CONFIDENTIAL
March 1,
2010
CONFIDENTIAL
Xxxx X.
Xxxxxxxxx
Chief
Executive Officer
ZBB
Energy Corporation
N93
W14475 Xxxxxxxxx Way
Menomonee
Falls, WI 53051
This
letter (the “Agreement”)
constitutes the agreement between Xxxxxx Securities Incorporated (“Xxxxxx Securities” or
the “Placement
Agent”) and ZBB Energy Corporation, a Wisconsin corporation (the “Company”), that
Xxxxxx Securities shall serve as the exclusive placement agent for the Company,
on a “reasonable best efforts” basis, in connection with the proposed placement
(the “Placement”) of
registered securities (the “Securities”) of the
Company, including shares (the “Shares”) of the
Company’s common stock (the “Common Stock”), and
warrants (the “Warrants”) to
purchase shares of Common Stock and debt. The Company’s Common Stock is traded
on the NYSE AMEX, (ZBB). The terms of such Placement and the
Securities shall be mutually agreed upon by the Company and the purchasers
(each, a “Purchaser” and
collectively, the “Purchasers”) and
nothing herein constitutes that Xxxxxx Securities would have the power or
authority to bind the Company or any Purchaser or an obligation for the Company
to issue any Securities or complete the Placement. This Agreement and the
documents executed and delivered by the Company and the Purchasers in connection
with the Placement shall be collectively referred to herein as the “Transaction Documents.” The
date of the closing of the Placement shall be referred to herein as the “Closing
Date.” The Company expressly acknowledges and agrees that
Xxxxxx Securities’ obligations hereunder are on a reasonable best efforts basis
only and that the execution of this Agreement does not constitute a commitment
by Xxxxxx Securities to purchase the Securities and does not ensure the
successful placement of the Securities or any portion thereof or the success of
Xxxxxx Securities with respect to securing any other financing on behalf of the
Company.
SECTION
1. COMPENSATION AND OTHER
FEES.
As
compensation for the services provided by Xxxxxx Securities hereunder, the
Company agrees to pay to Xxxxxx Securities:
(A) The
fee set forth below with respect to the Placement:
1.
A cash
fee payable immediately upon the closing of the Placement and equal to 7% of the
aggregate
gross proceeds raised in the Placement.
(B) The
Company also agrees to reimburse Xxxxxx Securities’ expenses (with supporting
invoices/receipts) up to a maximum of 1% of the aggregate gross proceeds raised
in the placement, but in no event more than $15,000. Such reimbursement shall be
payable immediately upon (but only in the event of) the closing of the
Placement.
SECTION
2. REGISTRATION
STATEMENT.
The
Company represents and warrants to and agrees with the Placement Agent
that:
(A) The
Company has filed with the Securities and Exchange Commission (the “Commission”)
a registration statement on Form S-3 (Registration File No. 333-156941) under
the Securities Act of 1933, as amended (the “Securities Act”), which became
effective on (March 1, 2009), for the registration under the Securities Act of
the Shares. At the time of such filing, the Company met the requirements of Form
S-3 under the Securities Act. Such registration statement meets the
requirements set forth in Rule 415(a)(1)(x) under the Securities Act and
complies with said Rule. The Company will file with the Commission pursuant to
Rule 424(b) under the Securities Act, and the rules and regulations (the “Rules
and Regulations”) of the Commission promulgated thereunder, a supplement to the
form of prospectus included in such registration statement relating to the
placement of the Shares and the plan of distribution thereof and has advised the
Placement Agent of all further information (financial and other) with respect to
the Company required to be set forth therein. Such registration statement,
including the exhibits thereto, as amended at the date of this Agreement, is
hereinafter called the “Registration Statement”; such prospectus in the form in
which it appears in the Registration Statement is hereinafter called the “Base
Prospectus”; and the supplemented form of prospectus, in the form in which it
will be filed with the Commission pursuant to Rule 424(b) (including the Base
Prospectus as so supplemented) is hereinafter called the “Prospectus
Supplement.” Any reference in this Agreement to the Registration Statement, the
Base Prospectus or the Prospectus Supplement shall be deemed to refer to and
include the documents incorporated by reference therein (the “Incorporated
Documents”) pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), on or before
the date of this Agreement, or the issue date of the Base Prospectus or the
Prospectus Supplement, as the case may be; and any reference in this Agreement
to the terms “amend,” “amendment” or “supplement” with respect to the
Registration Statement, the Base Prospectus or the Prospectus Supplement shall
be deemed to refer to and include the filing of any document under the Exchange
Act after the date of this Agreement, or the issue date of the Base Prospectus
