BUSINESS DEVELOPMENT AGREEMENT
This Business Development Agreement
(the “Agreement”) is made and entered into as of the 14st day of
June 2008, by and between MIRA, LLC, a Nevada limited liability company
(“MIRA”), Xxxxxx Xxxxxxxx (“Xxxxxxxx”), Xxxxxxxx Xxxxxxxx (Xxxxxxxx”), and Xxxxx
Xxxxxxxxx (“Gadkowski”) (collectively referred to herein as “Consultants”) and
Xxxxxxx Holdings, Inc., a Nevada corporation, its Affiliates, and shareholders
of record as of the date hereof (collectively “BHI”).
WHEREAS,
BHI is a reporting company with a class of securities registered pursuant to the
Securities Exchange Act of 1934, as amended (the “Act”), the business operations
of which have ceased;
WHEREAS,
BHI is now delinquent in its filing requirements with the U.S. Securities and
Exchange Commission as required by the Act, and has been since at least December
31, 2005, perhaps longer;
WHEREAS,
trading in the common stock of BHI has ceased;
WHEREAS,
the common stock of BHI is worthless;
WHEREAS,
the shareholders of BHI have determined that their respective interests in BHI
are and will continue to be worthless unless some action is taken by them to
cause BHI to undertake some form of business operations
WHEREAS,
BHI shareholders Xxxxxxxx and Xxxxxxxx (the “New Business Group”) have
undertaken to explore and develop a new line of business for BHI, as more fully
described herein, and have proposed to the other shareholders of BHI the
establishment of the relationship between BHI and Consultants described
herein;
WHEREAS,
the New Business Group have formed Consultant MIRA for purposes of this
Agreement and together own a majority in interest of Consultant;
WHEREAS,
the Shareholders have determined to explore a new line of business for BHI in
the financial products and services industry as herein described, and in
connection therewith hereby engage Consultants to conceptualize, research,
develop, and implement a plan of operation, and to create the business,
described herein.
WHEREAS,
the Shareholders shall determine if they wish to acquire the business for the
purpose of re-establishing business operations for BHI that may permit it to
realize profitable operations and create value for its existing
Shareholders;
WHEREAS,
the Consultants have previously rendered services to BHI in contemplation of
entering into this Agreement which have resulted in a variety of understandings,
agreements, and relationships, all of which have been the subject of ongoing
negotiations and business developments resulting in material changes and
revisions to such understandings, agreements, and relationships, such that, to
the extent any binding legal obligations were created between and among the
parties they are deemed to be rescinded and void ab initio, and that this
Agreement shall be and is the agreement of the parties hereto;
IT IS
THEREFORE AGREED,
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1.
ENGAGEMENT. BHI hereby engages and retains Consultants for and
on behalf of BHI, its subsidiaries and affiliated companies, and its current
shareholders (collectively, the “Affiliates”) to perform the Services set forth
below, and Consultants hereby accept such appointment on the terms and subject
to the conditions hereinafter set forth.
2.
INDEPENDENT
CONTRACTOR.
A. Consultants shall have
broad discretion, consistent with the development and implementation of the Plan
described herein and the creation and operation of the Business, to undertake
any and all actions Consultants deems necessary to develop and implement the
Plan, in its sole discretion.
B. Consultants are, and in all
respects shall be deemed to be, independent contractors in the performance of
its duties hereunder, any law of any jurisdiction to the contrary
notwithstanding.
C. Consultants shall not, by
reason of this Agreement or the performance of the Services, be or be deemed to
be, employees, agents partners, or co-venturers of BHI.
D. Consultants shall not have
or be deemed to have, fiduciary obligations or duties to BHI or its Affiliates
and shall be free to pursue, conduct and carry on for their own account (or for
the account of others) such activities, employments, ventures, businesses and
other pursuits as Consultants in their sole, absolute and unfettered discretion,
may elect.
3.
SERVICES TO BE
RENDERED BY CONSULTANTS.
