AMENDED AND RESTATED CONSULTING AGREEMENT
AMENDED
AND RESTATED CONSULTING AGREEMENT
This
Amended and Restated Consulting Agreement (this “Agreement”) is made
on April 28,
2008, by and between Baby Fox International, Inc a Nevada corporation
(“Client”), and
Beijing AllStar Business Consulting, Inc. a People’s Republic of China
registered Corporation (“Consultant”). In
consideration of the respective covenants, representations, warranties and
agreements contained in this Agreement and other good and valuable
consideration, the receipt and sufficiency of which the parties hereby
acknowledges, the parties agree as follows:
RECITALS
WHEREAS,
Client and Consultant entered into that certain Consulting Agreement dated May 18, 2007 (the
“Original Consulting
Agreement”);
WHEREAS,
Client and Consultant desire to amend and restate the Original Consulting
Agreement and the Amendment in their entirety as provided below.
NOW
THEREFORE, in consideration of the foregoing premises and the mutual covenants
hereinafter set forth, IT IS AGREED that the Original Consulting Agreement and
the Amendment are hereby amended and restated in their entirety to read as
follows:
ARTICLE
I.
ENGAGEMENT
OF CONSULTANT
Section 1.01 Engagement
of Consultant. Client hereby engages
Consultant to render consulting services to Client on a non-exclusive basis and
on the terms and for the consideration specified herein. As such, Consultant
will familiarize itself to the extent it deems necessary and appropriate with
the business, operations, condition (financial and otherwise) and prospects of
Client and will provide advice on the capital structure of Client, financing
options, types of financial instruments to be offered, and the likely market
segment that the financial instruments are suitable. Specifically,
Consultants will advise Client on the language consulting including translations
from English to Chinese and Chinese to English; directly and indirectly
introduce professional firms and individuals including an U.S. security attorney
firm, an U.S. GAAP auditor, a broker dealer and investment bank; provide advice
on Client’s registration of a Nevada State company. Consultant will also advise
Client, with the help of Client’s security attorney, on its security filing with
U.S. Securities and Exchange Commission (SEC) and when its engaged broker dealer
files its applications with the Financial Industry Regulatory Authority(FINTRA)
to be quoted on Over-the-counter Bulletin Board (OTCBB). Consultant may identify possible
investors interested in providing capital to Client or otherwise participating
in a Transaction (as defined below) pursuant to terms to be negotiated by and
among such possible investors and Client (without the involvement of
Consultant), and, at the option of Consultant, will provide consulting services
with respect to any Transaction. If Consultant, after becoming familiar with
potential transactions of Client, declines to render advice to Client with
respect to a particular Transaction, Consultant shall not enter into any other
engagement with a third party with respect to such Transaction. Client
understands that no particular result is promised or can be guaranteed by
Consultant in rendering the services for any particular matter or with respect
to any Transaction. Consultant undertakes to render the services competently and
with professional skill. Client will provide Consultant with such factual
information and materials as Consultant may require to perform such consulting
services. Client shall determine the scope of the work to be performed, but
after having agreed to perform such services, Consultant shall determine the
means, manner and method of performing these services. For purposes of this
Agreement, a “S-1 Initial
Registration” shall mean
any securities registration of Client (including debt, equity or any derivative
or convertible securities) which Client file with U.S. Securities and Exchange
Commission (SEC). For purposes of this Agreement, a “Capital
Transaction” shall mean
any private placement of any securities of Client (including debt, equity or any
derivative or convertible securities) with investors identified by Consultant
and any other investors who participate in such transaction through the direct
or indirect efforts of Consultant (“Consultant
Identified Investors”).
For purposes of this Agreement, an “M&A
Transaction” shall mean
(a) any acquisition of outstanding capital stock or control of the outstanding
capital stock or all or substantially all of the assets of companies made by
Client by one or more Consultant Identified Investors or (b) any merger,
consolidation, tender or exchange offer, leveraged buyout, acquisition or sale
of substantially all of Client’s assets or equity interests, recapitalization
involving the distribution of cash, securities or property to Client’s equity
holders or similar transactions involving all or a substantial part of the
business, assets or equity interests of Client and/or its affiliates in one or
more transactions. A “Transaction” shall mean any Capital Transaction or
M&A Transaction and any additional matters identified in advance and
mutually agreed to in writing by Consultant and Client.
