▇▇▇▇▇ BROTHERS
The Farm House
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Mr. Deli Du
Chairman & Chief Executive Officer
Deli Solar Holding Ltd.
August 12, 2004
AGREEMENT PROVIDING FOR INVESTMENT BANKING SERVICES
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Dear Mr. Du:
This letter agreement (the "Agreement") is written to set forth the
understanding and agreement between ▇▇▇▇▇ Brothers, Inc. and its related
subsidiaries (altogether, "▇▇▇▇▇ Brothers") and Deli Solar Holding Ltd. and its
related subsidiaries and joint venture affiliates (altogether, the "Company").
The Company hereby engages ▇▇▇▇▇ Brothers on an exclusive basis for the
two year period commencing the date hereof to provide it with investment banking
services, and ▇▇▇▇▇ Brothers hereby accepts such engagement.
I. INVESTMENT BANKING SERVICES
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1. Financial Advisory Services
▇▇▇▇▇ Brothers, through its subsidiary ▇▇▇▇▇ Bros. & Co., Inc. (the
"Advisor") and its subsidiary ▇▇▇▇▇ Brothers Securities Corporation (the
"Placement Agent"), will assist the Company with its current investment banking
requirements, including what is presently expected to be a transaction involving
the merger of the Company in a reverse takeover with a public shell purchased by
the Company and the simultaneous issuance of approximately $6-8 million of
equity in the form of units including one share of common stock and one warrant
(or things of equivalent value invested in it or its controlled subsidiaries or
affiliates) from institutional and high-net-worth individual financial investors
("Financial Investors") or, at the option of the Company, strategic investors
("Strategic Investors"), to be provided over the period of this Agreement
(altogether, the "Financing").
With respect to Financial Investors, ▇▇▇▇▇ Brothers will provide the
following financial advisory and placement agency services relating to the
Financing:
(i) provide advice regarding the financial structure of the Company or its
subsidiaries or any projects or programs undertaken by any of the
foregoing; (ii) assist in structuring the Financing with respect to what
is usual and standard practice on terms and conditions equivalent for
organizations in similar financings; (iii) assist in preparing and
documenting the offering memorandum and related materials relating to the
Financing; (iv) when the structuring of the Financing has reached an
appropriate stage, assist in the process to obtain and execute such
Financing; and (v) assist in obtaining and executing such Financing on the
most favorable terms and conditions consistent with current market
conditions and the nature of and risks inherent in the Company.
With respect to Strategic Investors, ▇▇▇▇▇ Brothers will provide the
following services:
(i) assist in the evaluation of a Strategic Investor from a financial
point of view; (ii) provide advice and assistance with respect to the form
and structure of the transaction involving the Strategic Investor; and,
when the structuring of the strategic relationship has reached an
appropriate stage, (iii) act as the Company's agent to assist the Company
in locating and obtaining, on the most favorable terms and conditions,
such Strategic Investors in the form of Company clients, customers or
vendors, and assist the parties to enter into sales, vendor, licensing or
related strategic agreements. (Such agreements with Strategic Investors,
whether they result in a financial investment and or license arrangement,
sales or vendor agreement or otherwise, shall also be considered Financing
for purposes of this Agreement.)
▇▇▇▇▇ Brothers shall not be required to undertake duties not reasonably
within the scope of the financial advisory services in which it is generally
engaged. In performance of its duties, ▇▇▇▇▇ Brothers shall provide the Company
with the benefits of its best judgment and efforts, but it is understood and
acknowledged by the parties that the value of ▇▇▇▇▇ Brothers' advice may not be
measurable in a quantitative manner.
The Company acknowledges that ▇▇▇▇▇ Brothers and its affiliates are in the
business of providing financial advisory services of all types contemplated by
this Agreement to others. Nothing herein contained shall be construed to limit
or restrict ▇▇▇▇▇ Brothers or its affiliates in conducting such business with
respect to others or rendering such advice to others.
