum and its use shall be
approved by the Company;
(b) prepare and review with the Company a mutually acceptable list of
Investors to be contacted by Prudential Securities in connection
with the Transaction (the "Investor Contact List"); these
Investors will only be contacted after the Company has approved
the Investor Contact List;
(c) use its best efforts to privately place the Securities;
(d) if appropriate, assist the Company with the preparation of any
other communications to be used in placing the Securities,
whether in the form of letter, circular, notice or otherwise; and
(e) assist with the negotiation of the final terms and conditions for
the sale of the Securities to the Investors.
3. COMPANY'S RESPONSIBILITIES, REPRESENTATIONS AND WARRANTIES
In connection with Prudential Securities' engagement, the Company will
furnish Prudential Securities with all information concerning the
Company that Prudential Securities reasonably requests and will provide
Prudential Securities with access to the Company's officers, directors,
accountants, counsel and other advisors. The Company represents and
warrants to Prudential Securities that: (a) all such information,
including the Memorandum and any communications prepared pursuant to
paragraph 2(d) above, is and will be true and accurate in all material
respects and does not and 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, in light of the circumstances under which
they were made, not misleading; and (b) any projected financial
information or other forward-looking information which the Company
provides to Prudential Securities will be made by the Company in good
faith, based on management's best estimates then available and based on
facts and assumptions which the Company believes to be reasonable. The
Company acknowledges and agrees that Prudential Securities will be
using and relying upon such information supplied by the Company and its
officers, agents and others and any other publicly available
information concerning the Company without any independent
investigation or verification thereof or independent appraisal by
Prudential Securities of the Company or its business or assets nor will
Prudential Securities be providing a solvency opinion with respect to
the Company.
4. COMPENSATION
As compensation for the services rendered by Prudential Securities
hereunder, the Company shall pay Prudential Securities as follows:
(a) At any closing of a Transaction, subject to a minimum fee of
$500,000, a cash fee equal to 7.0% of the Aggregate Consideration
(as defined below) paid for the Securities by Investors;
The fees set forth in paragraph 4 (a) above shall be payable with
respect to any transaction involving the sale of Securities that occurs
either (a) during the term of Prudential Securities' engagement
hereunder regardless of whether the Investor was identified by
Prudential Securities or (b) at any time during a period of 12 months
following the effective date of termination of Prudential Securities'
engagement hereunder without cause if the transaction includes a sale
of Securities to an Investor who is named on the Investor Contact List
or any parent, subsidiary or other affiliate thereof.
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FOLLOW-ON TRANSACTION COMPENSATION
If a Transaction has been consummated and one or more additional
Transactions ("Additional Transactions") are consummated by the Company
(or any parent, subsidiary or other affiliate thereof) within 12 months
from the closing date of the initial Transaction with any party (or any
parent, subsidiary or other affiliate thereof) whose name is on the
Investor Contact List (including Investors in such initial
Transaction), Prudential Securities shall be entitled to receive (i) a
fee equal to 3.25% of the Aggregate Consideration of any such
Additional Transactions at the closings of any such Additional
Transactions.
DEFINITION OF AGGREGATE CONSIDERATION
The "Aggregate Consideration" for purposes of calculating Prudential
Securities' fee shall be deemed to include:
(a) the total consideration for the Securities sold which is
received, directly or indirectly, by the Company and/or any
selling shareholders, including the assumption or
extinguishment of indebtedness, the issuance of guarantees
and contingent payment obligations;
(b) consideration, if any, received or receivable upon exercise
of options and/or any other similar instruments issued at
the closing of a Transaction (collectively, the "Options");
and
(c) any amounts paid into escrow and amounts payable in the
future whether or not subject to any contingency.
To the extent that:
(i) the consideration received is to include in whole or in part
consideration which is contingent in amount or payable in
the future (e.g., installment payments), the portion of
Prudential Securities' fee relating thereto shall be paid
when such consideration is received by the Company;
(ii) future payments relating to the exercise of the Options
which are not currently ascertainable or payable, the
portion of Prudential Securities' fee relating thereto shall
be calculated and paid upon exercise of the Options; and
(iii) the consideration received is, in whole or in part, in the
form of securities or other noncash consideration, including
without limitation contractual rights such as joint venture
interests, the value of such consideration, for purposes of
calculating Prudential Securities' fee, shall be the fair
market value thereof, as the parties hereto shall mutually
agree, on the day prior to the closing date; provided,
however, that if such consideration consists of securities
with an existing public trading market, the value thereof
shall be determined by the average of the last
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sales price for such securities on the five trading days
ending five days prior to such consummation.