A. Generally.
Consultants will conceptualize, develop, implement, and execute a plan (the
“Plan”) that will cause the formation, start-up, and operation of a financial
service company (the “Business”) providing reverse mortgage, insurance, and/or
other investment advisory or financial services to the senior market, together
with ancillary products and services that Consultants determine may provide
profit opportunities for the Business. In this regard, Consultants shall
identify and acquire business opportunities, sales and managerial talent,
product and service providers, professional relationships and other tangible and
intangible assets and relationships that Consultants believe will facilitate the
successful formation, start-up, and operation of the Business. As
conceptualized, developed, implemented and executed by Consultants, the Plan may
take on aspects not now foreseen including the identity of sales and management
executives who will work for the Business, existing companies that the Business
may acquire or with whom the Business will engage in contractual or other
business relationships deemed beneficial by Consultants to the execution of the
Plan, and the formation, start-up, and operation of the Business, specific
geographic markets to be penetrated, financial products and services to be
offered, business process and systems to be implemented, and a myriad of other
issues commonly confronted by new start-up businesses. Until such time as
acquired by BHI in accordance with Section 8, all aspects of the Plan and the
Business, whether they be ideas, assets, contractual relationships, the identity
of companies and individuals that will be acquired by, or who shall come to work
for the Business, and all other aspects or components of the Plan and the
Business (the “Components) shall be the property of (using this term in the
broadest possible sense) Consultant MIRA. In this regard, it can be anticipated
that Consultant MIRA shall be the entity employed to implement the Plan, acquire
the Components, and form, start-up, and operate the Business until such time as
the Business is formally acquired by BHI in accordance with the terms
hereof.
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B. Best
Efforts. Consultants shall devote
such time and best efforts to the Plan and the Business as Consultants in their
sole discretion shall decide. Consultants cannot guarantee results on behalf of
BHI, but shall pursue all reasonable avenues available through its network of
contacts. BHI and Consultants hereby confirm their express written intent that
Consultants shall only be required to devote such time to the performance of the
Services as Consultants shall, in its discretion, deem necessary and proper to
discharge its responsibilities under this Agreement.
4.
OBLIGATIONS OF
BHI.
A. Appointment
of Consultants’s Designee as Officer and Director. BHI acknowledges that
there has been no regular management of BHI for many years and that for all
practical purposes BHI has had no operations and has been dormant. In order to
provide for the necessary corporate governance to bring the Plan to fruition,
BHI has prior hereto and for purposes hereof, elected Consultants’ designee,
Xxxxxxxx (who BHI acknowledges is an affiliate of Consultant MIRA and a
beneficial shareholder of shares of common stock of BHI) to the position of sole
director and chief executive officer of BHI.
B. BHI’S To
Raise $500,000. In contemplation hereof, and prior hereto, BHI commenced
the offer and sale of a minimum of $500,000 face amount of its 12% Convertible
Debentures (the “Debentures”) for the purpose of paying expenses incurred by
Consultants in connection with bringing the Plan to fruition. BHI acknowledges
that successful implementation of the Plan will require the successful
completion of the offer and sale of its Debentures, and BHI acting through its
officer, will use its best efforts to bring about the successful completion of
the offering of Debentures. The loan proceeds of the Debentures will
be used by BHI to pay expenses BHI may incur in connection with its performance
pursuant hereto, and shall be loaned to MIRA in accordance with the provisions
of Section 5 hereof.
C. BHI To
Obtain Listing for its Common Stock. BHI shall obtain the listing or
qualification of its common stock for trading via the facilities of a recognized
trading system or exchange acceptable to Consultants at such time as Consultants
may so recommend.
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D. BHI to
Increase Authorized Shares. BHI shall undertake to obtain shareholder
approval to amend its certificate of incorporation to increase the number of
authorized shares to 100,000,000.
