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EXHIBIT 10.55
SUBJECT TO APPROVAL
OF PRUDENTIAL SECURITIES
INCORPORATED'S BUSINESS
REVIEW COMMITTEE
October 2, 1997
Xx. Xxxxxxx X. Xxxxx
Chief Financial Officer and Treasurer
Vision Twenty-One, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxx, Xxxxxxx 00000
Dear Xx. Xxxxx:
This will confirm the understanding and agreement (the "Agreement")
between Prudential Securities Incorporated ("Prudential Securities") and Vision
Twenty-One, Inc. (the "Company") as follows:
1. The Company hereby engages Prudential Securities as its exclusive
agent in arranging a bank credit facility of up to $50 million (the
"Facility") for , and acceptable to the Company with a limited number
of commercial banks and/or other financial institutions (the
"Investors").
2. Prudential Securities hereby accepts the engagement and in that
connection agrees to:
(a) assist the Company in the preparation of a Private Placement
Memorandum (the "Memorandum") describing the Company and the
Facility; which Memorandum shall not be made available to
potential Investors until such Memorandum and its use shall
be approved by the Company;
(b) use its best efforts to privately place the Facility; and
(c) prepare with the assistance and approval of the Company any
other communications to be used in arranging the Facility,
whether in the form of letter, circular, notice or otherwise.
3. In connection with Prudential Securities' engagement, the Company will
furnish Prudential Securities with any information concerning the
Company which Prudential Securities reasonably deems appropriate 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 all
such information concerning the Company (including, without
limitation, all information contained in the Memorandum and in
communications prepared pursuant to paragraph 2(c) hereof) will be
true and accurate in all material respects 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 therein not misleading in
light of the circumstances under which such statements are
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made. The Company represents and warrants to Prudential Securities
that any financial projections or forecasts provided to Prudential
Securities with respect to the Company represent the best currently
available estimates by the management of the Company of the future
financial performance by the company and are bases upon reasonable
assumptions. 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.
4. As compensation for the services to be rendered by Prudential
Securities hereunder, at closing, the Company shall pay Prudential
Securities a placement fee equivalent to: (a) the greater of (i)
$200,000 or (ii) one-percent (1.0%) of the total amount committed
under the Facility; plus (b) warrants to purchase 40,000 shares of
the Company's common stock with a strike price equivalent to the
closing price of the Company's common stock on the date of issuance
of the warrants. Such compensation shall be payable with respect to
any arrangement of the Facility or similar financing 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 and the Facility involves an Investor identified
by Prudential Securities or with whom Prudential Securities
substanially discussed the Facility during the term of its engagement
hereunder.
The Company shall also pay Prudential Securities a non-refundable
retainer fee (the "Retainer Fee") upon the signing and execution of
this engagement letter. The Retainer Fee shall consist of warrants to
purchase 10,000 shares of the Company's common stock with a strike
price equivalent to the closing price of the Company's common stock
on the date of issuance of the warrants. The Retainer Fee shall
become an obligation of the Company upon the Company's execution of
this Agreement and said obligation shall remain in full force and
effect until paid in full, regardless of whether or not the Company
terminates the Agreement prior to the above execution date.
5. The Company shall reimburse Prudential Securities for its reasonable
and customary out-of-pocket and incidental expenses not to exceed
$20,000 withot the prior approval of the company, incurred during
term of its engagement hereunder, including the fees and expenses of
its legal counsel and those of any advisor retained by Prudential
Securities.
6. Since Prudential Securities will be acting on behalf of the Company
in connection with this engagement, the Company agrees to indemnify
Prudential Securities as set forth in a separate letter agreement,
dated the date hereof, between Prudential Securities and the Company.
7. The Company agrees that during the term of Prudential Securities'
engagement hereunder it will not contact or solicit institutions or
other entities other than the Investors as potential participants in
the Facility.
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8. The term of Prudential Securities' engagement hereunder as the
Company's exclusive agent shall extend from the date hereof through
March 31, 1997. Subject to the provisions of paragraphs 3 through 6,
the last sentence of paragraph 8, and paragraphs 9 through 14 which
shall survive any termination of this Agreement, either party may
terminate the Prudential Securities' engagement hereunder at any time,
with or without cause, by giving the other party at least 10 days'
prior written notice. Upon the termination of the Prudential
Securities' engagement, the Company shall send a letter to each
Investor in form and substance acceptable to Prudential Securities'
notifying them of such termination.
9. Any advice to be provided by Prudential Securities' under this
Agreement, and the Memorandum, shall not be publicly disclosed or made
available to third parties, other than the Investors, without
Prudential Securities; prior consent except as may otherwise be
required by (i) law or regulation, (ii) order of any court or (iii)
order of any governmental agency. In addition, Prudential Securities
may not be publicly referred to without its prior consent.
10. The Company represents and warrants to Prudential Securities that
there are no brokers, representative or other persons which have an
interest in compensation due to Prudential Securities from any
transaction contemplated herein.
11. The benefits of this Agreement shall, together with the separate
indemnity letter, inure to the benefit of respective successors and
assigns of the parties hereto and of the indemnified parties hereunder
and thereunder and their successors and 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.
12. This Agreement may not be amended or modified except in writing and
shall be governed by and construed in accordance with the laws of the
State of New York, without regard to the principles of conflicts of
laws.
13. Prudential Securities and the Company warrant to each other that each
shall comply with all applicable state and federal securities laws in
connection with the offers each makes on behalf of the Company under
this agreement and Prudential Securities further warrants that it will
make sales only to Accredited Investors or Qualified Institutional
Buyers as defined under the rules and regulations of the Securities
Act of 1933, as amended.
14. EACH OF PRUDENTIAL SECURITIES AND THE COMPANY (ON ITS OWN BEHALF AND,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS
SHAREHOLDERS) WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR
OTHERWISE) RELATED TO OR ARISING OUT OF THE ENGAGEMENT OF THE AGENTS
PURSUANT TO, OR THE PERFORMANCE BY THE AGENTS OF THE SERVICES
CONTEMPLATED BY THIS AGREEMENT.
Prudential Securities is delighted to accept this engagement and looks forward
to working with you on this assignment. Please confirm that the foregoing
correctly sets forth our agreement by
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signing the enclosed duplicate of this letter in space provided and returning
it, whereupon this letter shall constitute a binding agreement as of the date
first above written.
PRUDENTIAL SECURITIES INCORPORATED
By: /s/ Xxx Xxxxxxxx
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Title: Xxx Xxxxxxxx, Director
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AGREED:
VISION TWENTY-ONE, INC.
By:
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Title:
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