EXHIBIT 10.125
[LETTERHEAD OF XXXXXXXX XXXXXX & XXXXX APPEARS HERE]
PRIVATE AND CONFIDENTIAL
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November 8, 1996
LaTex Resources, Inc.
0000 Xxxxxx Xxxxx
Xxxxx 0000
Xxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxx, Chairman and CEO
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Gentlemen:
Pursuant to that certain engagement letter dated November 27, 1995 (the
("Agreement"), between Xxxxxxxx Xxxxxx & Xxxxx, Inc., Xxxxxxxx Xxxxxx & Xxxxx
Limited (collectively, "RPC") and LaTex Resources, Inc. (the "Company"), the
undersigned hereby agree to amend the terms of such Agreement as follows:
1. Section 7 of the Agreement is hereby amended by inserting the following
paragraphs at the end of such paragraph:
"The Company shall be entitled to deduct from the fee to be paid under this
Section 7 any amounts paid to Xxxxxxxx Xxxxxx Xxxxx Limited ("RPC Ltd.") in
connection with the rendering by RPC Ltd. of a fairness opinion on the sale
of three subsidiaries of the Company pursuant to that certain engagement
letter dated November 3, 1996, between RPC Ltd. and the Company.
In the event that the proposed Merger with Alliance Resources, Inc. is not
consummated, the Company shall pay RPC a fee equal to forty thousand
dollars ($40,000) and shall reimburse RPC for all out-of-pocket expenses
incurred by RPC, including reasonable legal fees and expenses."
Except as expressly amended hereby, the Agreement and the terms thereof shall
remain in full force and effect. Kindly confirm the Company's acceptance and
agreement to the foregoing amendments by signing and returning one of the
enclosed copies of this Agreement, which will thereupon constitute an agreement
between RPC and the Company.
Page 2
Very truly yours,
XXXXXXXX XXXXXX & XXXXX, INC. and
XXXXXXXX XXXXXX & XXXXX LIMITED
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Managing Director
Accepted and Agreed to this
18th day of November, 1996
By: /s/ [ILLEGIBLE]
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Name:
Title:
SCHEDULE I
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1. The Company agrees to defend, indemnify, and hold RPC and its officers,
directors, agents, affiliates, employees, and controlling officers (each an
"Indemnified Party") harmless from and against any losses, claims, damages
or liabilities (including, without limitation, court costs and reasonable
attorneys' fees) to which any such Indemnified Party may become subject
insofar as the same arises from an action (a)(I) relating to the Option,
(ii) to the Sale of the Subsidiaries or (iii) to the Merger with Alliance
Resources, Inc., (b) which alleges or is based upon any alleged untrue
statement of a material fact, or omission of a material fact by the
Company, or (c) any other violation of applicable securities or other laws,
rules or regulations and to reimburse any such Indemnified Party for any
legal or other expenses reasonably incurred by them in connection with
investigating, settling or defending any action or claim in connection
therewith (including, without limitation, court costs and reasonable
attorneys' fees); provided, however, that the Company shall not be liable
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in any such case to the extent that any such loss, claim, damages or
liability is found in a final judgement of a court of competent
jurisdiction to have resulted from any such Indemnified Party's gross
negligence, willful misconduct or bad faith in performing their services
hereunder. If for any reason the foregoing indemnification is unavailable
to an Indemnified Party, then the Company shall contribute to the amount
paid or payable by that Indemnified Party as a result of such loss, claim,
damage or liability in such proportion as is appropriate to reflect not
only the relative benefits received by the Company on the one hand and the
Indemnified Party on the other hand but also the relative fault of the
Company and that Indemnified Party, as well as any relevant equitable
considerations. The Company agrees to reimburse an Indemnified Party within
ten days after presentation of any statement by that Indemnified Party for
all reasonable expenses (including without limitation of the generality of
the foregoing, fees and expenses of attorneys selected by each Indemnified
Party) incurred in connection with any testimony the Indemnified Party or
its employees are required to give (in court, before a regulatory agency,
by deposition or otherwise) in any regulatory or court proceeding
(including depositions), whether or not the Indemnified Party is a party,
and which related directly or indirectly to the Opinion, the Sale of the
Subsidiaries or the Merger with Alliance Resources, Inc.
2. With respect to the foregoing Paragraph 1 of the indemnification, the
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Company agrees that no Indemnified Party shall be deemed to have been
grossly negligent for reasonably relying upon any written untrue statement
or alleged omission of a material fact necessary to make the statements, in
light of the circumstances in which made, not misleading, contained in or
omitted from any information provided to any Indemnified Party by or on
behalf of the Company or the Subsidiaries (including, without limitation of
the generality of the foregoing, any accountant or attorney employed or
retained by the Company or the Subsidiaries). The indemnification provided
in the foregoing Paragraph 1 hereof shall extend upon the same terms and
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conditions to each person, if any, who may be deemed to control any
Indemnified Party and shall be applicable, to the extent set forth herein,
whether or not negligence of the person entitled to indemnification is
alleged or proven.
3. In the event any action (with respect to which indemnity or reimbursement
from the Company may be sought by any Indemnified Party on account of
agreements contained herein) shall be brought or threatened against an
Indemnified Party, prompt notice will be given to the Company in writing of
such action, together with a copy of all papers served on, or received by,
such Indemnified Party in connection with such action provided that failure
to give such notice shall not affect such Indemnified Party's rights under
these indemnification provisions, unless, and only to the extent that, such
failure results in the Company's forfeiture of substantive rights or
defenses. If such an event occurs the Company shall assume the defense of
such action, including the employment of counsel and the payment of all
expenses. Each Indemnified Party shall have the right to employ separate
counsel in any such action and to participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Party unless (a) the employment thereof has been specifically
authorized by the Company in writing; (b) the Company has failed to assume
the defense and employ counsel; or (c) named parties, or parties threatened
to be named, to any such action (including any impleaded parties or parties
threatened to be impleaded) include both such Indemnified Party and the
Company, and the Indemnified Party has been advised by such counsel that
there may be one or more legal defenses available to them which are
different from or additional to those available to the Company (in which
cases each Indemnified Party shall have the right to employ its own counsel
and in such cases any reasonable fees and expenses of such counsel shall be
paid by the Company). The Company shall not be liable for any settlement of
any such action or proceeding effected without its written consent. If
there shall be a final judgement for the plaintiff in such action or
proceeding, the Company agrees to indemnify and hold harmless the
Indemnified Party from and against any loss or liability by reason of such
settlement or judgement.
