Knight Capital Markets LLC letterhead)
Exhibit
10.15
(Knight
Capital Markets LLC letterhead)
May
23,
2007
Xx.
Xxxx
Xx
Perfectenergy
International Limited
000
Xxxxxxx Xxxx, Xxxxxxxxx Xxxx
Minhang
District, Shanghai 201100
PRC
Dear
Xx.
Xx:
Re:
Indemnification
Gentlemen:
This
Agreement will confirm that Perfectenergy (Shanghai) Limited has engaged
Knight
Capital Markets, LLC and Canaccord Xxxxx Inc. to advise and assist it in
connection with the matters referred to in the letter agreement dated May
23,
2007, (the “Engagement
Letter”).
In
consideration of the covenant and obligations set forth in the Engagement
Letter, the Company agrees to indemnify and hold harmless the Placement Agents,
their affiliates, and each of their respective partners, directors, managers,
officers and agents, consultants, employees advisors, representatives and
controlling persons (each an “Indemnified
Person”)
from
and against any claims, losses, damages, expenses or liabilities (collectively,
“Losses”)
including, without limitation, legal fees incurred in connection with
investigating preparing, defending, paying, settling or compromising any
action,
claim, or proceeding to which any Indemnified Person may become subject and
which is related to or arises out of the engagement set forth in the Engagement
Letter or the transactions contemplated thereby. The Company will not, however,
be responsible to an Indemnified Person with respect to any such Losses to
the
extent that a court of competent jurisdiction shall have determined by a
final
judgment not subject to further appeal that such Losses resulted from actions
taken or omitted to be taken by such Indemnified Person or due to such
Indemnified Person’s gross negligence, bad faith, or willful
misconduct.
The
Company will reimburse each Indemnified Person for such Losses as such Losses
are incurred or paid, notwithstanding the absence of judicial determination
as
to the propriety or enforceability of the Company’s obligation to reimburse such
Indemnified Person for such Losses and the possibility that such payments
might
not later be held by a court of competent jurisdiction to have been improper.
To
the extent that any such reimbursement is so held to have been improper,
the
Indemnified Person promptly shall return it to the Company, together with
interest, compounded annually, equal to the prevailing prime rate as published
from time to time by The Wall Street Journal.
If
the
indemnification provided for herein should be, for any reason whatsoever,
unenforceable, unavailable or otherwise insufficient to hold each Indemnified
Person harmless, the Company shall pay to or on behalf of each Indemnified
Person contributions for such Losses so that the Indemnified Person ultimately
bears only a portion of such Losses as is appropriate (i) to reflect the
relative benefits received by such Indemnified Person on the one hand and
the
Company on the other hand in connection with the engagement set forth in
the
Engagement Letter and any transactions contemplated thereby, or (ii) if the
allocation on the basis set forth in the immediately preceding clause (i)
is not
permitted by applicable law, to reflect not only the relative benefits referred
to in such clause (i) but also the relative fault of the Indemnified Person
and
the Company as well as any other relevant equitable considerations; provided,
however, in no event shall the aggregate contribution of all Indemnified
Persons
to all such Losses exceed the amount of the fees actually received by the
Placement Agents pursuant to the Engagement Letter. The respective relative
benefits received by all Indemnified Persons and the Company shall be deemed
to
be in the same proportion as the aggregate fee paid to the Placement Agents
pursuant to the Engagement Letter bears to the total consideration paid or
contemplated to be paid to, or received by, the Company or its stockholders,
as
the case may be, in connection with transactions contemplated by the Engagement
Letter, whether or not such transactions are consummated. The relative fault
of
each Indemnified Person and the Company shall be determined by reference
to,
among other things, whether the actions or failures to act were by such
Indemnified Person or the Company, and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such action or
failure to act. Notwithstanding the foregoing, no Indemnified Person shall
have
any obligation to investigate or verify the information provided to the
Placement Agents in connection with the provision of services under the
Engagement Letter, and the Company shall be solely liable for any Losses
related
to or arising out of the use of such information that is inaccurate for any
reason.
The
Company also agrees that no Indemnified Person shall have any liability to
the
Company or its affiliates, directors, officers, employees, agents, consultants,
advisors, representatives, control persons or stockholders, directly or
indirectly, related to or arising out of the Engagement Letter or any
transactions contemplated thereby, in connection with claims by third parties,
except for Losses incurred by the Company to the extent a court of competent
jurisdiction shall have determined by a final judgment not subject to further
appeal that such Losses resulted from such Indemnified Person’s gross
negligence, bad faith, or willful misconduct. In no event, regardless of
the
legal theory advanced, shall any Indemnified Person be liable for any
consequential, indirect, incidental or special damages of any
nature.
In
case
any proceeding shall be instituted involving any Indemnified Person, such
Indemnified Person promptly shall notify the Company in writing. The failure
of
an Indemnified Person to provide such prompt notice shall not reduce such
Indemnified Person’s right to indemnification or contribution hereunder to the
extent that such failure does not materially prejudice the ability to defend
such proceeding. The Company shall retain counsel reasonably satisfactory
to the
Placement Agents to represent the Indemnified Persons and any others the
Company
may designate in such proceeding, shall have sole control of the defense
of any
such proceeding and shall pay the fees and disbursements of such counsel
related
to such proceeding. In any such proceeding, any Indemnified Person shall
have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person, except to the extent
that
(i) the Company and the Indemnified Person shall have mutually agreed to
the
retention of such counsel at the Company’s expense or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the Company
or any others the Company may designate and one or more Indemnified Persons,
and
representation of the Indemnified Persons and such other parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. In any case in which one or more Indemnified Persons are entitled
to separate counsel due to such actual or potential differing interests,
the
Company shall not be liable for the expenses of more than one separate counsel,
and such counsel shall be designated in writing by the Placement Agents.
The
Company shall have sole control of any settlement of any proceeding for which
it
is obligated to provide indemnification hereunder. Notwithstanding the foregoing
the Company shall not, without the prior written consent of the Indemnified
Person, effect any settlement of, or consent to the entry of any judgment
in
connection with, any pending or threatened proceeding in respect of which
such
Indemnified Person is or could have been a party and indemnity or contribution
could have been sought hereunder by such Indemnified Person, unless such
settlement or judgment includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of the
proceeding.
ii
The
obligations of the Company referred to above shall be in addition to any
rights
that any Indemnified Person may otherwise have and shall inure to the benefit
of
and be binding upon any successors, assigns, heirs, and personal representatives
of any Indemnified Person or the Company.
| Very truly yours, | |||
| Perfectenergy International Limited | |||
| By: | /s/ Xxxxxx Xx | ||
| Name: | Xxxxxx Xx | ||
| Title: | CEO | ||
| KNIGHT CAPITAL MARKETS, LLC | ||
| By: | /s/ Xxxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxx | |
| Title: | Managing Director, Investment Banking | |
| CANACCORD XXXXX INC. | ||
| By: | ||
| Name: | Xxxxxxx X. Xxxxxx | |
| Title: | Managing Director | |
iii
