SHARE PURCHASE BINDING LETTER OF INTENT
SHARE
PURCHASE BINDING LETTER OF INTENT
股份购买约束性意向书
This Share Purchase Binding Letter of
Intent (this "Agreement") is dated
as of September 29, 2009, by and between VLOV, Inc. (OTCBB: VLOV), a Nevada
corporation (the "Company"), and ARC
China, Inc., a Shanghai corporation ("Purchaser").
劲都人(国际)服饰有限公司(OTCBB: VLOV),
一家内华达州公司(“公司”)与宏弧商务咨询(xx)xxxx,xxxx外商独资公司(“买方”)于2009年7月31日签订本股份购买约束性意向书(“协议”)。
RECITALS
事实
WHEREAS, the Company desires
to have Purchaser buy shares of VLOV, and Purchaser desires to purchase shares
of VLOV, and help to facilitate financing and provide various investor
relations, corporate governance and other ancillary advisory and activist
investor services for the Company pursuant to the terms and subject to the
conditions set forth in this Agreement.
公司希望买方购买VLOV 股份,买方希望购买VLOV股份,并帮助公司进行融资、投资者关系、公司治理及其他顾问和股东维权服务,条款如本协议所规定。
NOW, THEREFORE, in
consideration of the services to be performed by Purchaser, and for the mutual
covenants and promises as specified hereinafter, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
为便于买方履行服务职责,双方兹订立如下条款,以确认双方所做承诺与保证及其它善意和有价值的考虑:
1. PURCHASER’S DUTIES
买方职责
(a) The
Company engages Purchaser and Purchaser accepts the Company's engagement to
prepare the Company for an equity or debt financing or series of equity or debt
financings for the Company and introduce certain investment banks and investors
to the Company for the purpose of purchasing the Company's securities in a
private placement and to provide various investor relations, corporate
governance and assemble all necessary components for NYSE Amex or Nasdaq Capital
Market listing and other ancillary advisory and activist investor services for
the Company (the "Services").
公司聘用买方,买方接受公司聘用,为其进行股权或债务融资,介绍投资银行和投资者以私募方式购买其证券,提供投资者关系、公司治理服务,为其准备在纳斯xx资本市场或纽交所上市,其他顾问和股东维权服务(“服务”)。
(b) Purchaser
further agrees to render the Services conscientiously and to devote Purchaser’s
reasonable efforts and abilities thereto, at such time during the term hereof
and in such reasonable manner as the Company and Purchaser shall mutually agree.
Purchaser further agrees that it will assist the Company to complete a Nasdaq or
NYSE Amex listing by December 31, 2009 on a best efforts basis.
买方同意在本协议期内将按双方协议谨慎和尽责提供服务,尽合理努力。买方并同意尽合理努力帮助公司在2009年12月31日前在纳斯xx或美交所上市。
2. TERM. The term of
this Agreement shall commence on the date hereof and continue until terminated
pursuant to Section 4 (the “Term”).
期限。 本协议即日生效,直至按照第4条提出终止(“期限”)。
3. REIMBURSEMENT OF
EXPENSES. For the Services rendered hereunder, the Company
agrees to provide Purchaser with the following:
费用报销。公司同意为买方提供的服务支付费用如下:
(a) Upon
closing of the Share Purchase, the Company shall reimburse Purchaser, up to
$15,000, for all reasonable out-of-pocket expenses associated with the
performance of the Services, including, without limitation, all of Purchaser's
travel, telecommunication, and other business expenses provided that the
Purchaser provides sufficient documentation of such expenses to the Company. The
Company shall not be required to make any reimburse of expenses as provided
herein in the even the Share Purchase does not close.
股份购买完成后,公司应报销买方为提供服务而支出的合理费用,包括但不限于差旅费,通讯费和其他费用, 但该支出费用不超过美金15,000。如股份购买无法完成,公司将没义务付本条款形容的费用。
(b) The
Company will be responsible for Purchaser’s legal and escrow fees relating to
the Share Purchase detailed in sections 5(a) and 5(c) below up to an aggregate
of $25,000.