5. FUTURE INVESTMENT BANKING ROLES
During the term of this Agreement or at any time within 12 months
following the closing of a Transaction, if the Company or any of its
affiliates proposes (i) to dispose of an interest in any assets or
businesses of the Company to which paragraph 6 herein does not apply,
(ii) to acquire or purchase any interest or investment in any other
company or business, or (iii) to place privately or offer publicly and
underwrite any debt or equity securities other than in a Transaction or
an Additional Transaction for which fees are payable to Prudential
Securities under, and in accordance with, paragraph 4 above (each of
such transactions referred to in clauses (i), (ii) or (iii) hereof
being hereinafter referred to as a "Financing Transaction"), the
Company shall consider using, but shall not be obligated to use,
Prudential Securities and its affiliates to act as its exclusive
financial advisor, lead manager or sole placement agent, as the case
may be, with respect to such Financing Transaction. Any decision by the
Company to engage Prudential Securities or its affiliates to act as
exclusive financial advisor, lead manager or sole placement agent, as
the case may be, with respect to such Financing Transaction will be
contained in a separate agreement or amendment hereto, which would
include, among other things, the terms of any such financing,
provisions for customary fees for transactions of similar size and
nature, indemnification of Prudential Securities, conditions precedent,
including due diligence, market conditions and approval by the
requisite committees of Prudential Securities, and customary
representations and warranties.
6. PSI ROLE IN THE EVENT OF SALE OF THE COMPANY
In the event that, directly or indirectly, control of, or a material
interest in, the Company is proposed to be sold, leased or otherwise
transferred to any party including, without limitation, a sale or
exchange of capital stock or assets, a merger or consolidation, a
tender or exchange offer, a leveraged buy-out, a restructuring or a
recapitalization (a "Sale Transaction") and a definitive agreement for
such sale transaction is entered into or a term sheet or a letter of
intent for such sale transaction is signed prior to the Closing of a
private placement Transaction and prior to June 1, 2000, provided the
Company is still in active pursuit of a Transaction with Prudential
Securities, the Company shall either: (i) agree to use Prudential
Securities as the Company's exclusive financial advisor for such Sale
Transaction, and the Company shall pay Prudential Securities a
customary fee for a transaction of this size and type at the closing of
such Sale Transaction, equal to 2.0% of the aggregate value of the Sale
Transaction, which is equivalent to the enterprise value of the
Company; or (ii) pay to Prudential Securities a fee of $500,000 if the
Company decides to use another advisor and such Sale Transaction is
consummated, such fee to be paid at the closing of such Sale
Transaction. For purposes of this paragraph 5, "control of the Company"
shall mean 50% or more of the Company's voting securities, and
"material interest in the Company" shall mean any assets or businesses
which, individually or in the aggregate, represent a percentage in
excess of 25% of the assets or net worth of the Company and its
affiliates, whichever is less, taken as a whole. Any decision by the
Company to appoint Prudential Securities as exclusive financial advisor
in connection with such Sale Transaction shall be contained in a
separate agreement or amendment hereto providing for, among other
matters, indemnification of Prudential Securities, conditions precedent
regarding due diligence, current market conditions and other customary
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matters, and approval by the requisite committees of Prudential
Securities, and customary representations and warranties.
7. BREAK-UP FEE
If (i) Prudential Securities' engagement is terminated other than for
cause prior to June 1, 2000; and (ii) within a period of six months
following such termination, the Company pursues any Transaction
involving an investor other than an Investor who is named on the
Investor Contact List (hereinafter referred to as an "Alternative
Transaction"), and the Company consummates an Alternative Transaction
without using Prudential Securities, Prudential Securities shall be
entitled to a breakup fee of $250,000 (the "Breakup Fee") payable in
cash upon the closing of such Alternative Transaction.