The Company recognizes and confirms that ▇▇▇▇▇ Brothers, in acting
pursuant to this Agreement, will be using information in reports and other
information provided by third parties, including information provided by or on
behalf of the Company. ▇▇▇▇▇ Brothers does not assume responsibility for and may
rely on, without independent verification, the accuracy and completeness of any
such reports and information. The Company hereby warrants that any information
relating to the Company that is furnished to ▇▇▇▇▇ Brothers by or on behalf of
the Company will be accurate and will not contain any material misstatements of
fact or omissions. The Company agrees that any information or advice rendered by
▇▇▇▇▇ Brothers or its representatives in connection with this Agreement is for
confidential use of the Company's Board of Directors, management and employees,
as well as attorneys, accountants and other agents of the Company on a
need-to-know basis and, except as otherwise required by law, the Company will
not, and will not permit any third party to, disclose or otherwise refer to such
advice or information in any manner without ▇▇▇▇▇ Brothers' prior written
consent.
2
2. Merger and Acquisition Services
Relating to its assistance with respect to the Financing, ▇▇▇▇▇ Brothers
shall provide the Company with services related to merger and acquisition
transactions.
For purposes of this Agreement, the term "merger and acquisition
transaction" means: (i) any merger, consolidation, reorganization or other
business combination including strategic partnerships or joint ventures pursuant
to which the business or businesses of a third party, including projects,
stand-alone assets or technologies, are combined with that of the Company in
either a direct ownership, joint venture or strategic alliance fashion; (ii) the
acquisition, directly or indirectly, by the Company of all or a substantial
portion of the assets or equity of a third party by way of negotiated purchase
or otherwise; or (iii) the acquisition, directly or indirectly, by a third party
of all or a substantial portion of the assets or equity of the Company by way of
negotiated purchase or otherwise (the "Transaction(s)").
▇▇▇▇▇ Brothers' merger and acquisition services may include, but will not
necessarily be limited to:
(i) Assistance in the identification of businesses, organizations, assets
or technologies that may constitute potential Transactions; (ii)
assistance in the evaluation of such third parties from a financial point
of view; (iii) assistance with respect to the form and structure of the
Transaction; (iv) conducting discussions and negotiations regarding a
Transaction; and (v) providing other related advice and assistance as the
Company may reasonably request in connection with a Transaction.
The Company acknowledges that ▇▇▇▇▇ Brothers and its affiliates are in the
business of providing merger and acquisition services (of all types contemplated
by this agreement) to others. Nothing herein contained shall be construed to
limit or restrict ▇▇▇▇▇ Brothers or its affiliates in conducting such business
with respect to others or in rendering such advice to others.
3
3. Strategic Planning Services
Relating to its assistance with respect to the Financing, ▇▇▇▇▇ Brothers
shall provide the Company with strategic planning services. ▇▇▇▇▇ Brothers
strategic planning services shall include, but not be limited to, the following:
(i) advice regarding the Company's business plan; (ii) advice regarding
formation of the Company's corporate goals and their implementation; (iii)
advice regarding corporate organization, personnel and the related
selection of needed specialty skills; (iv) general corporate documentation
preparation and assistance, including services relating to assisting the
Company in preparation of its business plan and related materials,
including regulatory and filing documentation; (v) assistance regarding
preparation and organization of the Company's corporate paperwork; and
(vi) assistance in negotiating with creditors and otherwise restructuring
the Company's obligations.
II. COMPENSATION
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In consideration of rendering such services, the Company agrees to pay
▇▇▇▇▇ Brothers on the following basis:
(i) for financial advisory services--
(a) a signing fee of $30,000, payable upon the execution of this
Agreement;
(b) a documentation fee of $20,000, payable upon the completion of
documentation associated with any Financing or Transaction; and
(c) a purchase fee of $100,000, payable upon the successful purchase of
the public shell, payable from the proceeds of the Financing; and
(d) a financing fee, payable upon closing(s) of the Financing, equal to
the following percentages of the total Financing value:
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Corporate Financing Fee
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Public equity offering 10.00%, plus warrants
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Exercise of Warrants or Subscription 9.00%
Rights
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4
With respect to warrants provided as compensation as indicated in the
tables above, the warrant "coverage", that is the percent of the dollar
amount of securities issued for which ▇▇▇▇▇ Brothers shall receive
warrants to purchase the Company's equity securities, shall be 10%. For
example, if the Company issues $1 million of securities, ▇▇▇▇▇ Brothers
shall receive warrants to buy $100,000 of common stock of the Company.