Section
1.02 Broker
or Dealer; Investment Advisor Status.
(a) Consultant
is not (i) a registered “broker” (“Broker”) or “dealer”
(“Dealer”) as
such terms are defined in Section 3(a)(4) and 3(a)(5) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), or
(ii) an investment adviser (“Investment Advisor”),
as such term is defined in Section 202(a)(11) of the Investment Advisors Act of
1940, as amended, and will not act to effect any transactions in securities for
the account of Client. With respect thereto and notwithstanding anything set
forth herein to the contrary, in connection with any transaction, Consultant
shall not carry out any activity or function that (i) may be traditionally
performed by or otherwise be deemed to include those of (A) a Broker, Dealer or
Investment Adviser or (ii) would require Consultant to register itself as a
Broker, Dealer, or Investment Advisor. In particular, Consultant shall not do,
cause to be done or otherwise participate, directly or indirectly, in any of the
following on behalf of Client: (a) participate in the negotiation of terms and
conditions of the sale and purchase of any securities of Client; (b) assist
Client in the distribution of materials relating to the sale of any securities
of Client; (c) prepare any analysis or provide any advice to any potential
investors regarding the benefits or potential return relating to the purchase of
any securities of Client; (d) directly assist Client or any prospective investor
of securities of Client with the completion of a Transaction; (e) facilitate the
sale, exchange or transfer of securities of Client or any handling of any funds
received from the potential investors for any securities of Client, (f) discuss
the details of a proposed Transaction with a potential investor, or (g) make
recommendations to a potential investor with respect to a
Transaction.
(b) Client
understands and agrees that Client may need to retain a Broker, Dealer or
Investment Advisor to assist Consultant in certain aspects of a Transaction. In
addition, Client understands and agrees that if Client requests Consultant to
undertake services causing Consultant to become or to be deemed a Broker, Dealer
or Investment Advisor, then investors might have a right of rescission or an
action for damages with respect to Transactions in which Consultant is deemed to
be a Broker, Dealer or Investment Advisor.
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ARTICLE
II.
TERM;
TERMINATION
Section
2.01 Term.
The term of this Agreement shall commence on the date hereof and shall continue
until the one (1) year anniversary of the date set forth above (the “Initial Term”). This
Agreement will automatically renew for unlimited consecutive additional one (1)
year periods (the commencement date of each such one (1) year renewal period is
referred to herein as a “Renewal Date”) unless
either party provides written notice of non-renewal to the other party at least
thirty (30) days prior to the expiration of the Initial Term or any renewal
period thereafter as the case may be (the Initial Term and such renewal period,
if any, shall be referred to herein as the “Term”).
Section
2.02 Termination. Upon
termination of this Agreement, except as otherwise provided herein, Client’s
sole responsibility to Consultant shall be to pay Consultant for any unpaid
expenses, fees or other consideration earned pursuant to this
Agreement.
ARTICLE
III.
COMPENSATION;
REIMBURSEMENT
Total compensation is
valued at $547,488, among which approximately 40% shall paid in cash of
$221,000 and the rest 60%, approximately $326,488, shall be paid in common
shares.
Section
3.01 Signing
Fee. Upon execution of the Original Agreement, Client paid Consultant
Ninety Thousand
Dollars ($55,250).
Section
3.02 Additional
Payments.
Within
three business days after Client fill its S-1 Initial Registration with SEC,
Client shall pay Consultant Seventy Five Thousand
Dollars $63,750.
Within
three business days after Client’s S1 Initial Registration filling declared
Effective by SEC, Client shall pay Consultant Seventy Five Thousand
Dollars $59,500.
Within three business day, upon
Client’s shares are declared effective by FINRA to be quoted on Over-the-counter
Bulletin Board (OTCBB), Client shall pay Consultant Fifty Thousand Dollars
$42,500,
Client
shall issues Consultant or its designated personnel or company, a total of 1,632,438
common shares. These
shares are valued at $0.20 per share. 317,000 (approximately 19.42%)
shares should have piggyback registration right.