or the Prospectus Supplement, as the case may be, deemed to be incorporated
therein by reference. All references in this Agreement to financial statements
and schedules and other information which is “contained,” “included,”
“described,” “referenced,” “set forth” or “stated” in the Registration
Statement, the Base Prospectus or the Prospectus Supplement (and all other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is or is deemed
to be incorporated by reference in the Registration Statement, the Base
Prospectus or the Prospectus Supplement, as the case may be. No stop
order suspending the effectiveness of the Registration Statement or the use of
the Base Prospectus or the Prospectus Supplement has been issued, and no
proceeding for any such purpose is pending or has been initiated or, to the
Company's knowledge, is threatened by the Commission. For purposes of this
Agreement, “free writing prospectus” has the meaning set forth in Rule 405 under
the Securities Act and the “Time of Sale Prospectus” means the preliminary
prospectus, if any, together with the free writing prospectuses, if any, used in
connection with the Placement, including any documents incorporated by reference
therein.
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(B) The
Registration Statement (and any further documents to be filed with the
Commission) contains all exhibits and schedules as required by the Securities
Act. Each of the Registration Statement and any post-effective amendment
thereto, at the time it became effective, complied in all material respects with
the Securities Act and the Exchange Act and the applicable Rules and Regulations
and did not and, as amended or supplemented, if applicable, will not, contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. The Base Prospectus, the Time of Sale Prospectus, if any, and the
Prospectus Supplement, each as of its respective date, comply in all material
respects with the Securities Act and the Exchange Act and the applicable Rules
and Regulations. Each of the Base Prospectus, the Time of Sale Prospectus, if
any, and the Prospectus Supplement, as amended or supplemented, did not and will
not contain as of the date thereof any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading. The
Incorporated Documents, when they were filed with the Commission, conformed in
all material respects to the requirements of the Exchange Act and the applicable
Rules and Regulations, and none of such documents, when they were filed with the
Commission, contained any untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein (with respect to
Incorporated Documents incorporated by reference in the Base Prospectus or
Prospectus Supplement), in light of the circumstances under which they were made
not misleading; and any further documents so filed and incorporated by reference
in the Base Prospectus, the Time of Sale Prospectus, if any, or Prospectus
Supplement, when such documents are filed with the Commission, will conform in
all material respects to the requirements of the Exchange Act and the applicable
Rules and Regulations, as applicable, and will not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. No post-effective amendment to the Registration Statement
reflecting any facts or events arising after the date thereof which represent,
individually or in the aggregate, a fundamental change in the information set
forth therein is required to be filed with the Commission. There are
no documents required to be filed with the Commission in connection with the
transaction contemplated hereby that (x) have not been filed as required
pursuant to the Securities Act or (y) will not be filed within the requisite
time period. There are no contracts or other documents required to be described
in the Base Prospectus, the Time of Sale Prospectus, if any, or Prospectus
Supplement, or to be filed as exhibits or schedules to the Registration
Statement, which have not been described or filed as required.
(C) The
Company will not prepare, use or refer to, any free writing prospectus without
providing prior notice and a copy to the Placement Agent.
(D) The
Company has delivered, or will as promptly as practicable deliver, to the
Placement Agent complete conformed copies of the Registration Statement and of
each consent and certificate of experts, as applicable, filed as a part thereof,
and conformed copies of the Registration Statement (without exhibits), the Base
Prospectus, the Time of Sale Prospectus, if any, and the Prospectus Supplement,
as amended or supplemented, in such quantities and at such places as the
Placement Agent reasonably requests. Neither the Company nor any of
its directors and officers has distributed and none of them will distribute,
prior to the Closing Date, any offering material in connection with the offering
and sale of the Shares other than the Base Prospectus, the Time of Sale
Prospectus, if any, the Prospectus Supplement, the Registration Statement,
copies of the documents incorporated by reference therein and any other
materials permitted by the Securities Act.