公司应为第5(a)和5(c)条规定的股份购买支付法律和托管费用,总额可达25,000美元。
4. TERMINATION. This
Agreement shall terminate 21 days after the date of execution of the Agreement
unless it is extended by written agreement of both the Company and the
Purchaser. Purchaser may terminate this Agreement at any time
if there are material differences in the actual state of the business compared
to what has been provided in SEC filings or provided by the Company to
Purchaser.
终止。本协议在双方签署生效后的21天终止协议,除非双方书面同意延期。如果公司业务的实际状况与其SEC申报材料中的描述有重大差异,或与公司向买方提供的信息有重大差异,买方可以随时终止本协议。
5. REGISTRATION
RIGHTS. Following the closing of the Share Purchase ("Required
Filing Date"), within thirty (30) days of ARC China’s request, the Company will
use its commercially reasonable efforts to file a registration statement
("Registration Statement") for the unregistered shares with the U.S. Securities
and Exchange Commission ("SEC") registering the shares of the Company’s common
stock underlying the preferred stock and the warrants issued in the Share
Purchase. The Company will use its commercially reasonable efforts to
cause each Registration Statement to become effective no later than the date
that is the earlier of (i) 90 days following the later of the final closing date
of the Share Purchase and the date requested by ARC China (or, in the event of a
"full review" of the Registration Statement by the SEC, 150 days following the
final closing date of the Share Purchase) or (ii) five days after the SEC
declares the Registration Statement effective (each, a "Required Effective
Date"). If the Registration Statement (a) has not been filed on or
before a Required Filing Date or (b) has not been declared effective by the SEC
on or before a Required Effective Date, the Company shall, on the business day
immediately following the Required Filing Date or the Required Effective Date,
as the case may be, and each 30th day thereafter, make a payment to the
Purchaser of the Company’s Convertible Preferred Stock as partial compensation
for such delay equal to one percent 1.0% of the purchase price paid by the
Purchaser in the Share Purchase (and not previously sold by the Purchaser) until
the Registration Statement is filed or declared effective by the SEC, as the
case may be; provided, however, that in no event shall such payments exceed in
the aggregate ten percent 10.0% of the total purchase price for the Share
Purchase.
登记权。当股份购买完成后(”必要登记日“),宏弧商务咨询(上海)有限公司提出请求后30日内,公司将尽商业合理的努力提交登记声明(登记声明),向美国证券交易委员会(“SEC“)登记在股份购买中发行的优先股和认股权证。公司将尽商业合理的努力使登记声明在以下日期前生效,以较早日期为准(i)股份购买完成日或宏弧商务咨询(上海)有限公司要求日期后90日(如SEC全面审查,在股份购买完成之日起150日内),(ii)SEC宣告登记声明生效后5日内,(“必要生效日”)。如果登记声明
(a)在必要登记日当日或之前未提交,或(b)在必要生效日当日或之前未被SEC宣布生效,则公司应视情况在必要登记日或必要生效日之后第一个工作日,以及其后每30日,向可转换优先股投资人支付延迟损害赔偿金作为部分赔偿,金额为投资人在提交登记声明或登记声明由SEC宣布生效之前未售出的优先股之购买价格的1%,但支付总额不得超过股份购买价格的10%。
6. COVENANTS.
保证
(a) Within
21 days from the execution of this Agreement, the Purchaser shall buy
up to two million seven hundred ninety seven thousand two hundred and
three (2,797,203) units at a purchase price of $2.86 per unit, with
each unit consisting of one (1)-year convertible preferred shares of the Seller
with a one-to-one conversion ratio into common stock and a one-half three
(3)-year common stock purchase warrant with an exercise price of $3.43 per share
(the “Share Purchase”). Each share of preferred stock shall be
convertible at any time at the option of the Purchaser. The Share Purchase will
therefore consist of up to two million seven hundred ninety seven thousand two
hundred and three (2,797,203) units equivalent to up to two million seven
hundred ninety seven thousand two hundred and three (2,797,203) one (1)-year
convertible preferred shares of Seller at $2.86 per preferred share with a
one-to-one conversion ratio into common stock and up to one million three
hundred ninety eight thousand six hundred and two (1,398,602) three (3)-year
common stock purchase warrants with an exercise price of $3.43 per share (the
“Share Purchase”).
