CONSULTING AGREEMENT
Exhibit
10.5
This
Consulting Agreement (this “Agreement”)
is
made on August 29th,
2006,
by and between WinWin Gaming, Inc., a Delaware corporation (“Client”),
and
Calico Capital Management, LLC, a Delaware limited liability company
(“Consultant”).
1. 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 the Client and will provide advice on the capital structure
of
the Client, financing options, types of financial instruments to be offered,
and
the likely market segment which the financial instruments are suitable. The
Consultant may identify possible investors interested in providing capital
to
the Client or otherwise participating in a Transaction (as defined below)
pursuant to terms to be negotiated by and among such possible investors and
the
Client (without the involvement of the Consultant), and, at the option of
Consultant, will provide consulting services with respect to any Transaction.
If
the Consultant, after becoming familiar with potential transactions of the
Client, declines to render advice to the 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 “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 (i) 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 the Client by one or more Consultant Identified Investors or (ii)
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 a M&A Transaction and any additional matters
identified in advance and mutually agreed to in writing by Consultant and
Client.
Consultant
is not a registered “broker” or “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”) 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 will not engage in any of
the
following activities: (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, and (g)
make
recommendations to a potential investor with respect to a Transaction.
Client
understands and agrees that Consultant may retain a broker/dealer 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”, then investors might
have a right of rescission or an action for damages with respect to Transactions
in which the Consultant is deemed to be a broker-dealer.
2. Term;
Termination.
2.1. Term.
The
term of this Agreement shall commence on the date hereof and shall continue
until the twelve month anniversary of the date set forth above (the
“Initial
Term”).
This
Agreement will automatically renew for unlimited consecutive additional three
(3) month periods 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”).
2.2. 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
fees
or other consideration earned pursuant to this Agreement.
3. Compensation;
Reimbursement.
3.1. Signing
Fee.
Within
ten (10) business days of executing this Agreement, Client shall issue to
Consultant 1.0 million shares of its common stock. The Consultant shall have
the
right to allocate this ownership stake as it finds necessary in the course
of
providing services for Client.
3.2. Additional
Payments.
To the
extent that the Consultant successfully assists in the closing of a Transaction,
an additional payment, either in cash or in additional shares of common stock
or
common stock warrants, will become due to the Consultant (the “Milestone
Payment”). It is understood that the Client and Consultant will create a
separate arrangement to this Agreement, mutually agreed upon in good faith,
to
govern the size and form of the Milestone Payment.
3.3. 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, as specified in a written response(s) by Consultant, made
within
20 days after receipt of the written notice of registration from Client.
Notwithstanding any other provision of this Section 3.5, 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 (i) 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 (ii) 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 180 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.
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3.4. No
Reduction Due to Other Advisors.
No fee
payable to any other financial advisor either by Client or any other entity
shall reduce or otherwise affect the compensation, fees, payments or
reimbursements payable hereunder to Consultant.
4. 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 Section
4
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.
5. Representations
and Warranties of Client.
Client
agrees to cooperate with Consultant and will furnish to, or cause to be
furnished to, Consultant all information and data concerning the Client (the
“Information”)
which
Consultant reasonably deems appropriate in connection with the services to
the
Client as provided herein and will provide Consultant with access to the
Client’s officers, directors, employees and advisors. The Client represents and
warrants that all Information made available to Consultant by the 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 the Client to
Consultant will have been prepared in good faith and will be based upon
reasonable assumptions and projections. The Client agrees to promptly notify
Consultant if the Client believes that any Information which was previously
provided to Consultant has become materially misleading. The 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 the 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 the Client is engaged in through subsidiaries or other affiliates,
the references in this paragraph to the Client will, when appropriate, be
deemed
also to include all such subsidiaries or other affiliates.
6. Indemnification.
Client
agrees to indemnify and hold harmless the 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.
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7. Advertisements.
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.
8. Confidentiality.
8.1. 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 which is not
generally known in the industry. Confidential Information shall not include
any
information that: (i) is or subsequently becomes publicly available without
Consultant’s breach of this Agreement; (ii) was in the Consultant’s possession
at the time of disclosure and was not acquired from Client; (iii) 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; (iv) is
required by law to be disclosed (with prior notice to Client); or (v) is
intentionally disclosed without restriction by Client to a third
party.
8.2. 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.
8.3. 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.
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9. 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.
10. Conflicts.
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.
11. Miscellaneous.
11.1. 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:
If
to
Consultant:
Calico
Capital Management, LLC
000
0xx
Xxxxxx,
00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Facsimile:
(000) 000.0000
Attn:
Xxxxxxx X. Xxxxxxx
With
a
copy to
Xxxx
Xxxxx LLP
000
Xxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Facsimile:
(000) 000.0000
Attn:
Xxxxxxx X. Xxxxxx, Esq.
If
to
Client:
WinWin
Gaming, Inc.
0000
Xxxx
Xxxxxx Xxxxxx
Xxxxx
000
Xxx
Xxxxx, XX 00000
Facsimile:
(000) 000.0000
Attn:
Xxx
Xxxxxx
5
or
to
such other address as such party may indicate by a written notice delivered
to
the other party hereto.
11.2. 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.
11.3. 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
State
of New York 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 any New
York
state
or
federal
court sitting in New
York,
New
York
(Borough of Manhattan).
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.
11.4. 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.
11.5. 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.
11.6. Assignability.
Neither
party to this Agreement may assign its rights and obligations under this
Agreement without the prior written consent of the other party.
11.7. 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.
11.8. Relationship.
Nothing
in this Agreement shall be interpreted to provide that Consultant and Client
are
partners, joint venturers, 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.
11.9. Headings.
The
section headings herein are intended for reference and shall not by themselves
determine the construction or interpretation of this Agreement.
11.10. 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.
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11.11. 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.
11.12. 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.
11.13. Survival.
Notwithstanding
any termination of this Agreement, Sections 2.2, 3, 4, 6, 8, 9 and this Section
11 shall survive and remain in full force and effect.
11.14. 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.
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Consultant
CALICO
CAPITAL MANAGEMENT, LLC
/s/
Xxxxxxx X.
Xxxxxxx
By: Xxxxxxx
X. Xxxxxxx
Its: Chief
Executive Officer and President
|
|
|
Client
WINWIN
GAMING, INC.
/s/
Xxxxxxx
Xxxxxx
By: Xxxxxxx
Xxxxxx
Its:
Chief Executive Officer and President
|
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Attachment
“A”
Indemnification
and Contribution
The
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. The 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 the 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, the
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 the 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 the Client thereof in writing, but the omission so to notify
the
Client shall not relieve the Client from any liability except to the extent
the
Client shall have been materially prejudiced by such omission. Neither
Consultant nor any Indemnified Person shall be required to provide notice
to the
Client with respect to any suit, action or proceeding in which the Client
is
named a defendant. The
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 the 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 the Client or another indemnified person, or that there may be
one or
more legal defenses available to Consultant or an Indemnified Person which
are
different from or additional to those available to the Client or another
indemnified person, then the 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, the
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.
The
Client shall not be liable for the settlement of any suit, action, claim
or
proceeding by Consultant or any Indemnified Person without the Client’s prior
written consent. The 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.
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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 the 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 the 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 the 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 the Client and Consultant
shall be deemed to be in the proportion which (A) the total amount to be
paid by
the Client from the transaction contemplated 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).
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