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SECTION
3. REPRESENTATIONS AND
WARRANTIES. The Company hereby makes the same representations and
warranties to the Placement Agent that it makes to the investors in their
respective purchase agreements, as if made directly to the Placement Agent, and
further represents to the Placement Agent that there are no affiliations with
any FINRA member firm among the Company’s officers, directors or, to the
knowledge of the Company, any five percent (5%) or greater stockholder of the
Company, except as set forth in the Base Prospectus.
SECTION
4. INDEMNIFICATION. The
Company agrees to the indemnification and other agreements set forth in the
Indemnification Provisions (the “Indemnification”)
attached hereto as Addendum A, the provisions of which are incorporated herein
by reference and shall survive the termination or expiration of this
Agreement.
SECTION
5. ENGAGEMENT
TERM. Xxxxxx Securities’ engagement hereunder will be for the
period of 90 days. The engagement may be terminated by either the Company or
Xxxxxx Securities at any time upon 10 days’ written notice. Notwithstanding
anything to the contrary contained herein, the provisions concerning
confidentiality, indemnification, contribution contained herein and the
Company’s obligations contained in the Indemnification Provisions, and the
Company’s obligations to pay fees actually earned and reimburse expenses
actually incurred pursuant to this Agreement will survive any expiration or
termination of this Agreement. Xxxxxx Securities agrees not to use
any confidential information concerning the Company provided to them by the
Company for any purposes other than those contemplated under this
Agreement.
SECTION
6. XXXXXX SECURITIES
INFORMATION. The Company agrees that any information or advice
rendered by Xxxxxx Securities in connection with this engagement is for the
confidential use of the Company only in their evaluation of the Placement and,
except as otherwise required by law, the Company will not disclose or otherwise
refer to the advice or information in any manner without Xxxxxx Securities’
prior written consent.
SECTION
7. NO FIDUCIARY
RELATIONSHIP. This Agreement does not create, and shall not be
construed as creating rights enforceable by any person or entity not a party
hereto, except those entitled hereto by virtue of the Indemnification Provisions
hereof. The Company acknowledges and agrees that Xxxxxx Securities is
not and shall not be construed as a fiduciary of the Company and shall have no
duties or liabilities to the equity holders or the creditors of the Company or
any other person by virtue of this Agreement or the retention of Xxxxxx
Securities hereunder, all of which are hereby expressly waived.
SECTION
8. CLOSING. The
obligations of the Placement Agent and the closing of the sale of the Securities
hereunder are subject to the accuracy, when made and on the Closing Date, of the
representations and warranties on the part of the Company and its Subsidiaries
contained herein, to the accuracy of the statements of the Company and its
Subsidiaries made in any certificates pursuant to the provisions hereof, to the
performance by the Company and its Subsidiaries of their obligations hereunder,
and to each of the following additional terms and
conditions:
(A) No
stop order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been initiated or
threatened by the Commission, and any request for additional information on the
part of the Commission (to be included in the Registration Statement, the Base
Prospectus or the Prospectus Supplement or otherwise) shall have been complied
with to the reasonable satisfaction of the Placement Agent.
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(B) The
Placement Agent shall not have discovered and disclosed to the Company on or
prior to the Closing Date that the Registration Statement, the Base Prospectus
or the Prospectus Supplement or any amendment or supplement thereto contains
statement that Sutter or a Purchaser , in their sole judgment, believe to be an
untrue statement of fact, which, in the opinion of counsel for the Placement
Agent or such Purchaser, is material or omits to state any fact which, in the
opinion of such counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(C) All
corporate proceedings and other legal matters incident to the authorization,
form, execution, delivery and validity of each of this Agreement, the
Securities, the Registration Statement, the Base Prospectus and the Prospectus
Supplement and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be reasonably satisfactory in all
material respects to counsel for the Placement Agent, and the Company shall have
furnished to such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(D) The
Placement Agent shall have received from outside counsel to the Company such
counsel’s written opinion, addressed to the Placement Agent and the Purchasers
dated as of the Closing Date, in form and substance reasonably satisfactory to
the Placement Agent, which opinion shall include a “10b-5” representation from
such counsel.