本协议生效日起的21天内,买方应立即向卖方购买 高达2,797,203股的一年期可转换优先股,价格为2.86美元每股,转换比例为1:1,和高达二分之一比例的三年期普通股认购权证,行权价为3.43美元每股(“股票购买”)。即,股票购买应包括可按每股2.86美元的价格和1:1的比例转换为2,797,203股普通股的一年期可转换优先股和行权价为3.43美元每股的1,398,602股三年期普通股认购权证(“股票购买”)。
(b) Unless
earlier converted at the option of the Purchaser pursuant to Section 6(a) above,
if the Company completes a Nasdaq or NYSE Amex listing prior to twelve (12)
months following the Share Purchase, the abovementioned convertible preferred
shares will be automatically converted to common shares. If the Company becomes
ineligible to list on either the Nasdaq or NYSE Amex due to a material issue
known to the Company but was not disclosed prior to the Share Purchase, the
abovementioned one (1)-year conversion period will be extended indefinitely at
the discretion of the Purchaser.
如果公司在股票购买后12个月内在纳斯xx或美交所上市,上述可转换优先股将转换为普通股。如果因公司知悉但未在股票购买前披露的重大事件而导致公司不符合纳斯xx或美交所上市条件,上述的一年转换期将无限期延长,具体时限由买方决定。
(c) The
Company agrees and covenants that it will escrow (i) US $150,000 in cash and
(ii) 300,000 three (3)-year common stock purchase warrants, priced at $3.43 per
share with cashless exercise rights, for Purchaser to allocate to investor
relations firms for marketing purposes for 12 months following the Share
Purchase. In case these warrants are transferred to a third party, such warrants
are non-refundable. The Company will only be responsible for the abovementioned
investor relations firms’ compensation for 12 months following the Share
Exchange. The Purchaser agrees and covenants that it will escrow up to 5% of the
Shares purchased, at Purchaser’s sole discretion, to be released to investor
relations firms designated from time-to-time by the Purchaser to supplement any
additional investor relations costs incurred during this time.
公司同意托管150,000美元的现金和定价为每股3.43美元、无现金行权的300,000股三年期普通股认购权证,由买方分配给投资者关系公司,以支付股份购买完成后起12个月为融资做公关的费用。如果权证已转让给第三方,权证不可退还。公司只需向上述投资者关系公司支付股份购买完成后起12个月的报酬。买方同意托管其购买股份的5%,由其自行决定,分配给其选定的投资者关系公司,支付上述期间任何额外的投资者关系费用。
(d) The
Company agrees and covenants that in connection with the Share Purchase, the
Company will conduct at least two road shows per 12-month period in each of the
United States and Europe, as directed by and in cooperation with the
Purchaser.
公司同意每12个月进行最少2次路演。
(e) During
the Term and for at least one year following the closing of the Share Purchase,
the Company covenants that it will cause one person designated by Purchaser to
be duly appointed or elected to the Company's Board of Directors, and further
covenants that it will cause to be duly appointed or elected additional
independent directors so that a majority of the Board of Directors shall meet
the independence requirements set forth in the Nasdaq Marketplace
Rules.
协议期间和股份购买完成后至少一年,公司同意接受买方指派的一名独立董事,并同意任命或选举独立董事,使董事会的构成符合纳斯xx市场规则。
(f) The
Company will retain a bilingual member of the senior management team, preferably
a CFO or controller for external communications which reports to the CFO. In
addition, the issuer will retain a board of directors which complies with NASDAQ
and NYSE Amex listing requirements within the next six (6) months after closing
of the Share Purchase..
公司同意聘用一位通晓中英文的高官成员,最好是CFO或向CFO汇报的负责对外沟通的财务总监。公司同意在股份购买完成后6个月内聘用一位符合纳斯xx和美交所上市规则的董事。
(g)Within six months after closing of the Share Purchase, the Company
covenants that it will establish and maintain an audit committee, a compensation
committee, a corporate governance and nominating committee, and such other
committees in accordance with the Nasdaq Marketplace Rules.