Section
3.03 Expenses. Consultant
is responsible for all reasonable costs and expenses that are incurred by or on
behalf of Consultant in carrying out its duties or obligations under this
Agreement. For Client’s reimbursement to Consultant, Client has to approve in
advance in writing for approved costs and expenses. These costs and expenses
shall be payable by Client within thirty (30) days of Client’s receipt of such
invoices.
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Section
3.04 Registration
of Securities. If, at any time or from time to time, Client shall
determine to register any of its equity securities, either for its own account
or the account of a stockholder, Client shall promptly (but in no event less
than thirty (30) days prior to registration) give Consultant written notice
thereof; and shall include in such registration (and any related qualifications
including compliance with Blue Sky laws), and in any underwriting involved
therein, all shares of common stock held by Consultant or its designees, as
specified in a written response(s) by Consultant, made within twenty (20) days
after receipt of the written notice of registration from Client. Notwithstanding
any other provision of this Section 3.04, if the registration by Client is for a
registered public offering involving an underwriting and the managing
underwriter determines that marketing factors require a limitation of the number
of shares to be underwritten, the percentage of shares of securities to be
registered for sale by Client and Consultant shall be equally reduced. If the
registration by Client is for a registered public offering involving an
underwriting, Consultant agrees that it shall (a) not effect any public sale or
distribution (including sales pursuant to Rule 144) of equity securities of
Client or any securities convertible into or exchangeable or exercisable for
such securities and (b) provide upon request, customary lock-up agreements for
itself and its affiliates by which they agree not to sell any of their shares of
common stock for a period of 90 days from the effective date of the registration
statement, or for such other length of time determined by the managing
underwriter. In addition to the rights set forth above, Consultant shall be
entitled to request, at any time and in any number of requests, that Client file
a registration statement on Form S-3 (or any successor form to Form S-3) for an
offering of shares of common stock of Client held by Consultant having an
aggregate market value (net of underwriters’ discounts and commissions) of at
least $500,000 and the Client is a registrant entitled to use Form S-3 to
register the shares of common stock for such an offering, Client shall use its
commercially reasonable efforts to cause such shares of common stock to be
registered for the offering on such form and to cause such shares of common
stock to be qualified in such jurisdictions as Consultant may reasonably
request. If such offer is to be an underwritten offering, the underwriter shall
be selected by Consultant.
Section
3.05 No Reduction
Due to Other Advisors. No fee payable to any other advisor either by
Client or any other entity shall reduce or otherwise affect the compensation,
fees, payments or reimbursements payable hereunder to Consultant.
ARTICLE
IV.
WORK
PRODUCT
Consultant
shall promptly and fully disclose to Client in writing all Work Products (as
defined below), and the entire right, title and interest to all such Work
Products (including, without limitation the entire right, title and interest to
any renewals, reissues, extensions, substitutions, continuations, continuations
in part, or divisions that may be filed with respect to the Work Products) shall
be Client’s exclusive property and all Work Products developed by Consultant are
hereby assigned to Client. Consultant will, at Client’s expense, give Client all
assistance reasonably required to perfect, protect, and use the Work Products.
The obligations of Consultant pursuant to this Article IV shall survive for the
one (1) year period immediately following termination of this Agreement. As used
herein, “Work
Product” means any work product, improvement, discovery, design, work or
idea (whether patentable or not and including those which may be subject to
copyright protection, trademark protection or other intellectual property rights
protection) generated, conceived, created or reduced to practice by Consultant
alone or in conjunction with others, during or after working hours, that relates
directly or indirectly to Client’s or its subsidiaries’ businesses or to
Client’s actual research or development.
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ARTICLE
V.
ACCURACY
OF DISCLOSURE
Client
agrees to cooperate with Consultant and will furnish to, or cause to be
furnished to, Consultant all information and data concerning Client (the “Information”) that
Consultant reasonably deems appropriate in connection with the services to
Client as provided herein and will provide Consultant with access to Client’s
officers, directors, employees and advisors. Client represents and warrants that
all Information made available to Consultant by Client with respect to any
Transaction included or incorporated by reference into a related private
placement memorandum or prospectus will be complete and correct in all material
respects as of the date such Information is provided, and as of the closing date
of the related Transaction, and will not be misleading or violate the anti-fraud
provisions of the Exchange Act in any material respect, and that any
projections, forecasts or other Information provided by Client to Consultant
will have been prepared in good faith and will be based upon reasonable
assumptions and projections. Client agrees to promptly notify Consultant if
Client believes that any Information that was previously provided to Consultant
has become materially misleading. Client acknowledges and agrees that in
rendering its services hereunder, Consultant will be using and relying on the
Information (and information available from public sources and other sources
deemed reliable by Consultant) without independent verification thereof or
independent appraisal or evaluation of Client or any party to a Transaction.