(E) Neither
the Company nor any of its Subsidiaries shall have sustained since the date of
the latest audited financial statements included or incorporated by reference in
the Base Prospectus, any loss or interference with its business from fire,
explosion, flood, terrorist act or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth in or contemplated by the Base Prospectus
and (ii) since such date there shall not have been any change in the capital
stock or long-term debt of the Company or any of its Subsidiaries or any change,
or any development involving a prospective change, in or affecting the business,
general affairs, management, financial position, stockholders’ equity, results
of operations or prospects of the Company and its Subsidiaries, otherwise than
as set forth in or contemplated by the Base Prospectus, the effect of which, in
any such case described in clause (i) or (ii), is, in the judgment of the
Placement Agent, so material and adverse as to make it impracticable or
inadvisable to proceed with the sale or delivery of the Securities on the terms
and in the manner contemplated by the Base Prospectus, the Time of Sale
Prospectus, if any, and the Prospectus Supplement.
(F) The
Common Stock is registered under the Exchange Act and, as of the Closing Date,
the Shares shall be listed and admitted and authorized for trading on NYSE-Amex,
and satisfactory evidence of such actions shall have been provided to the
Placement Agent. The Company shall have taken no action designed to,
or likely to have the effect of terminating the registration of the Common Stock
under the Exchange Act or delisting or suspending from trading the Common Stock
from NYSE-Amex, nor has the Company received any information suggesting that the
Commission or NYSE-Amex is contemplating terminating such registration or
listing.
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(G) Subsequent
to the execution and delivery of this Agreement, there shall not have occurred
any of the following: (i) trading in securities generally on the New York Stock
Exchange, the Nasdaq National Market or the NYSE Amex or in the over-the-counter
market, or trading in any securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or minimum or maximum prices
or maximum ranges for prices shall have been established on any such exchange or
such market by the Commission, by such exchange or by any other regulatory body
or governmental authority having jurisdiction, (ii) a banking moratorium shall
have been declared by federal or state authorities or a material disruption has
occurred in commercial banking or securities settlement or clearance services in
the United States, (iii) the United States shall have become engaged in
hostilities in which it is not currently engaged, the subject of an act of
terrorism, there shall have been an escalation in hostilities involving the
United States, or there shall have been a declaration of a national emergency or
war by the United States, or (iv) there shall have occurred any other calamity
or crisis or any change in general economic, political or financial conditions
in the United States or elsewhere, if the effect of any such event in clause
(iii) or (iv) makes it, in the sole judgment of the Placement Agent,
impracticable or inadvisable to proceed with the sale or delivery of the
Securities on the terms and in the manner contemplated by the Base Prospectus
and the Prospectus Supplement.
(H) No
action shall have been taken and no statute, rule, regulation or order shall
have been enacted, adopted or issued by any governmental agency or body which
would, as of the Closing Date, prevent the issuance or sale of the Securities or
materially and adversely affect or potentially and adversely affect the business
or operations of the Company; and no injunction, restraining order or order of
any other nature by any federal or state court of competent jurisdiction shall
have been issued as of the Closing Date which would prevent the issuance or sale
of the Securities or materially and adversely affect or potentially and
adversely affect the business or operations of the Company.
(I) The
Company shall have prepared and filed with the Commission a Current Report on
Form 8-K with respect to the Placement, including as an exhibit thereto this
Agreement.
(J) The
Company shall have entered into subscription agreements with each of the
Purchasers and such agreements shall be in full force and effect and shall
contain representations and warranties of the Company as agreed between the
Company and the Purchasers.
(K) FINRA
shall have raised no objection to the fairness and reasonableness of the terms
and arrangements of this Agreement. In addition, the Company shall,
if requested by the Placement Agent, make or authorize Placement Agent’s counsel
to make on the Company’s behalf, an Issuer Filing with FINRA pursuant to FINRA
Rule 5110 with respect to the Registration Statement and pay all filing fees
required in connection therewith.
(L) Prior
to the Closing Date, the Company shall have furnished to the Placement Agent
such further information, certificates and documents as the Placement Agent may
reasonably request.
All
opinions, letters, evidence and certificates mentioned above or elsewhere in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to counsel for
the Placement Agent.
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SECTION
9. GOVERNING
LAW. This Agreement will be governed by, and construed in
accordance with, the laws of the State of California applicable to agreements
made and to be performed entirely in such State. This Agreement may
not be assigned by either party without the prior written consent of the other
party. This Agreement shall be binding upon and inure to the benefit
of the parties hereto, and their respective successors and permitted assigns.