股份购买完成后的6个月内,公司同意按照纳斯xx市场规则建立审计委员会,报酬委员会,公司治理委员会,提名委员会等。
(h) The
Company covenants that it will use its best efforts to cause the Common Stock to
be eligible for quotation on the Nasdaq Capital Market or NYSE Amex (including
conducting a reverse stock split, if necessary).
公司同意尽最大努力使得普通股符合纳斯xx资本市场或美交所报价规则(必要时,进行股票反向分拆)。
(i) During
the Term, the Company will furnish Purchaser with all financial and other
information and data as Purchaser believes appropriate in connection with its
activities on the Company's behalf, and shall provide Purchaser full access to
its officers, directors, employees and professional advisors. The
Company agrees that it and its counsel will be solely responsible for ensuring
that the Share Purchase complies in all respects with the applicable
law. The Company represents and warrants that any material delivered
to Purchaser will not contain any untrue statement of material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements contained therein, in light of the circumstances under which they
were made, not misleading. The Company will promptly notify Purchaser
if it learns of any material inaccuracy or misstatement in, or material omission
from, any information theretofore delivered to Purchaser. The Company
recognizes and confirms that Purchaser, in connection with performing its
services hereunder, (i) will be relying without investigation upon all
information that is available from public sources or supplied to it by or on
behalf of the Company or its advisors, (ii) will not in any respect be
responsible for the accuracy or completeness of, or have any obligation to
verify, the same, (iii) will not conduct any appraisal of any assets of the
Company and (iv) may require that the information supplied to Purchaser
contains appropriate disclaimers consistent with the foregoing.
协议期间,公司同意向买方提供所需的财务数据和其他信息,保证买方能充分联络到其管理人员,董事,雇员和顾问。公司同意为股份购买的合法性负全责。公司保证向买方提供的信息真实,无重大失实、遗漏或误导。如有任何不实或遗漏,公司应及时通知买方。公司确认,买方提供服务的基础是(i)
未经调查,从公共来源,公司或其它顾问处得到的信息;(ii)
买方无责任核实此类信息的真实性和完整性;(iii)不做资产评估;(iv)
可要求此类信息随附免责条款。
7. STATUS OF THE
RELATIONSHIP. Purchaser shall be an independent contractor and
this Agreement shall not create an employer/employee relationship between the
parties. Purchaser shall have sole control of the manner and means of
performing the Services under this Agreement subject to the scope of the
Services and time limitations established by the Company. Except as
specifically granted to Purchaser, Purchaser shall have no right, authority or
power to act for or on behalf of the Company or its Affiliates or to bind the
Company or its Affiliates. All of Purchaser's activities will be at
its own risk and liability. Purchaser shall not be entitled to
receive, and shall not receive, any benefit provided by the Company to its
employees, including, without limitation, health insurance, dental insurance,
benefits or paid vacation.
合作性质。 买方为独立实体,本协议不形成雇主/雇员关系。在公司设定的服务范围和服务期限内,买方有权独立决定提供服务的方式。除非特别授权,买方无权代表公司或其关联机构进行任何有约束力的活动。买方自担风险和责任。买方不得享有公司为其雇员提供的福利,如医疗保险,牙科保险,带薪假期等。
8. INDEMNIFICATION;
EXCULPATION. Recognizing that Purchaser, in providing the
services contemplated hereby, will be acting as a representative of, and relying
on information provided by, the Company, the Company agrees to the provisions of
Schedule I
hereto. The Company shall use its best efforts to cause any binding
agreements with acquirors or providers of Financing to include exculpation and
indemnification provisions in favor of Purchaser which are equivalent to those
contained in Schedule
I and are binding on such parties. It is specifically
understood and agreed that the indemnification provisions of Schedule I shall be
binding on the successors and assigns of the parties hereto and of the
Indemnified Persons (as defined in Schedule I),
specifically including the continuing entity after any transaction involving the
Company and any successor thereto whether by subsequent merger, consolidation or
transfer of all or a substantial part of the assets or business of the Company
or such continuing entity.