8. REIMBURSABLE EXPENSES
The Company shall reimburse Prudential Securities for its reasonable
out-of-pocket and incidental expenses incurred in connection with any
Transaction (whether or not consummated), including the reasonable fees
and expenses of its legal counsel and those of any advisor retained by
Prudential Securities (such advisor will be retained upon the consent
of the Company, which consent shall not be unreasonably withheld or
delayed). Prudential Securities shall bill the Company monthly for
expenses, and the Company shall reimburse Prudential Securities for
such expenses within 30 days of receiving a bill.
9. INDEMNIFICATION
Because Prudential Securities will be acting for the benefit of the
Company in connection with this engagement, the Company agrees to
indemnify Prudential Securities and certain other persons as set forth
in the separate indemnification agreement attached hereto.
10. EXCLUSIVE ASSIGNMENT
Without the consent of Prudential Securities, the Company agrees that
during the term of Prudential Securities' engagement hereunder, it will
not, and will not permit its representatives to, contact or solicit
institutions, corporations or other entities other than the Investors
on the Investor Contact List as potential purchasers of the Securities
in a Transaction. Furthermore, the Company agrees that during the term
of Prudential Securities' engagement hereunder, all inquiries, whether
direct or indirect, from prospective Investors for the purchase of
Securities in a Transaction will be referred to Prudential Securities
and will be deemed to be added to the Investor Contact List.
11. ADVERTISEMENTS
Upon completion of a Transaction, Prudential Securities may place
advertisements in financial and other publications and media at its own
expense describing its services to the Company hereunder.
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12. SURVIVAL OF TERMS OF AGREEMENT
Subject to the provisions of paragraph 3 (excluding the first sentence
thereof) through 9, and 12 through 19 which shall survive any
termination of this Agreement, either party may terminate Prudential
Securities' engagement hereunder at any time, with or without cause, by
giving the other party at least 10 days' prior written notice. Upon
termination of Prudential Securities engagement hereunder by any party
hereto, Prudential Securities may provide the Company with a final
Investor Contact List.
13. DISCLOSURE TO THIRD PARTIES
Without the prior written consent of Prudential Securities, the Company
will not publicly refer to Prudential Securities or publicly disclose
or otherwise make available to third parties other than to Investors
(except the Company's counsel or other advisers, provided the Company
informs them of this provision) and other than in the Memorandum, any
advice, either oral or written, which Prudential Securities provides to
the Company in connection with this engagement.
14. SUCCESSORS AND ASSIGNS
The benefits of this Agreement, together with the separate
indemnification agreement, shall inure to the respective successors and
permitted assigns of the parties hereto and of the indemnified parties
under such indemnification agreement and their respective successors,
permitted assigns and representatives, and the obligations and
liabilities assumed in this Agreement by the parties hereto shall be
binding upon their respective successors and assigns. This Agreement
and the related indemnification agreement may not be assigned without
the prior written consent of the non-assigning party.
OTHER TERMS AND CONDITIONS
15. The Company further represents and warrants to Prudential Securities
that:
(a) the Company has taken no action that would give any brokers,
representatives, finders or other persons an interest in the
compensation due to Prudential Securities in connection with any
Transaction contemplated herein; and
(b) this Agreement does not violate or constitute a breach or default
under any contract, agreement, arrangement or understanding,
whether written or oral, to which the Company or any of its
subsidiaries is a party or by which its or their assets are
bound.
16. This Agreement may not be amended or modified except in a writing
signed by the party against whom enforcement is sought and shall be
governed by and construed in accordance with the laws of the State of
New York, without regard to its principles of conflicts of laws.
17. EACH OF PRUDENTIAL SECURITIES AND THE COMPANY (ON ITS OWN BEHALF AND,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS AFFILIATES
AND STOCKHOLDERS) WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
CLAIM, SUIT, PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT,
TORT OR OTHERWISE) RELATING TO OR ARISING OUT OF THE
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ENGAGEMENT OF PRUDENTIAL SECURITIES PURSUANT TO, OR THE PERFORMANCE BY
PRUDENTIAL SECURITIES OF THE SERVICES CONTEMPLATED BY, THIS AGREEMENT.