5. ADVANCES.
BHI shall make such advances to MIRA as MIRA may reasonably request in order
that MIRA may pay all normal and reasonable expenses reasonably incurred by MIRA
in connection with the performance of Consultants hereunder. All advances made
pursuant hereto shall be deemed to be a loan to Consultant MIRA, shall be
recorded upon the accounting records of MIRA as a loan payable, and shall be
recorded upon the accounting records of BHI as a loan receivable.
6. COMPENSATION.
In consideration for the Services, BHI agrees that Consultants shall be
paid compensation as follows:
A. Fee for
Service to MIRA. From time to time as may be determined by MIRA, MIRA
shall invoice BHI for the services rendered hereunder. Such invoices shall
include all normal and reasonable expenses incurred by MIRA in connection with
the services rendered hereunder. As used herein “normal and reasonable expenses”
shall include but are not limited to: all fees and expenses paid to Consultants
Roylance, Kendrick, and Gadkowski (who may be deemed to be sub-consultants of
MIRA for purposes hereof as the circumstances may dictate and which fees and
expenses may be paid directly by MIRA or by BHI as the circumstances may
require), accounting, long distance communication, express mail, affiliated and
outside consultants (including those consultants who act in an official capacity
for BHI as officers and/or directors, during the development and execution of
the Plan), travel (including: airfare, hotel lodging and meals, transportation,
etc.), the fees and costs of legal and accounting professionals necessary to
represent the interests of BHI, and other costs involved in the performance and
execution of Consultants’ services under this Agreement. All such invoices
issued by MIRA to BHI shall become immediately due and payable, and BHI shall
promptly pay MIRA for all such expenses. At MIRA’s discretion, MIRA may offset
any or all of such invoice against amounts loaned to MIRA in accordance with
Section 5 above.
B. Monthly
Advisory Fees to MIRA. Commencing on the date BHI acquires the
Business and Plan, BHI shall pay to Consultant MIRA, in advance, a monthly fee
of fifteen thousand dollars ($15,000.00 USD) (the “Monthly Advisory
Fees”). The Monthly Advisory Fees are due and payable on the 1st day of
each month. If this Agreement is entered into after the 1st day of
the month, a pro rata portion of the Monthly Advisory Fees shall be paid for the
remaining days of the month in which the Agreement is executed. The
Monthly Advisory Fees are exclusive of the other compensation and reimbursable
expenses elsewhere provided for in this Agreement. Said Monthly
Advisory Fees shall continue for Twelve (12) months, or shall end upon proper
termination of this Agreement according to the Section 11 below. To the extent
not paid by BHI as herein provided, the Monthly Advisory Fee shall be accrued by
BHI and shall be paid when reasonably practical or upon demand by MIRA,
whichever first occurs.
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C. Common
Stock to Xxxxxxxx, Xxxxxxxx and Xxxxxxxxx. Consultants
Xxxxxxxx, Xxxxxxxx and Gadkowski (or such assigns as such Consultants may
designate in writing) shall each be issued and delivered 14,000,000 shares of
the common stock of BHI. The shares of common stock of BHI shall be
referred to herein as the “Shares” and the Shares to be issued to Consultants
pursuant to this Section 6(C) shall be referred to collectively as the
“Engagement Shares”. The Engagement Shares have been previously issued on the
transfer records of BHI in the name of Consultants and/or their designees in
contemplation hereof but have not been, nor shall they be, delivered to
Consultants until such time as this Agreement is executed by all parties hereto,
and at such time the Engagement Shares shall be delivered and shall be deemed
earned by Consultants, and Consultants’ direct and indirect pecuniary interests
therein shall then arise Only upon delivery in accordance herewith, shall
Consultants and/or their designees be deemed to be the owners of the Engagement
Shares. Until delivered to Consultants in accordance herewith, the Engagement
Shares shall be deemed by BHI for all purposes to be authorized but unissued.