赔偿;免责。 鉴于买方在提供服务过程中将以公司代表身份行事,并依赖公司提供信息,公司同意附件一所列条款。公司将尽最大努力使得于收购方或投资方达成的约束性协议中包含买方免责和赔偿条款,如附件一所列条款。特别是,附件一中的赔偿条款适用于各方的继承人和受让人,被赔偿方,合并或转让后的继受人。
9. MISCELLANEOUS.
其他
(a) Entire
Agreement. This
Agreement constitutes the entire agreement between the parties with respect to
the subject matter hereof and all prior negotiations and agreements, whether
written or oral, are merged into this Agreement.
完整性。 本协议为协议各方为所述事项达成的完整协议,涵盖了此前所有的谈判和达成的协议,无论是书面或口头形式。
(b) Severability. If any provision of this
Agreement shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provision or part of a provision of this Agreement, but this Agreement
shall be reformed and construed as if such provision had never been contained in
it, and any such provision shall be reformed so that it would be valid, legal
and enforceable to the maximum extent permitted.
独立性。 如本协议中任何条款被认定无效、违法、不可执行,其他条款不受影响。本协议按不包含该无效、违法、不可执行条款解释。该无效、违法、不可执行条款应加以修正。
(c) Counterparts. This
Agreement may be executed in several counterparts, each of which shall be deemed
an original, but all of which counterparts collectively shall constitute one
document representing the agreement among the parties.
份数。 本协议一式多份,每份均为原件。 所有份数构成协议各方间达成的合意。
(d) Amendment. This
Agreement may not be amended, discharged, terminated, modified or changed
orally, and any such proposed amendment, discharge, termination, modification or
change shall be in writing and signed by each of the parties
hereto.
修正。 本协议不得口头修改或终止。 任何修改或终止意向应以书面方式提出,并经协议各方签字确认。
(e) Waiver of
Breach. The
waiver by any party of a breach of any provision of this Agreement shall not
operate or be construed as a waiver of any subsequent breach, and no waiver
shall be valid unless it is in writing and is signed by the party against whom
such waiver is sought.
违约不计 一方对一个违约行为的不追求,不构成对后续违约行为的不追究,该违约不计应以书面方式确认后生效。
(f) Governing Law; Venue; Waiver
of Jury Trial. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be governed by
and construed and enforced in accordance with the internal laws of the State of
Delaware, without regard to the principles of conflicts of law
thereof. Each party agrees that all legal proceedings concerning the
interpretations, enforcement and defense of the transactions contemplated by
this Agreement (whether brought against a party hereto or its respective
Affiliates, directors, managers, officers, shareholders, members, employees or
agents) shall be conducted through binding arbitration in Shanghai,
China. Each party hereto hereby irrevocably submits to the exclusive
jurisdiction of arbitration conducted in Shanghai, China for the adjudication of
any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein (including with respect to the
enforcement of any of this Agreement), and hereby irrevocably waives, and agrees
not to assert in any suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of any such court, that such suit, action
or proceeding is improper. Each party hereto hereby irrevocably
waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof via registered or
certified mail or overnight delivery (with evidence of delivery) to such party
at the address in effect for notices to it under this Agreement and agrees that
such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any manner permitted by law. Each party
hereto hereby irrevocably waives, to the fullest extent permitted by applicable
law, any and all right to trial by jury in any legal proceeding arising out of
or relating to this Agreement or the transactions contemplated
hereby. If any party shall commence an action or proceeding to
enforce any provisions of this Agreement, then the prevailing party in such
action or proceeding shall be reimbursed by the other party for its reasonable
attorneys’ fees and other reasonable costs and expenses incurred with the
investigation, preparation and prosecution of such action or
proceeding.