18. The purpose of this Agreement is to set forth the services that
Prudential Securities will provide to the Company, as an independent
contractor, either as specifically provided herein or as subsequently
requested in writing by the Company and agreed to by Prudential
Securities. The parties hereto do not intend to create any special,
fiduciary or agency relationship between them. In addition, the
exclusivity of the relationship between Prudential Securities and the
Company refers to the fact that the services to be provided by
Prudential Securities hereunder are to be provided solely by
Prudential Securities and that the fees to be paid by the Company
hereunder are solely for the benefit of Prudential Securities. There
may be other services which are required to be provided to the Company
in connection with any transaction contemplated by this Agreement and
which will be provided by others (e.g., independent auditors or
appraisers). Furthermore, the parties hereto understand that
Prudential Securities is not required to purchase any Securities. This
Agreement is solely for the benefit of Prudential Securities and the
Company and is not intended to create rights or obligations of either
party for the benefit of third parties, including without limitation
the creditors of the Company.
19. The Company acknowledges that Prudential Securities is a full service
securities firm and in the ordinary course of its business, for its own
account or the accounts of its customers, holds long or short positions
in securities or derivative securities (including options), which may
include securities or derivative securities relating to the Company or
other entities which may be involved in the engagement contemplated
hereby. Nothing in this Agreement shall be deemed to prohibit
Prudential Securities from providing any services permitted by
applicable law to any third party or from engaging in any lawfully
permitted activity on its own behalf.
Prudential Securities is delighted to accept this engagement and looks forward
to working with the Company on this assignment. Please confirm Prudential
Securities' engagement as set forth herein by signing the enclosed duplicate of
this letter and the separate indemnification agreement and returning them
whereupon, following approval by the requisite committees of Prudential
Securities, this letter and the separate indemnification agreement shall
constitute binding agreements as of the date first above written.
Very truly yours,
PRUDENTIAL SECURITIES INCORPORATED
By: /s/ ▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Managing Director Managing Director
Accepted and agreed as of the
date first above written:
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▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
By: /S/ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
President & CEO
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[INDEMNIFICATION AGREEMENT]
March 15, 2000
PRUDENTIAL SECURITIES INCORPORATED
One New York Plaza
New York, N.Y. 10292
Ladies and Gentlemen:
In connection with the engagement agreement, dated the date hereof,
between Prudential Securities Incorporated ("Prudential Securities") and
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. (the "Company"), the Company agrees to indemnify and
hold harmless Prudential Securities and its affiliates, their respective
directors, officers, controlling persons (within the meaning of Section 15 of
the Securities Act of 1933 or Section 20(a) of the Securities Exchange Act of
1934), if any, agents and employees of Prudential Securities or any of
Prudential Securities' affiliates (collectively, "Indemnified Persons" and
individually, an "Indemnified Person") from and against any and all actions,
claims, suits, proceedings, liabilities, losses, damages and expenses
incurred, joint or several (collectively, "Claims"), by any Indemnified
Person (including fees and disbursements of Prudential Securities' and an
Indemnified Person's counsel) which are related to or arise from Prudential
Securities' engagement by the Company, including Claims that relate to or
arise from any actions taken or omitted to be taken (including any untrue or
alleged untrue statements made or any statements omitted or alleged to be
omitted) by the Company or which relate to or arise from securities laws or
any other law or legal theory, and will reimburse Prudential Securities and
any other Indemnified Person for all costs and expenses (including fees and
disbursements of Prudential Securities' or an Indemnified Person's counsel),
as they are incurred, in connection with investigating, preparing for,
providing depositions for, testifying in or defending any such action or
claim, formal or informal, investigation, inquiry or other proceeding,
whether or not in connection with pending or threatened litigation, whether
or not Prudential Securities or any Indemnified Person is named as a party
thereto and whether or not any liability results therefrom related to or
arising from the foregoing (collectively, "Costs"). The Company will not,
however, be responsible for any Claims which are found in a final judgment by
a court of competent jurisdiction (not subject to further appeal) to have
resulted directly and primarily from an Indemnified Person's gross negligence
or willful misconduct.