The parties hereto agree that to the extent Consultants designate any other
person or entity to be delivered Engagement Shares, such designation constitutes
a gift to the designee, that such Engagement Shares represent compensation to
Consultants to the full extent of the Engagement Shares designated by any
Consultant in accordance herewith, and that such designated Engagement Shares
are subject to all restrictions and limitations imposed hereby and to the option
granted to BHI pursuant to Section 7 hereof.
D. Percentage
Override to All Consultants. For a period of thirty-years commencing on
the date BHI acquires the Business, Consultants MIRA, Roylance, Kendrick, and
Gadkowski shall each be paid a payment equal to 1.5% of the BHI’s gross revenues
from all sources (such payment is referred to herein as the “Percentage
Override” which in the aggregate shall equal 6%). The percentage override shall
be paid as soon as practical following the end of each fiscal quarter, but in no
event later than 45 days following the last day of any fiscal quarter. By
written notice to BHI, any Consultant may assign all or any portion of his
individual Percentage Override to any other person or entity.
7. BHI’S
OPTION TO PURCHASE ENGAGEMENT SHARES. BHI shall have the option to
purchase the Engagement Shares if Consultant has not satisfied the following
conditions on or before the date specified. The exercise price of the option
granted hereby shall be $.0001 per share.
A. Executed
Purchase Agreement for Mortgage Broker. On or before August 31, 2008,
Consultants shall have entered into for the benefit of BHI a binding purchase
agreement for the acquisition of a mortgage lender possessing such licenses as
are necessary to the conduct of the Business in a minimum of five states which
states shall include by way of registration or exemption the state
Florida.
B. BHI Shall
be Current in its Securities Exchange Act Reporting Obligations. On or
before Sepetmber 30, 2008, Consultants shall undertake all such acts and make
all such filing as may be required so that BHI shall become current in the
filing of all reports required of BHI under the Securities Exchange Act of 1934,
as amended (the “34 Act”).
C. BHI Shall
Have Undertaken Such Acts as May be Necessary for its Common Shares to be Quoted
via the Facilities of the “Pink Sheets”. By December 31, 2008,
Consultants shall have completed all such other acts as may be necessary to
allow brokers and dealers in securities licensed as such by the U.
S. Securities and Exchange Commission to enter quotations for BHI’s
common stock through the facilities of the so-called “Pink Sheets Current
Information” or “Pink Sheets Limited Information” systems maintained by Pink OTC
Markets, Inc.
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8. BHI’s
OPTION TO ACQUIRE THE PLAN AND THE BUSINESS. BHI shall have the right but
not the obligation to acquire the Plan and the Business within the one-year
period commencing on the effective date of this Agreement. BHI’s right to so
acquire the Plan and the Business shall be effective only upon satisfaction of
the following condition precedent within the one-year period commencing upon the
effective date hereof:
A. Acquisition
Shares. BHI shall issue as additional compensation hereunder, to each of
Consultants Roylance, Kendrick, and Gadkowski, or such other assignees any such
Consultant may designate in writing to BHI, 4,634,910 shares of its common stock
(an aggregate of 13,904,730 shares of its common stock collectively referred to
herein as the “Acquisition Shares”).
Upon
BHI’s exercise of the option granted herein, Consultants shall transfer and
assign to BHI all of the Components comprising the Business, whether in the form
of assets (tangible or intangible), contract rights, information, or otherwise.
The Acquisition Shares shall be subject to the option granted to BHI respecting
the Engagement Shares to the same extent as provided in Section 7
hereof.