适用法律;地点;放弃法庭审判 本协议按特拉华州法律解释和执行,不考虑法律冲突。协议各方同意将与本协议有关的法律行为(包括向协议一方或向其关联机构、管理人员、董事、股东、员工、代理提起的法律行为),如效力、执行、解释,在中国上海仲裁。协议各方同意将与本协议或相关交易有关的争议在中国上海仲裁,放弃向法院提起诉讼的权利。协议各方放弃个人送达,同意接受挂号信送达或隔夜快递送达(附送达证明),但不得视为法律许可的送达方式在此受到限制。协议各方在法律许可范围内,放弃与本协议有关的任何诉讼权利。 如果任何一方提起仲裁,执行本协议条款,败诉方需向胜诉方支付合理的律师费用,为调查、准备、提起仲裁支出的合理费用。
(g) Survival. The
provisions and restrictions contained in Sections 6(b)-(i), and 7 through 9
shall survive the termination of this Agreement or any extensions
thereof.
延续。
第7-9条在本协议终止后仍有效。
(h) Successor and
Assigns. This Agreement and all rights, liabilities and obligations
hereunder shall be binding upon and inure to the benefit of each party’s
successors and permitted assigns.
继承和转让。 本协议及所有权利义务适用于协议各方的继承人和受让人。
(i) SEC
Filings. The Company covenants and agrees that it will file
with the SEC on Form 8-K an announcement that it has entered into this Agreement
within one day of its execution, and further covenants and agrees that it will
file with the SEC additional Form 8-K's disclosing the entry into all material
agreements in connection with the Share Purchase and the closing upon preferred
stock and warrants purchased thereunder within one business day of entry into
each such agreement or each such closing.
(j) Notices. Any
and all notices or other communications or deliveries required or permitted to
be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of (i) the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number specified in
this Section 9(j) prior to 5:00 p.m. (Los Angeles, California time) on a
business day, (ii) the business day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile number
specified in this Agreement later than 5:00 p.m. (Los Angeles, California time)
on any date and earlier than 11:59 p.m. (Los Angeles, California time) on such
date, (iii) the business day following the date of mailing, if sent by
nationally recognized overnight courier service, or (iv) upon actual receipt by
the party to whom such notice is required to be given. The address
for such notices and communications shall be as follows:
通知。 任何通知应采用书面形式,在以下日期最早者和以下地址送达后生效:(i)
传真送达:在加州时间工作日下午5点前传真到第10(i)条规定的号码;(ii) 如果是在下午5点-晚上11:59分传真到该号码,视为下一个工作日送达;(iii)
隔夜快递:邮寄日后下一个工作日;(iv) 接收方签收。 通知送达地址如下:
To
the Company:
致公司:
|
VLOV,
Inc.
劲都人(国际)服饰有限公司
No
1749-1751 Xiangjiang Road
Shishi
City, Fujian Province
People’s
Republic of China
xxxxxxxxx0000-0000x
To:
吴青青(Wu
Qingqing)
Fax:
x00-000-00000000
|
To
the Purchaser:
致买方:
|
ARC
China Inc.
宏弧商务咨询(上海)有限公司
The
Bank of China Building, 14/F
00
Xxxxxxxxx Xxxx Xx.0 Xxxx
Xxxxxxxx
200002, P.R. China
中国银行大厦14楼
中国上海200021中山东一路23号200002
To: Xxxx
Roseman
Fax: x00-00-00000000
|
or such
other address as may be designated in writing hereafter, in the same manner, by
such party.
或者是协议各方以书面方式指定的其他地址。
[SIGNATURE
PAGE FOLLOWS]
【以下为签字页】
IN
WITNESS WHEREOF, the parties have entered into this Agreement as of the date
first written above.
COMPANY:
劲都人(国际)服饰有限公司
|
|||
|
By:
|
/s/ Wu Qingqing | |
吴青青 Wu Qingqing | |||
Chief Executive Officer | |||
PURCHASER:
ARC China, Inc.