Consultant does not assume responsibility for the accuracy or completeness of
the Information. If all or any portion of the business of Client is engaged in
through subsidiaries or other affiliates, the references in this paragraph to
Client will, when appropriate, be deemed also to include all such subsidiaries
or other affiliates.
ARTICLE
VI.
INDEMNIFICATION
Client
agrees to indemnify and hold harmless Consultant and its affiliates and their
respective directors, officers, managers, attorneys, finders, agents,
representatives, advisors, stockholders, members and employees, and each person,
if any, who controls Consultant within the meaning of the Securities Act of
1933, as amended (the “Securities Act”) and
the Exchange Act (collectively, the “Consultant Indemnified
Parties”) in accordance with the provisions for indemnification and
contribution set forth in Attachment “A” hereto, which is incorporated by
reference in and made a part of this Agreement as if fully set forth
herein.
ARTICLE
VII.
PUBLICITY
With the
prior written consent of Client, which shall not be unreasonably withheld,
Consultant shall have the right to place advertisements in mailings and
financial and other newspapers and journals at its own expense describing its
services hereunder to Client relating to any consummated Transaction and using
Client’s logo, slogan, trademark, and/or service xxxx.
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ARTICLE
VIII.
CONFIDENTIALITY;
MATERIAL NONPUBLIC INFORMATION
Section
8.01 Restrictions
on Consultant. Consultant recognizes that its relationship with Client
will give it access to non-public proprietary information, confidential
information and trade secrets. Consequently, during the Term of this Agreement
and for the two (2) year period immediately thereafter, Consultant will not use
or disclose for itself or for others (except persons specifically designated by
Client) any Confidential Information. “Confidential
Information” shall include but not be limited to, any information
concerning Client’s processes, products, services, inventions, purchasing,
accounting, marketing, selling methods and techniques, research and development,
computer programs, purchasing information, ideas and plans for development,
historical financial data and forecasts, long range plans and strategies,
customer lists, Information and any other information related to Client’s
customers, and any such other information concerning the business of Client or
its manner of operation that is not generally known in the industry.
Confidential Information shall not include any information that: (a) is or
subsequently becomes publicly available without Consultant’s breach of this
Agreement; (b) was in the Consultant’s possession at the time of disclosure and
was not acquired from Client; (c) is received from third parties, and is
rightfully in the possession of such third parties and not subject to a
confidentiality obligation of third parties; (d) is required by law to be
disclosed (with prior notice to Client); or (e) is intentionally disclosed
without restriction by Client to a third party.
Section
8.02 Regulation
FD Disclosure. Notwithstanding anything to the contrary contained herein,
Client shall not, and shall cause each of its subsidiaries and each of their
respective officers, directors, employees and agents, not to, provide Consultant
with any material, nonpublic information regarding the Company or any of its
subsidiaries without the express written consent of Consultant. In the event of
a breach of the foregoing covenant by Client, and provided that Client shall
have failed (following proper written request therefor) to make an appropriate
public disclosure consistent with the requirements of Regulation FD, Consultant
shall have the right to make a public disclosure, in the form of a press
release, public advertisement or otherwise, of such material, nonpublic
information without the prior approval by Client. Consultant shall not have any
liability to Client for any such disclosure.