9. EFFECT OF
NO ACQUISITION; CLAWBACK. Subject to the option granted to BHI to
purchase the Engagement Shares and the Acquisition Shares pursuant to Section 7
hereof, if BHI fails to acquire the Plan and Business as set forth above in
Section 8, Consultants shall have the sole right of ownership in and to the Plan
and the Business and Consultants’ obligations to BHI as set forth herein shall
be deemed to be fully performed in accordance with the terms hereof, and this
Agreement shall be terminated. Moreover, at any time during the one-year period
referred to in Section 8, Consultants may, in their sole discretion and at their
sole option, terminate BHI’s right to acquire the Plan and Business as therein
provided, by giving to BHI written notice of all such Consultants’ intention to
terminate BHI’s option to acquire the Plan and the Business and to thereafter
promptly deliver to BHI the consideration set forth in the second following
sentence. In addition, in the event BHI has exercised its acquisition right
during such one year period in accordance with Section 8, Consultants may
reacquire the Plan and the Business, to the same extent as if Consultants had
terminated BHI’s option to acquire the Plan and the Business in accordance with
the preceding sentence, by providing to BHI its written notice of its intent to
reacquire the Plan and the Business, and by thereafter promptly delivering to
BHI the consideration set forth in the next following sentence. The
consideration shall be the assignment of a total of 12,000,000 of the Engagement
Shares issued pursuant to Section 6(C), subject to appropriate adjustment for
stock splits, recapitalizations, reverse stock splits, and the
like.
10.
REPRESENTATIONS,
WARRANTIES AND COVENANTS.
A. Execution. The
execution, delivery and performance of this Agreement, in the time and manner
herein specified, will not conflict with, result in a breach of, or constitute a
default under any existing agreement, indenture, or other instrument to which
either BHI or Consultants is a party or by which either entity may be bound or
affected.
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B.
Non-Circumvention. BHI hereby irrevocably agrees not to
circumvent, avoid, bypass, or obviate, directly or indirectly, the intent of
this Agreement, including avoiding payment of fees or other compensation to
Consultants or its affiliates in connection with the Plan and the Business, or
the obligations to be satisfied by BHI hereunder, or with any or other entity
identified or introduced by Consultants to BHI and/or its
Affiliates.
C. Corporate
Authority. Both BHI and Consultants have full legal authority
to enter into this Agreement and to perform the same in the time and manner
contemplated.
D. Authorized
Signatures. The individuals whose signatures appear below are
authorized to sign this Agreement on behalf of their respective
corporations.
E. Cooperation. BHI
will cooperate with Consultants, and will promptly provide Consultants with all
pertinent materials and requested information in order for Consultants to
perform its Services pursuant to this Agreement.
F. Not a
Broker/Dealer. BHI acknowledges and understands that
Consultants is neither a broker/dealer nor a Registered Investment
Advisor.
G. Accredited
Investor. Consultants acknowledge they are accredited
Investors as that term is defined in Regulation D of the Securities Act of 1933,
as amended.
11.
TERM AND
TERMINATION
A. This Agreement shall be
effective upon its execution and shall remain in effect for a period of one (1)
year unless otherwise terminated as provided in this Section VIII.
B. BHI shall have the right to
terminate Consultants’ engagement hereunder by furnishing Consultants with
ninety-days advance written notice of such termination. Upon receipt
of such written notice, this Agreement will then terminate on the last day of
the next full calendar month following the receipt of notice. Notice
of termination must be received before the end of the last day of the calendar
month in order to terminate the Agreement on the last day of the next full
calendar month following the receipt of notice.
C. Notwithstanding the
foregoing, no termination of this Agreement by BHI shall in any way affect
Consultants’ right to receive the items of compensation specified in Section 6
hereof, including:
(i) All fees respecting services
rendered through the date of termination and invoiced in accordance with Section
6(A);
(ii) The Monthly Advisory Fee provided
for in Section 6(B) through the end of the month during which this Agreement
terminates;
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(iii) The Engagement Shares set forth
in Section 6(C), which are deemed earned as of the date hereof;
and,
(iv) The Percentage Override provided
for by Section 6(D), which is deemed earned as of the date hereof.
12.
CONFIDENTIAL
DATA
A. Except for its employees,
agents and independent contractors, Consultants shall not divulge to others, any
trade secret or confidential information, knowledge, or data concerning or
pertaining to the business and affairs of BHI, obtained by Consultants as a
result of its engagement hereunder, unless authorized, in writing by
BHI.