Such warrants will have a strike price that is 110% of the price of the
equity securities, or underlying equity securities, offered in the
Financing, or 100% of the price of the Company's common stock as set by
the most recent third party sale and shall be outstanding for a period of
10 years.
In connection with our financial advisory services, you agree that if
during the period ▇▇▇▇▇ Brothers is retained by you or within 2 years thereafter
a Financing is consummated with a third party, acting either as a Financial
Investor or as a Strategic Investor, who was introduced directly or indirectly
by ▇▇▇▇▇ Brothers ("Introduced Investors"), or if the Company enters into a
definitive agreement with Introduced Investors which at any time thereafter
results in a Financing, you will pay ▇▇▇▇▇ Brothers a financing fee equal to the
fees indicated above with respect to such Financing. It is understood that for
purposes of this Agreement, ▇▇▇▇▇ Brothers shall be deemed to have introduced
such Introduced Investors to the Company not only by physical introductions and
meetings, but also by arranging or facilitating telephonic or correspondence
meetings between the parties, whether or not ▇▇▇▇▇ Brothers participated in such
meetings, telephone calls or correspondence.
Additionally, if during the period ▇▇▇▇▇ Brothers is retained by you or
within 2 years thereafter, a Financing is consummated with a third party not
introduced to the Company by ▇▇▇▇▇ Brothers, ▇▇▇▇▇ Brothers will be paid a fee
equal to 50% of its compensation due pursuant to the language above.
Notwithstanding anything contained herein, ▇▇▇▇▇ Brothers' fees payable in
connection with a Financing shall be paid at the level of the compensation table
above at any time as there is a closing of the Financing or Transaction, or
tranche of the Financing or Transaction, or finalization of related
documentation or purchase of a public shell (the "Closings"), and at the option
of ▇▇▇▇▇ Brothers, shall be paid in cash or in the securities of the Company
being offered in the Financing.
In the event that ▇▇▇▇▇ Brothers is successful in raising the Financing,
but the Company declines to accept the Financing, ▇▇▇▇▇ Brothers will be paid a
fee equal to 50% of its compensation due pursuant to the language above.
(ii) for merger and acquisition services--
(a) a merger and acquisition fee equal to the "▇▇▇▇▇▇ Formula" based on
$5 million increments, that is, 5% of the first $5 million, 4% of
the second $5 million, etc., of the consideration paid in the
Transaction, or the ▇▇▇▇▇▇ Formula of the equity value of the
organization being acquired, at the option of ▇▇▇▇▇ Brothers.
5
In the event that ▇▇▇▇▇ Brothers is involved in both merger and
acquisition services and financial advisory services with respect to a
Transaction, ▇▇▇▇▇ Brothers shall be paid for each service.
For purpose of this Agreement, "consideration" means the aggregate value,
whether in cash, securities, assumption (or purchase subject to) of debt or
liabilities (including, without limitation, indebtedness for borrowed money,
pension liabilities or guarantees) or other property, obligations or services,
paid or payable directly or indirectly (in escrow or otherwise) or otherwise
assumed in connection with a Transaction, or the net present value of the
estimated benefits to the Company of any joint venture, licensing or marketing
agreement ("Consideration"). The value of Consideration shall be determined as
follows:
(a) the value of securities, liabilities, obligations, property and
services shall be the fair market value as shall mutually be agreed
upon at the date of the closing of the Transaction;
(b) the value of indebtedness, including indebtedness assumed, shall be
the face amount; and/or
(c) the net present value of the estimated benefits to the Company of
any joint venture, licensing or marketing agreement, as mutually
determined by the parties. If the parties cannot come to such mutual
determination, the net present value described above shall be
determined by arbitration.
If the Consideration payable in a Transaction includes contingent payments
to be calculated by reference to uncertain future occurrences, such as future
financial or business performance, then any fees of ▇▇▇▇▇ Brothers relating to
such Consideration shall be payable at the time of the receipt of such
Consideration.