Section
8.03 Restrictions
on Client. Client agrees that any advice or communication, written or
oral, provided by Consultant pursuant to this Agreement will be treated by
Client as confidential, will be solely for the information and assistance of
Client in connection with its consideration of a Transaction and will not be
used, circulated, quoted or otherwise referred to for any other purpose, nor
will it be filed with, included in or referred to, in whole or in part, in any
registration statement, proxy statement or any other communication, whether
written or oral, prepared, issued or transmitted by Client or any affiliate,
director, officer, employee, agent or representative of any thereof, without, in
each instance, Consultant’s prior written consent. Client further agrees that it
will not disclose the identity of Consultant, the existence of this Agreement or
the engagement created hereby or Consultant’s role with respect to any
Transaction without the prior written consent of Consultant, other than as may
be required by applicable law or regulations, including any requirements imposed
under the Securities Act or the Exchange Act; provided, that in the event such
disclosure is required under applicable law or regulation, Client shall notify
Consultant and provide Consultant with an opportunity to review and provide
comments with respect to such proposed disclosure not less than two (2) business
days prior to making such disclosure; provided, further, that if Consultant
fails to respond to Client within two (2) business days of receipt of such
proposed disclosure, Consultant shall be deemed to have consented to such
proposed disclosure and waived its right to review and provided comments with
respect to such disclosure.
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Section
8.04 Third Party
Information. Client recognizes that Consultant has received, and in the
future may receive, from third parties their confidential or proprietary
information subject to a duty on the Consultant’s part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. Consultant agrees at all times during the Term of this Agreement, not
to commingle the Confidential Information with other third parties’ confidential
or proprietary information.
Section
8.05 Surrender of
Material upon Termination of Agreement. Upon termination of this
Agreement, Consultant shall return immediately to Client all Work Products
including, but not limited to, books, records, notes, data and information
relating to Client or its business, and will so certify in writing that it has
done so.
ARTICLE
IX.
CONFLICT
WAIVER
Client
acknowledges that Consultant and its affiliates have and will continue to have
other relationships with parties other than Client pursuant to which Consultant
may acquire information of interest to Client. Consultant shall have no
obligation to disclose such information to Client, or to use such information in
connection with any contemplated Transaction. Client recognizes that Consultant
is being engaged hereunder to provide the consulting services described above
only to Client and is not acting as an agent or a fiduciary of, and shall have
no duties or liability to, the equity holders of Client or any third party in
connection with its engagement hereunder, all of which are hereby expressly
waived. No one other than Client (and such other parties in such capacities, if
any) is authorized to rely upon the engagement of Consultant hereunder or any
statements, advice, opinions or conduct by Consultant.
ARTICLE
X.
MISCELLANEOUS.
Section
10.01 Notices.
Any notices desired, required or permitted to be given hereunder shall be
delivered personally or mailed, certified or registered mail, return receipt
requested, or delivered by overnight courier service, to the following
addresses, or such other addresses as shall be given by notice delivered
hereunder, and shall be deemed to have been given upon delivery, if delivered
personally, three (3) business days after mailing, if mailed, or one (1)
business day after timely delivery to the overnight courier service, if
delivered by overnight courier service:
(a)
If to Consultant:
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Beijing
Allstar Business Consulting, Inc.
Suite
6A02, Xxxxxx Xxxxx
0
Xxxxxxxx Xx.
Xxxxxxx
000000, Xxxxx
Attn: Xx.
Xxxx Xxxxx
(b) If
to Client:
Minhang
District
00
Xxxxxxx Xxxx, Xxxxx 000-X0
Xxxxxxxx,
X.X. Xxxxx
Attn:
Xxxxxxx Xxxxx
or to
such other address as such party may indicate by a written notice delivered to
the other party hereto.
Section
10.02 Attorneys’
Fees. If any party to this Agreement brings an action or proceeding
directly or indirectly based upon this Agreement or the matters contemplated
hereby against another party, the prevailing party shall be entitled to recover,
in addition to any other appropriate amounts, its reasonable costs and expenses
in connection with such action or proceeding, including, but not limited to,
reasonable attorneys’ fees and court costs.
Section
10.03 Governing
Law; Jurisdiction. It is the intention of the parties that this Agreement
shall be subject to and shall be governed by and construed in accordance with
the internal laws of the People’s Republic of China (P.R.China) without
reference to its choice of law provisions. All actions and proceedings arising
out of or relating to this Agreement shall be heard and determined exclusively
in Beijing, P.R. China court sitting in Beijing, P.R. China -. The parties
hereto hereby (a) submit to the exclusive jurisdiction of any such court for the
purpose of any claim, action, suit, proceeding, arbitration, mediation or
investigation (an “Action”) arising out
of or relating to this Agreement brought by any party hereto, and (b)
irrevocably waive, and agree not to assert by way of motion, defense, or
otherwise, in any such Action, any claim that it is not subject personally to
the jurisdiction of the above-named courts, that its property is exempt or
immune from attachment or execution, that the Action is brought in an
inconvenient forum, that the venue of the Action is improper, or that this
Agreement or the transactions contemplated hereby may not be enforced in or by
any of the above-named courts.