B. Except for its employees,
agents and independent contractors or as required by law or the rules of any
securities exchange or stock market, BHI shall not divulge to others, any trade
secret or confidential information, knowledge, or data concerning or pertaining
to the business and affairs of Consultants, the Plan, or the Business obtained
by BHI as a result of its engagement hereunder, unless authorized, in writing,
by Consultants.
C. Consultants shall not be
required in the performance of its duties to divulge to BHI or any officer,
director, agent or employee of BHI, any secret or confidential information,
knowledge, or data concerning any other person, firm or entity (including, but
not limited to, any such persons, firm or entity which may be a competitor or
potential competitor of BHI) which Consultants may have or be able to obtain
otherwise than as a result of the relationship established by this
Agreement.
D. In any suit to enforce the
provisions of this Section 11, the parties agree there shall be no adequate
remedy at law and that the parties shall be entitled to seek injunctive
relief.
13.
OTHER MATERIAL TERMS
AND CONDITIONS:
A.
Indemnity. Exhibit A hereto contains the mutual
indemnification of the parties hereto and by this reference is incorporated
herein.
B. Provisions. The provisions
of Sections 6, 9, 12, 13, and Exhibit A shall survive the termination or
expiration of this Agreement.
C. Additional
Instruments. Each of the parties shall from time to time, at
the request of others, execute, acknowledge and deliver to the other party any
and all further instruments that may be reasonably required to give full effect
and force to the provisions of this Agreement.
D. Entire
Agreement. Each of the parties hereby covenants that this
Agreement is intended to and does contain and embody herein all of the
understandings and Agreements, both written or oral, of the parties hereby with
respect to the subject matter of this Agreement, and that there exists no oral
agreement or understanding expressed or implied liability, whereby the absolute,
final and unconditional character and nature of this Agreement shall be in any
way invalidated, empowered or affected. There are no representations,
warranties or covenants other than those set forth herein.
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E. Laws of the State of
Nevada. This Agreement shall be deemed made in, governed by,
and interpreted under and construed in all respects in accordance with the laws
of the State of Nevada, irrespective of the country or place of domicile or
residence of either party. In the event of controversy arising out of
the interpretation, construction, performance or breach of this Agreement, the
parties hereby agree and consent to the jurisdiction and venue in the state
district court in and for Xxxxx County, Nevada or the United States District
Court for the District of Nevada, as appropriate, and further agree and consent
that personal service or process in any such action or proceeding outside of the
State of Nevada and Xxxxx County shall be tantamount to service in person within
Xxxxx County, Nevada and shall confer personal jurisdiction and venue upon
either of said Courts.
F. Assignments. The
benefits of the Agreement shall inure to the respective successors and assigns
of the parties hereto and of the indemnified parties hereunder 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.
G. Originals. This
Agreement may be executed in any number of counterparts, each of which so
executed shall be deemed an original and constitute one and the same
Agreement. Facsimile copies with signatures shall be given the same
legal effect as an original.
H. Addresses of
Parties. Each party shall at all times keep the other informed
of its principal place of business if different from that stated herein, and
shall promptly notify the other of any change, giving the address of the new
place of business or residence.
I. Notices. All
notices that are required to be or may be sent pursuant to the provision of this
Agreement shall be sent by certified mail, return receipt requested, or by
overnight package delivery service to each of the parties at the address
appearing herein, and shall count from the date of mailing or the validated air
xxxx.
J. Modification and
Waiver. A modification or waiver of any of the provisions of
this Agreement shall be effective only if made in writing and executed with the
same formality as this Agreement. The failure of any party to insist
upon strict performance of any of the provisions of this Agreement shall not be
construed as a waiver of any subsequent default of the same or similar nature or
of any other nature.