The Company acknowledges that ▇▇▇▇▇ Brothers and its affiliates are in the
business of providing merger and acquisition services (of all types contemplated
by this Agreement) to others. Nothing herein contained shall be construed to
limit or restrict ▇▇▇▇▇ Brothers or its affiliates in conducting such business
with respect to others or in rendering such advice to others.
The Company also acknowledges that ▇▇▇▇▇ Brothers and its affiliates have
or may have ownership interests in businesses, assets or technologies identified
by them or others to the Company as potential Transactions. Nothing herein
contained shall be construed to limit or restrict the ability of ▇▇▇▇▇ Brothers
or its affiliates to be compensated for its ownership interest in such a
Transaction on a basis separate and apart from the compensation described
herein.
In connection with our merger and acquisition services, you agree that if
during the period ▇▇▇▇▇ Brothers is retained by you or within 2 years
thereafter, a Transaction is consummated with a third party introduced by ▇▇▇▇▇
Brothers or the Company enters into a definitive agreement with a third party
introduced by ▇▇▇▇▇ Brothers which at any time thereafter results in a
Transaction ("Third Parties"), you will pay ▇▇▇▇▇ Brothers a transaction fee
equal to the ▇▇▇▇▇▇ Formula times the Consideration.
6
It is understood that for purposes of this Agreement, ▇▇▇▇▇ Brothers shall
be deemed to have introduced such Third Parties to the Company not only by
physical introductions and meetings, but also by arranging or facilitating
telephonic or correspondence meetings between the parties, whether or not ▇▇▇▇▇
Brothers participated in such meetings, telephone calls or correspondence.
Additionally, if during the period ▇▇▇▇▇ Brothers is retained by you or
within 2 years thereafter, a Transaction is consummated with a third party not
introduced to the Company by ▇▇▇▇▇ Brothers, ▇▇▇▇▇ will be paid a fee equal to
50% of its compensation due pursuant to the language above.
(iii) for strategic planning services--
Upon execution of this Agreement:
(a) a monthly retainer of $10,000 per month for the duration of this
Agreement, payable on the first of the month.
(iv) for expenses--
(a) the Company shall pay directly the reasonable expenses incurred by
▇▇▇▇▇ Brothers in relation to the Financing, including expenses
related to ▇▇▇▇▇ Brothers' due diligence, and shall reimburse ▇▇▇▇▇
Brothers for any expenses reasonably incurred by it related to the
Financing, subject to such expenses being authorized in advance by
the Company (including, without limitation, reasonable professional
and reasonable legal fees and disbursements incurred by ▇▇▇▇▇
Brothers in connection with its engagement hereunder with respect to
services to be rendered by it, as well as any such fees or expenses
reasonably incurred directly by personnel of ▇▇▇▇▇ Brothers in
connection with work on behalf of the Company).
(b) In the event the Financing does not close due to a material
misrepresentation by the Company that is discovered during the due
diligence process, the Company will reimburse ▇▇▇▇▇ Brothers for its
out of pocket expenses, plus a breakage fee of $50,000.
III. RIGHT TO BOARD PARTICIPATION OR OBSERVER STATUS
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▇▇▇▇▇ Brothers has the right, in its sole discretion, to name a
representative to the Company's board of directors during the time of this
Agreement and for such period of time after the termination of this Agreement as
any Financial or Strategic Investor introduced by ▇▇▇▇▇ Brothers owns 5% or more
of the Company's common stock. In its sole discretion, ▇▇▇▇▇ Brothers may not
exercise its board participation right, but shall instead choose to be named an
Observer to the Company's board of directors. Observer status, if exercised,
shall entitle ▇▇▇▇▇ Brothers to be present at all board meetings, including
physical and telephonic sessions, as well as to receive all information provided
to the Company's board members for such meetings; Observer status shall not
enable ▇▇▇▇▇ Brothers to vote or otherwise participate at such board meetings.
IV. RIGHT TO SUB-CONTRACT OR SYNDICATE
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▇▇▇▇▇ Brothers has the right, in its sole discretion, to sub-contract any
of its rights to provide services hereunder to qualified third parties in its
sole discretion, so long as ▇▇▇▇▇ Brothers remains the prime contractor of such
services to the Company. ▇▇▇▇▇ Brothers has the right to enter into any finder,
inter dealer or syndication agreements with qualified parties with respect to
placing and arranging the Financing.