Section
10.04 Entire
Agreement. 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 with
respect to the subject matter contemplated herein.
Section
10.05 Amendment;
Waiver. This Agreement may not be amended or modified except by a writing
executed by both of the parties hereto. The waiver by any party hereto of any
breach of any provision hereunder shall not operate or be construed as a waiver
of any prior or subsequent breach of the same or any other provision
hereunder.
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Section
10.06 Assignability.
Neither party to this Agreement may assign its rights and obligations under this
Agreement without the prior written consent of the other party.
Section
10.07 Binding
Effect. This Agreement and any amendment thereto, shall be binding upon
and shall inure to the benefit of the successors and assignees of the parties
hereto.
Section
10.08 Relationship. Nothing
in this Agreement shall be interpreted to provide that Consultant and Client are
partners, joint ventures, agents or assignees of the other. Consultant is and
shall remain an independent contractor providing services to Client, and is not
an employee or agent of Client, and neither party shall be entitled to bind the
other party in any way.
Section
10.09 Headings.
The section headings herein are intended for reference and shall not by
themselves determine the construction or interpretation of this
Agreement.
Section
10.10 Severability. Should
a court or other body of competent jurisdiction determine that any provision in
this Agreement is invalid or unenforceable, the remaining provisions in this
Agreement nevertheless shall be deemed valid and enforceable, and continue in
full force and effect without being impaired or invalidated in any
way.
Section
10.11 Further
Assurances. The parties shall execute, acknowledge and deliver any
further documents, instruments, or other assurances and shall take any other
action consistent with the terms of this Agreement that may be reasonably
requested by any other party or its counsel for the purpose of confirming or
effectuating any of the actions contemplated by this Agreement.
Section
10.12 Remedies
Cumulative. Any termination of this Agreement shall be without prejudice
to any right or remedy to which a party may be entitled either by law, or in
equity, or under this Agreement.
Section
10.13 Survival.
Notwithstanding any termination of this Agreement, Section 2.02 and Articles
III, IV, VI, VIII and this Article X shall survive and remain in full force and
effect.
Section
10.14 Counterparts. This
Agreement may be executed in one or more counterparts, all of which taken
together shall constitute one and the same Agreement.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
first set forth above.
| BEIJING ALLSTAR BUSINESS CONSULTING, INC. | |||
|
By:
|
|||
| Name: Xxxx Xxxxx | |||
| Title: President | |||
Attachment
“A”
Indemnification and
Contribution
Client
shall indemnify and hold harmless Consultant and each of its controlling
persons, subsidiaries, affiliates, directors, officers, and employees (“Indemnified
Persons”), from and against all losses, claims, damages and liabilities,
and all suits, actions, claims, proceedings and investigations in respect
thereof, relating to or arising out of the activities contemplated by
Consultant’s engagement described in the Consulting Agreement to which this
Attachment “A” is attached. The foregoing shall include the reasonable expenses
incurred by Consultant and Indemnified Persons in appearing as witnesses or
being deposed, producing documents or otherwise being involved in any suits,
actions, proceedings or investigations. Client shall reimburse Consultant and
each Indemnified Person for all reasonable expenses, including attorneys’ fees
and disbursements, as they are incurred in connection with investigating,
preparing for or defending any suit, action, proceeding or investigation,
whether or not Consultant or such Indemnified Person shall be a party thereto,
whether or not the same shall involve or result in any liability on the part of
Consultant or such Indemnified Person; provided that Client shall advance such
expenses only upon receipt of an undertaking by Consultant or such person to
repay such advances if it shall ultimately be determined that Consultant or such
person was not entitled to be indemnified. Notwithstanding the forgoing, Client
shall not, however, be obligated to indemnify Consultant or any Indemnified
Person in respect of any loss, claim, damage, liability or expense to the extent
the same is found by a final judgment of a court of competent jurisdiction to
have resulted from gross negligence, willful misconduct or bad faith on the part
of Consultant or such Indemnified Person. Consultant shall have no liability to
Client for any loss, claim, damage, liability or expense related to or arising
out of the activities contemplated by Consultant’s engagement, except to the
extent such loss, claim, damage, liability or expense is found by a final
judgment of a court of competent jurisdiction to have resulted from gross
negligence, willful misconduct or bad faith on the part of
Consultant.