K. Attorney’s
Fees. If any arbitration, litigation, action, suit, or other
proceeding is instituted to remedy, prevent or obtain relief from a breach of
this Agreement, in relation to a breach of this Agreement or pertaining to a
declaration of rights under this Agreement, BHI shall pay any and all attorney’s
fees incurred by Consultants and/or its affiliates. In this regard,
BHI shall advance such amounts as Consultants may deem reasonably necessary to
pay for such attorney’s fees of Consultants and Consultants’ affiliates when and
as incurred. As used in this Agreement, attorneys’ fees will be deemed to be the
full and actual cost of any legal services actually performed in connection with
the matters involved, including those related to any appeal or the enforcement
of any judgment calculated on the basis of the usual fee charged by attorneys
performing such services.
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APPROVED
AND AGREED:
| XXXXXXX HOLDINGS, INC. | |||
|
|
By:
|
/s/ Xxxxxxxx Xxxxxxxx | |
| Xxxxxxxx Xxxxxxxx | |||
| Address: | |||
| MIRA, LLC | |||
|
|
By:
|
/s/ Xxxxx Xxxxxxxxx | |
| Xxxxx Xxxxxxxxx | |||
| Address: | |||
Attachments: Exhibit
“A” Indemnification
Agreement
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Each
party hereto (the “Indemnifying Party”) agrees to indemnify and hold harmless
the other party, its officers, employees and authorized agents (the “Indemnified
Party”) against any and all losses, claims, damages, obligations, penalties,
judgments, awards, liabilities, costs, expenses and disbursements (incurred in
any and all actions, suits, proceedings and investigations in respect thereof
and any and all legal and other costs, expenses and disbursements in giving
testimony or furnishing documents in response to a subpoena or otherwise),
including without limitation, the costs, expenses and disbursements, as and when
incurred, of investigating, preparing or defending any such action, suit,
proceeding or investigation (whether or not in connection with any action in
which the Indemnified Party is a party), directly or indirectly, caused by,
relating to, based upon, arising out of, or in connection with Consultants’s
acting for BHI under the Agreement dated January 20, 2008, between BHI and
Consultants to which these indemnification provisions are attached and form a
part (the “Agreement”).
These
indemnification provisions shall be in addition to any liability which either
party may otherwise have to the other party or the persons indemnified below in
this sentence and shall extend to the following: each party, its affiliated
entities, partners, employees, legal counsel, agents and controlling persons
(within the meaning of the federal securities laws), and the officers,
directors, employees, legal counsel, agents, and controlling persons of any of
them (collectively, the “Party Affiliates”). All references to
Indemnified Party in these indemnification provisions shall be understood to
include any and all of the Party Affiliates of the Indemnified
Party.
If any
action, suit, proceeding or investigation is commenced, as to which any of the
either party or any of the Party Affiliates propose indemnification under the
Agreement, they shall notify the Indemnifying Party with reasonable promptness;
provided however, that any failure by the party seeking indemnification to
notify the Indemnifying Party shall not relieve the Indemnifying Party from its
obligations hereunder. The Indemnified Party and the Party Affiliates
shall have the right to retain counsel of their own choice (which shall be
reasonably acceptable to the Indemnifying Party) to represent them, and the
Indemnifying Party shall pay fees, expenses and disbursements of such counsel;
and such counsel shall, to the extent consistent with its professional
responsibilities, cooperate with the Indemnifying Party and any counsel
designated by the Indemnifying Party. The Indemnifying Party shall be
liable for any settlement of any claim against the Indemnified Party and/or the
Party Affiliates, as the case may be, made with the Indemnifying Party’s written
consent, which consent shall not be unreasonably withheld. The Indemnifying
Party shall not, without the prior written consent of the party seeking
indemnification, which shall not be unreasonably withheld, settle or compromise
any claim, or permit a default or consent to the entry of any judgment in
respect thereof, unless such settlement, compromise or consent includes, as an
unconditional term thereof, the giving by the claimant to the party seeking
indemnification of an unconditional release from all liability in respect of
such claim.
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