The parties agree that this Agreement and all controversies, which may arise
between the Placement Agent and the Company, whether occurring prior, on or
subsequent to the date of this Agreement, will be determined by arbitration. The
parties understand that:
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a.
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Arbitration
is final and binding on the
parties.
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b.
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The
parties are waiving their right to seek remedies in court, including the
right to a jury trial.
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c.
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Pre-arbitration
discovery is generally more limited than and different from court
proceedings.
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d.
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The
arbitrators’ award is not required to include factual findings or legal
reasoning and any party’s right to appeal or to seek modification or
rulings by the arbitrators is strictly
limited.
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e.
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The
panel of arbitrators will typically include a minority of arbitrators who
were or are affiliated with the securities
industry.
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The
parties agree that any arbitration under this Agreement will be held at the
facilities of and before an Arbitration Panel appointed by the Financial
Industry Regulatory Authority (“FINRA”), or if the FINRA refuses to accept
jurisdiction, then before JAMS/ENDISPUTE in San Francisco, California. The award
of the arbitrators, or of the majority of them, will be final, and judgments
upon the award may be entered in any court, state or federal, having
jurisdiction. The parties hereby submit themselves and their personal
representatives to the jurisdiction of any state or federal court for the
purpose of such arbitration and entering such judgment.
Any
forbearance to enforce an agreement to arbitrate will not constitute a waiver of
any rights under this Agreement except to the extent stated
herein.
THIS
AGREEMENT IS GOVERNED BY A PRE-DISPUTE ARBITRATION CLAUSE CONTAINED IN SECTION 9
OF THIS AGREEMENT
If either
party shall commence an action or proceeding to enforce any provisions of a
Transaction Document, then the prevailing party in such action or proceeding
shall be reimbursed by the other party for its attorneys fees and other costs
and expenses incurred with the investigation, preparation and prosecution of
such action or proceeding.
SECTION
10. ENTIRE
AGREEMENT/MISC. This Agreement (including the attached
Indemnification Provisions) embodies the entire agreement and understanding
between the parties hereto, and supersedes all prior agreements and
understandings, relating to the subject matter hereof. If any
provision of this Agreement is determined to be invalid or unenforceable in any
respect, such determination will not affect such provision in any other respect
or any other provision of this Agreement, which will remain in full force and
effect. This Agreement may not be amended or otherwise modified or
waived except by an instrument in writing signed by both Xxxxxx Securities and
the Company. The representations, warranties, agreements and
covenants contained herein shall survive the closing of the Placement and
delivery and/or exercise of the Securities, as applicable. This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by
facsimile transmission or a .pdf format file, such signature shall create a
valid and binding obligation of the party executing (or on whose behalf such
signature is executed) with the same force and effect as if such facsimile or
..pdf signature page were an original thereof.
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SECTION
11. 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 (a) the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number specified on
the signature pages attached hereto prior to 6:30 p.m. (New York City time) on a
business day, (b) the next business day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile number on
the signature pages attached hereto on a day that is not a business day or later
than 6:30 p.m. (New York City time) on any business day, (c) the business day
following the date of mailing, if sent by U.S. nationally recognized overnight
courier service, or (d) 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 set forth on the signature pages hereto.
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Please
confirm that the foregoing correctly sets forth our agreement by signing and
returning to Xxxxxx Securities the enclosed copy of this Agreement.
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Very
truly yours,
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XXXXXX
SECURITIES INCORPORATED
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By:
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Name:
Xxxxxxx X. Xxxxxxxx
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Title:
Senior Managing
Director
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Address for
notice:
Xxxxxx X.
Xxx, CEO
Xxxxxx
Securities Incorporated
000
Xxxxxxxxxx Xxxxxx, Xxxxx 0000
San
Francisco, CA 94104
Phone:
000-000-0000
Fax:
000-000-0000
E-mail:xxx@xxxxxxxx.xxx
Accepted
and Agreed to as of
the date
first written above:
ZBB
Energy Corporation
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By:
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Name:
Xxxx X. Xxxxxxxxx
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Title:
Chief Executive Officer
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Address for
notice:
Xxxx X.