宏弧商务咨询(上海)有限公司
|
|||
|
By:
|
/s/ Xxxx Roseman | |
Xxxx Roseman | |||
Chief Executive Officer | |||
Schedule
I
附件一
This
Schedule I is a part of and is incorporated into that certain Agreement dated as of
September 27, 2009 by and between VLOV, Inc. (the "Company") and ARC
China, Inc. ("Purchaser") This
letter will confirm that the Company agrees to indemnify and hold harmless
Purchaser and its affiliates, the respective directors, officers, attorneys,
finders and other agents, stockholders and employees of Purchaser and its
affiliates and each other person, if any, controlling Purchaser or any of its
affiliates (Purchaser and each such person and entity being referred to as an
"Indemnified
Person"), to the full extent lawful, from and against any losses, claims,
damages, expenses or liabilities or actions (including without limitation
shareholder actions and actions arising from the use of information provided to
Purchaser by the Company or omissions from such materials) related to or arising
out of this engagement or Purchaser's role in connection herewith, and will pay
(or, if paid by an Indemnified Person, reimburse such Indemnified Person) for
all fees and expenses (including, without limitation, counsel fees and charges
for the time of Purchaser professional employees at their then current hourly
rates) incurred by such Indemnified Person in connection with investigating,
preparing or defending any such action or claim, whether or not in connection
with pending or threatened litigation in which any Indemnified Person is a
party.
本附件为劲都人(国际)服饰有限公司(“公司”))与宏弧商务咨询(上海)有限公司(“顾问”)于2009年9月27日签订协议的一部分。本附件确认公司同意为买方和其关联机构、管理人员、律师、代理、股东、雇员,顾问的控制人和关联机构(“受偿人”)等免责,免予承担因此顾问协议而产生的任何损失、索赔、诉讼(包括但不限于股东诉讼,因使用公司提供信息而引起的诉讼)。并支付(如果受偿人先行支付,给予报销)受偿人为了调查、准备、辩护而支付的所有费用(包括但不限于律师费和买方雇员的按时计费)。
The
Company will not, however, be responsible for any claims, liabilities, losses,
damages or expenses which result from any compromise or settlement not approved
by the Company or which are determined by a final judgment of a court of
competent jurisdiction to have resulted solely from the fraud, willful
misconduct or gross negligence of any Indemnified Person. The Company also
agrees that no Indemnified Person shall have any liability to the Company for or
in connection with the Agreement, except for any such liability for losses,
claims, damages, liabilities or expenses incurred by the Company, which are
determined by a final judgment of a court of competent jurisdiction to have
resulted solely from the fraud, willful misconduct or gross negligence of the
Indemnified Person. The foregoing agreement shall be in addition to
any rights that any Indemnified Person may have at common law or otherwise,
including without limitation any right to contribution.
对于未经公司认可的和解,或法院认定由任何受偿人的欺诈、故意或重大过失引起的索赔、责任、损失,公司不负责。公司同意,除了法院认定由受偿人的欺诈、故意或重大过失引起的索赔、责任、损失,受偿人对公司不承担责任。上述协议不限制受偿人依普通法所享有的其他权利。
The
Company's agreement to indemnify Purchaser and other Indemnified Persons
pursuant to this Agreement shall not be disclosed publicly or made available to
third parties by either party hereto without the other party's prior written
consent. If any action or proceeding is brought against any
Indemnified Person in respect of which indemnity may be sought against the
Company pursuant hereto, or if any Indemnified Person receives notice from any
potential litigant of a claim which such person reasonably believes will result
in the commencement of any such action, proceeding, or claim, such Indemnified
Person shall promptly notify the Company in writing of the commencement of such
action or proceeding, or of the existence of any such claim, but the failure so
to notify the Company of any such action or proceeding shall not relieve the
Company from any other obligation or liability which it may have to any
Indemnified Person otherwise than under this Agreement or with respect to any
other action or proceeding. In case any such action or proceeding
shall be brought against any Indemnified Person with respect to which such
Indemnified Person gives notice of its intention to seek indemnification