The Company agrees that neither Prudential Securities nor any other
Indemnified Person shall have any liability to the Company for or in
connection with such engagement except liability for Claims which are found
in a final judgment by a court of competent jurisdiction (not subject to
further appeal) to have resulted directly and primarily from an Indemnified
Person's gross negligence or willful misconduct. The Company also agrees that
the Company will not, without the prior written consent of Prudential
Securities, settle or compromise or consent to the entry of any judgment in
any pending or threatened Claim in respect of which indemnification
may be sought hereunder (whether or not Prudential Securities or any
Indemnified Person is an actual or potential party to such Claim). Such prior
written consent of Prudential Securities shall be required only with respect
to Prudential Securities determining that such settlement, compromise or
consent complies with the terms of the following sentence and does not impose
any material obligation on Prudential Securities or any other Indemnified
Person or contain any admission of culpability on the part of Prudential
Securities or any Indemnified Person. Such settlement, compromise or consent
shall include an unconditional release of Prudential Securities and each
other Indemnified Person from all liability arising out of such Claim, and
the Company shall furnish Prudential Securities with a copy of such
settlement reasonably in advance of entering into such settlement.
In order to provide for just and equitable contribution, if a demand
for indemnification or reimbursement for Claims or Costs is made pursuant to
these provisions but is not available for any reason, then the Company, on
the one hand, and Prudential Securities, on the other hand, shall contribute
to such Claims or Costs for which such indemnification or reimbursement is
held unavailable in such proportion as is appropriate to reflect the relative
benefits to the Company, on the one hand, and Prudential Securities on the
other hand, in connection with the transaction or transactions from which the
Claims or Costs in question arose. The relative benefits received by the
Company, on the one hand, and by Prudential Securities, on the other hand,
shall be deemed to be in the same proportion as the value (before deducting
expenses) of the consideration paid by or received by the Company or its
stockholders or comparable equity owners, as the case may be, in connection
with the transaction or transactions from which the Claims or Costs in
question arose bears to the total fees actually received by Prudential
Securities in connection therewith. If the allocation provided by the
foregoing sentence is not permitted by applicable law, then such allocation
shall be based not only on such relative benefits determined as aforesaid but
also on the relative fault of the Company, on the one hand, and Prudential
Securities, on the other, as well as any other relevant equitable
considerations. The relative fault of the parties shall be determined by
reference to, among other things, the parties' relative intents, knowledge,
access to information and, if applicable, whether any untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company or by
Prudential Securities, and any other equitable considerations appropriate in
the circumstances. Any such contribution shall be subject to the limitation
that in any event Prudential Securities' aggregate contribution to all Claims
or Costs for which contribution is available hereunder shall not exceed the
amount of fees actually received by Prudential Securities pursuant to the
particular engagement relating to the transaction or transactions from which
the Claims or Costs in question arose.
The foregoing rights to indemnity, reimbursement and contribution
shall be in addition to any rights that Prudential Securities and/or any
other Indemnified Person may have at common law or otherwise. The Company
hereby consents to personal jurisdiction, service of process and venue in any
court in which any Claim which is subject to this Indemnification Agreement
is brought against Prudential Securities or any other Indemnified Person.
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EACH OF PRUDENTIAL SECURITIES AND THE COMPANY (ON ITS OWN BEHALF
AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS
STOCKHOLDERS) WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, CLAIM, SUIT,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE)
RELATING TO OR ARISING OUT OF THIS INDEMNIFICATION AGREEMENT.
In connection with Prudential Securities' engagement of even date
herewith, Prudential Securities may also be engaged to act for the Company in
one or more additional capacities. The terms of any such engagement may be
embodied in one or more separate written agreements. This Indemnification
Agreement shall apply to the engagement of even date herewith, all such other
engagements (whether written or oral) and any modification thereof and shall
remain in full force and effect following the completion or termination of
any such engagement.
The benefits of this Indemnification Agreement shall inure to the
respective successors and permitted assigns of the parties hereto and of the
Indemnified Persons hereunder and their successors, permitted assigns and
representatives, and the obligations and liabilities assumed in this
Indemnification Agreement by the parties hereto shall be binding upon their
respective successors and permitted assigns. This Indemnification Agreement
may not be assigned without the prior written consent of the nonassigning
party (or parties).
This Indemnification Agreement may not be amended or modified except
in a writing signed by the party hereto against which enforcement of this
Indemnification Agreement is sought and shall be governed by and construed in
accordance with the laws of the State of New York, without regard to
principles of conflicts of laws.
Very truly yours,
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------
▇▇▇▇ ▇▇▇▇▇
President & CEO
Accepted and agreed as of the
date first above written:
PRUDENTIAL SECURITIES INCORPORATED
By: /s/ ▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Managing Director Managing Director
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