If
any suit, action, claim, proceeding or investigation is instituted against
Consultant or any Indemnified Person aforesaid in respect of which
indemnification may be sought hereunder, Consultant or such person shall
promptly notify Client thereof in writing, but the omission so to notify Client
shall not relieve Client from any liability except to the extent Client shall
have been materially prejudiced by such omission. Neither Consultant nor any
Indemnified Person shall be required to provide notice to Client with respect to
any suit, action or proceeding in which Client is named a defendant. Client
shall be entitled to assume the defense of any suit, action or proceeding with
counsel reasonably satisfactory to Consultant; provided, however, that if the
defendants in any such suit, action or proceeding include both Consultant or an
Indemnified Person and Client or another indemnified person, and counsel for
Consultant or such Indemnified Person shall have advised in writing that a
conflict or potential conflict exists between Consultant or such Indemnified
Person and Client or another indemnified person, or that there may be one or
more legal defenses available to Consultant or an Indemnified Person that are
different from or additional to those available to Client or another indemnified
person, then Client shall not have the right to assume the defense of such suit,
action or proceeding on behalf of Consultant or such Indemnified Person, and
Consultant and such Indemnified Person shall have the right to select separate
counsel to defend such suit, action or proceeding on its behalf, with costs to
be borne by Client. Subject to the foregoing, Client shall not be liable for the
expenses of more than one separate counsel (in addition to local counsel) for
Consultant and all Indemnified Persons similarly situated in any one suit,
action or proceeding or substantially similar suits, actions or proceedings in
the same jurisdiction arising out of the same general allegations or
circumstances. Client shall not be liable for the settlement of any suit,
action, claim or proceeding by Consultant or any Indemnified Person without
Client’s prior written consent. Client agrees that it shall not settle any suit,
action, claim or proceeding relating to or arising out of the activities
contemplated by Consultant’s engagement, unless such settlement includes a
provision unconditionally releasing Consultant and each Indemnified Person from
all liabilities in respect of the matters which are the subject of such suit,
action claim or proceeding. The provisions hereof are in addition to all other
existing rights to indemnification on the part of Consultant and each
Indemnified Person aforesaid, and shall survive any termination of Consultant’s
engagement hereunder.
A-1
In order
to provide for just and equitable contribution, if a claim for indemnification
hereunder is made, but it is found in a final judgment of a court of competent
jurisdiction that such indemnification may not be enforced in such case, even
though the express provisions hereof provide for indemnification in such case,
then Client, on the one hand, and Consultant, on the other hand, shall
contribute to the amounts paid, payable or suffered in respect of the losses,
claims, damages, liabilities or expenses for which indemnification is
unavailable or insufficient (i) in such proportion as appropriately reflects the
relative benefits to Client, on the one hand, and Consultant, on the other hand,
from the transaction contemplated by Consultant’s engagement hereunder, or (ii)
if the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as appropriately reflects not only the relative benefits
referred to in clause (i), but also the relative faults of Client, on the one
hand, and Consultant, on the other hand, in connection with the statements, acts
or omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. It is agreed
that it would not be just or equitable if the contribution provided for herein
were determined by pro rata allocation or any other method which does not take
into account the foregoing. The relative benefits to Client and Consultant shall
be deemed to be in the proportion which (A) the total amount to be paid by
Client from the transaction contempla style="PAGE-BREAK-AFTER: alwaysted by Consultant’s engagement (whether or
not consummated), bears to (B) the fees actually received by Consultant for its
engagement (excluding any amounts received in reimbursement of expenses). In no
event shall Consultant’s share of any liability be in excess of the fees
actually received by Consultant for its engagement (excluding any amounts
received in reimbursement of expenses).
A-2