hereunder, the Company shall be entitled to participate in such action or
proceeding and, to the extent that the Company may determine, to assume the
defense thereof, with counsel of the Company's choice (in which case the Company
shall not thereafter be responsible for the fees and expenses of any separate
counsel retained by such Indemnified Person), or compromise or settle such
action or proceeding, at its expense; provided, however, that such counsel shall
be satisfactory to the Indemnified Person in the exercise of its reasonable
judgment. Notwithstanding the Company's election to assume the
defense of such action or proceeding, such Indemnified Person shall have the
right to employ separate counsel and to participate in the defense of such
action or proceeding, and the Company shall bear the reasonable fees, costs and
expenses of such separate counsel (and shall pay such fees, costs and expenses
at least quarterly), if (a) the use of counsel chosen by the Company to
represent such Indemnified Person would, in the judgment of the Indemnified
Person, present such counsel with a conflict of interest; (b) the
defendants in, or targets of, any such action or proceeding include both an
Indemnified Person and the Company, and such Indemnified Person shall have
reasonably concluded that there may be legal defenses available to it or to
other Indemnified Persons which are different from or additional to those
available to the Company (in which case the Company shall not have the right to
direct the defense of such action or proceeding on behalf of the Indemnified
Person); (c) the Company shall not have employed counsel satisfactory to
such Indemnified Person in the exercise of the Indemnified Person's reasonable
judgment to represent such Indemnified Person within a reasonable time after
notice of the institution of such action or proceeding; or (d) the Company
shall authorize such Indemnified Person to employ separate counsel at the
Company's expense.
非经另一方书面许可,公司同意赔偿买方和其他受偿人的消息不得对外公布或透露给第三方。如果任何受偿人被起诉,以向公司寻求赔偿,或任何受偿人接到诉讼或索赔的通知并由此有理由相信将会被起诉,该受偿人应及时以书面形式通知公司。怠于通知并不会减轻公司按照本协议应当承担的责任。如果受偿人被起诉,且受偿人发出将要求赔偿的通知,公司有权参加诉讼,经受偿人认可,自聘律师(公司不再支付该受偿人的律师费)进行辩护或和解。受偿人有权单独聘请律师,由公司支付合理费用(至少每季度一付),如果(a)受偿人认为使用公司的律师有利益冲突;(b)
公司和受偿人同为被告,受偿人认为与公司的抗辩不同或有更多抗辩(则公司无权代表受偿人进行抗辩),(c)在接到起诉通知后合理时间内,公司未提供受偿人满意的律师;(d)
公司授权受偿人自聘律师,由公司支付费用。
In order
to provide for the just and equitable contribution, if a claim for
indemnification hereunder is found unenforceable in a final judgment by a court
of competent jurisdiction (not subject to further appeal), even though the
express provisions hereof provide for indemnification in such case, then the
Company and Purchaser shall contribute to the losses, claims, damages,
judgments, liability, expenses or costs to which the Indemnified Person may be
subject in accordance with the relative benefits received by, and the relative
fault of, each in connection with the statements, acts or omissions which
resulted in such losses, claims, damages, judgments, liabilities, or
costs. The Company agrees that a pro rata allocation would be
unfair. No person found liable for a fraudulent misrepresentation or
omission shall be entitled to contribution from any person who is not also found
liable for such fraudulent misrepresentation or
omission. Notwithstanding the foregoing, Purchaser shall not be
obligated to contribute any amount hereunder that exceeds the amount of fees
previously received by Purchaser for its services to the Company.
为保证公平公正,如果赔偿诉讼的法院裁决不能执行(不包括上诉),公司和买方应按照所得收益和相应过错来分担受偿人的损失、费用、裁决、责任。公司同意按人分配有失公平。有欺诈或疏漏行为的人无权获得无过错人的责任分担。买方的赔偿义务仅限于其从公司收取的费用。
These
indemnification provisions shall (i) remain operative and in full force and
effect regardless of any termination or completion of the engagement of
Purchaser; (ii) inure to the benefit of any successors, assigns, heirs or
personal representative of any Indemnified Person; and (iii) be in addition
to any other rights that any Indemnified Person may have.
本赔偿条款:(i) 无论协议是否终止,都保持全部效力;(ii)
适用于受偿人的继承人、受让人、代表人;(iii) 不限制受偿人的其他权利。