Financial Consulting Services Agreement - Ladenburg, Thalmann & Co. Inc. and Provident American Corp.
June 6, 1996
Provident American Corporation
2500 DeKalb Pike
P.O. Box 511
Norristown, PA 19404-0511
Attention: Mr. Alvin H. Clemens
Chairman of the Board
Gentlemen:
This will confirm that Ladenburg, Thalmann & Co. Inc. ("Ladenburg") has
been retained as a financial advisor to Provident American Corporation (the
"Company") to perform such financial consulting services as the Company may
reasonably request. The term of this agreement (the "Agreement") shall extend
through June 6, 1997, provided, however, that either the Company or Ladenburg
may terminate this Agreement prior to such date and as of the end of any month
upon no less than 30 days prior written notice.
As part of and concomitant with its services as financial advisor to the
Company, Ladenburg will undertake to:
1. Sponsor the Company to the institutional investment community by providing
research coverage of the Company and assisting in the planning and
execution of a presentation to institutional investors.
2. Assist in the preparation and execution of a presentation by the Company
concerning its historical financial performance, its current market
position and the prospects for future operational and financial
performance to Ladenburg's institutional and retail sales.
3. Manage the Company's investment portfolio of government and AAA and AA
rated corporate bonds for a quarterly fee equal to one quarter of the
average quarterly balance of the portfolio multiplied by 0.15% of the
first $100.0 million of the average quarterly balance of the portfolio and
0.10% on the amount of the portfolio in excess of $100.0 million. In
addition, the Company will pay Ladenburg an annual performance fee equal
to 20% of the excess, if any, of the total return on the portfolio for the
prior year over the total return on a to be established benchmark treasury
note for the comparable period.
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Provident American Corporation
Mr. Alvin H. Clemens
June 6, 1996
Page 2
4. Divest for the Company at its direction the 1.0 million shares of common
stock of The Loewen Group through open market trades for a fee of $0.065
per share, to be deducted from the proceeds of such sale or sales at the
time of settlement. The Company agrees to reimburse Ladenburg for all
reasonable out-of-pocket expenses incurred in carrying out the terms of
this Agreement, including travel, telephone, facsimile, courier, computer
time charges, attorneys' fees and disbursements, and any sales, use or
similar taxes. These out-of-pocket expenses will be payable from time to
time promptly upon invoicing by Ladenburg therefor.
As further consideration to Ladenburg for entering into this Agreement,
the Company will issue to Ladenburg or its designees upon the execution of this
Agreement a warrant or warrants to purchase 100,000 shares of the Company's
common stock at $9.00 per share, the terms and conditions governing such issue
of warrants to be substantially in the form of Appendix B hereto annexed. The
Company will have the option until December 6, 1996 to cancel one-half of such
warrants upon thirty days written notice if the Company is unsatisfied with the
performance of Ladenburg in providing the previously outlined services.
It is contemplated that from time to time the Company may request
Ladenburg to perform investment banking services (as distinguished from
financial consulting services) in connection with matters involving the Company,
such as the private placement of securities; mergers; acquisitions;
divestitures; valuations; or corporate reorganizations. Any fees which Ladenburg
shall become entitled to receive from the Company in connection with the
performance of any such investment banking services shall be set forth in a
separate agreement between the Company and Ladenburg and shall be in addition to
the compensation provided for herein. Ladenburg, however, will have no
obligation to enter into any separate agreement, the terms and conditions of
which must be negotiated between Ladenburg and the Company.
In order to enable Ladenburg to render its services hereunder, the Company
agrees to provide to Ladenburg, among other things, all reasonable information
requested or required by Ladenburg including, but not limited to, information
concerning historical and projected financial results and possible and known
litigious, environmental and other contingent liabilities. The Company also
agrees to make available to Ladenburg such representatives of the Company,
including, among others, directors, officers, employees, outside counsel and
independent certified public accountants, as Ladenburg may reasonably request.
The Company
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will promptly advise Ladenburg of any material changes in its business or
finances. The Company represents that all information made available to
Ladenburg by the Company will be complete and correct in all material respects
and will not contain any untrue statements 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 made. In rendering
its services hereunder, Ladenburg will be using and relying primarily on such
information without independent verification thereof or independent appraisal of
any of the Company's assets. Ladenburg does not assume responsibility for the
accuracy or completeness of the information to which reference is made hereto.
The services herein provided are to be rendered solely to the Company.
They are not being rendered by Ladenburg as an agent or as a fiduciary of the
shareholders of the Company and Ladenburg shall not have any liability or
obligation with respect to its services hereunder to such shareholders or any
other person, firm or corporation.
The Company and Ladenburg hereby agree to the terms and conditions of the
Indemnification Agreement attached hereto as Appendix A with the same force and
effect as if such terms and conditions were set forth at length herein.
This Agreement sets forth the entire understanding of the parties relating
to the subject matter hereof and supersedes and cancels any prior
communications, understandings and agreements between the parties. This
Agreement cannot be terminated or changed, nor can any of its provisions be
waived, except by written agreement signed by all parties hereto or except as
otherwise provided herein. This Agreement shall be binding upon and inure to the
benefit of any successors and assigns of the Company and Ladenburg.
This Agreement shall be governed by and construed to be in accordance with
the laws of the State of New York applicable to contracts made and to be
performed solely in such state by citizens thereof. Any dispute arising out of
this Agreement shall be adjudicated in the courts of the State of New York or in
the federal courts sitting in the Southern District of New York, and the Company
hereby agrees that service of process upon it by registered or certified mail at
its address set forth above shall be deemed adequate and lawful. The parties
hereto shall deliver notices to each other by personal delivery or by registered
or certified mail (return receipt requested) at the addresses set forth above.
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Provident American Corporation
Mr. Alvin H. Clemens
June 6, 1996
Page 4
Please confirm that the foregoing is in accordance with your understanding
by signing upon behalf of the Company and returning an executed copy of this
Agreement, together with the warrant or warrants described herein, whereupon
after execution by Ladenburg this Agreement shall become binding between the
Company and Ladenburg. A telecopy of a signed original of this Agreement shall
be sufficient to bind the parties whose signatures appear hereon.
Very truly yours,
LADENBURG, THALMANN & CO.
By:______________________
Peter M. Graham
President
ACCEPTED AND AGREED TO:
PROVIDENT AMERICAN CORPORATION
By:___________________________
Alvin H. Clemens
Chief Executive Officer
Chairman of the Board
Date: June 14, 1996