Xxxxxxxxx
Chief
Executive Officer
ZBB
Energy Corporation
N93
W14475 Xxxxxxxxx Way
Menomonee
Falls, WI 53051
Phone:
000-000-0000
Fax:
000-000-0000
E-Mail:
xxxxxxxxxx@xxxxxxxxx.xxx
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ADDENDUM
A
INDEMNIFICATION
PROVISIONS
In connection with the engagement of
Xxxxxx Securities Incorporated (“Xxxxxx Securities”) ZBB Energy Corporation the
“Company”)
pursuant to a letter agreement dated [January 26, 2010], between the Company and
Xxxxxx Securities, as it may be amended from time to time in writing (the “Agreement”), the
Company hereby agrees as follows:
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1.
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To
the extent permitted by law, the Company will indemnify Xxxxxx Securities
and its affiliates, stockholders, directors, officers, employees and
controlling persons (within the meaning of Section 15 of the Securities
Act of 1933, as amended, or Section 20 of the Securities Exchange Act of
1934, as amended) against all losses, claims, damages, expenses and
liabilities, as the same are incurred (including the reasonable fees and
expenses of counsel), relating to or arising out of its activities
hereunder or pursuant to the Agreement, except to the extent that any
losses, claims, damages, expenses or liabilities (or actions in respect
thereof) are found in a final judgment (not subject to appeal) by a court
of law to have resulted primarily and directly from Xxxxxx Securities’
willful misconduct or gross negligence in performing the services
described herein.
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2.
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Promptly
after receipt by Xxxxxx Securities of notice of any claim or the
commencement of any action or proceeding with respect to which Xxxxxx
Securities is entitled to indemnity hereunder, Xxxxxx Securities will
notify the Company in writing of such claim or of the commencement of such
action or proceeding, and the Company will assume the defense of such
action or proceeding and will employ counsel reasonably satisfactory to
Xxxxxx Securities and will pay the fees and expenses of such
counsel. Notwithstanding the preceding sentence, Xxxxxx
Securities will be entitled to employ counsel separate from counsel for
the Company and from any other party in such action if counsel for Xxxxxx
Securities reasonably determines that it would be inappropriate under the
applicable rules of professional responsibility for the same counsel to
represent both the Company and Xxxxxx Securities. In such
event, the reasonable fees and disbursements of no more than one such
separate counsel will be paid by the Company. The Company will
have the exclusive right to settle the claim or proceeding provided that
the Company will not settle any such claim, action or proceeding without
the prior written consent of Xxxxxx Securities, which will not be
unreasonably withheld.
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3.
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The
Company agrees to notify Xxxxxx Securities promptly of the assertion
against it or any other person of any claim or the commencement of any
action or proceeding relating to a transaction contemplated by the
Agreement.
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4.
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If
for any reason the foregoing indemnity is unavailable to Xxxxxx Securities
or insufficient to hold Xxxxxx Securities harmless, then the Company shall
contribute to the amount paid or payable by Xxxxxx Securities as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect not only the relative benefits received by the
Company on the one hand and Xxxxxx Securities on the other, but also the
relative fault of the Company on the one hand and Xxxxxx Securities on the
other that resulted in such losses, claims, damages or liabilities, as
well as any relevant equitable considerations. The amounts paid
or payable by a party in respect of losses, claims, damages and
liabilities referred to above shall be deemed to include any legal or
other fees and expenses incurred in defending any litigation, proceeding
or other action or claim. Notwithstanding the provisions
hereof, Xxxxxx Securities’ share of the liability hereunder shall not be
in excess of the amount of fees actually received, or to be received, by
Xxxxxx Securities under the Agreement (excluding any amounts received as
reimbursement of expenses incurred by Xxxxxx
Securities).
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5.
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These
Indemnification Provisions shall remain in full force and effect whether
or not the transaction contemplated by the Agreement is completed and
shall survive the termination of the Agreement, and shall be in addition
to any liability that the Company might otherwise have to any indemnified
party under the Agreement or
otherwise.
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By:
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Name:
Xxxxxxx X. Xxxxxxxx
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Title:
Senior Managing
Director
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Accepted
and Agreed to as of
the date
first written above:
ZBB
Energy Corporation
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By:
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Name:
Xxxx X. Xxxxxxxxx
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Title:
Chief Executive Officer
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