V. ADDITIONAL INVESTMENT BANKING SERVICES
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The Company agrees that ▇▇▇▇▇ Brothers shall have the right, but not the
obligation, which right is exercisable in ▇▇▇▇▇ Brothers' sole discretion, to
provide investment banking services to the Company on an exclusive basis in
relation to the Company's financing for a period of 2 years from the date of the
expiration of this Agreement and such additional period of time as may be
necessary to complete any project or Transaction already commenced pursuant to
the Company's written request or engagement of ▇▇▇▇▇ Brothers prior to the
expiration of such 2 year period. Such services may include underwriting and
acting as a placement agent for the Company's securities on a lead-managed or
co-managed basis and providing other financial advisory services. Such right
shall terminate with respect to any transaction or service if the Company shall
request ▇▇▇▇▇ Brothers to lead such transaction or to provide such service and
▇▇▇▇▇ Brothers shall fail to notify the Company within fifteen (15) days
thereafter that ▇▇▇▇▇ Brothers will accept the engagement. In the event that
▇▇▇▇▇ Brothers agrees to provide such investment banking services, ▇▇▇▇▇
Brothers shall be paid as described in paragraph II above. The remaining terms
of such engagement shall be contained in specific engagement agreements relating
to the specific transaction. Notwithstanding the above or any oral
representations or assurances previously or subsequently made by the parties,
this Agreement does not constitute a commitment by or obligation of ▇▇▇▇▇
Brothers to act as underwriter or placement agent in connection with any future
offering of the Company's corporate securities. Such a commitment on the part of
▇▇▇▇▇ Brothers will exist only upon the execution of a final, written engagement
agreement and then only in accordance with the terms and conditions thereof. In
any event, ▇▇▇▇▇ Brothers may determine in its sole discretion, for any reason
(including, without limitation, the results of its due diligence investigation,
a material change in the Company's financial condition; business or prospects,
the lack of appropriate internal ▇▇▇▇▇ Brothers committee approvals or then
current market conditions) not to participate in such an offering of the
Company's securities. In the event that ▇▇▇▇▇ Brothers, with respect to any
particular transaction, elects not to provide investment banking or financial
advisory services to the Company, nothing contained herein shall be deemed to
prevent the Company from utilizing the services of another investment banking
firm for such transaction, but such retention of another investment banking firm
shall be without prejudice to ▇▇▇▇▇ Brothers' rights hereunder with respect to
subsequent transactions.
8
Upon the execution of a publicly traded equity or debt capital markets
transaction lead or co-managed by ▇▇▇▇▇ Brothers, ▇▇▇▇▇ Brothers, in accordance
with its customary practices, will provide market making and research services
to investors in the securities of the Company (subject, however, to the
Company's continuation or its engagement of ▇▇▇▇▇ Brothers as a financial
advisor and subject to its customary right not to make a market in such
securities at any time or to suspend research coverage).
For the purpose of this agreement, "cause" means the failure by ▇▇▇▇▇
Brothers to perform in a material respect its obligations hereunder in
accordance with the skill and diligence normally provided by recognized
investment banking companies; provided, however, that the Company shall first
give ▇▇▇▇▇ Brothers reasonable prior written notice of the Company's intent to
terminate the engagement (such notice to specify in reasonable detail the facts
alleged to give rise to the Company's right to terminate for cause) and shall
have provided ▇▇▇▇▇ Brothers a reasonable opportunity to cure by performing such
obligations (the reasonableness of such opportunity to be measured not only by
▇▇▇▇▇ Brothers' ability to perform during such period but also by the adverse
effect on the Company resulting from providing such additional period to enable
▇▇▇▇▇ Brothers to perform).
VI. INDEMNIFICATION
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The Company shall indemnify ▇▇▇▇▇ Brothers and hold it harmless against
any and all losses, claims, damages or liabilities to which ▇▇▇▇▇ Brothers may
become subject arising in any manner out of or in connection with the rendering
of service by ▇▇▇▇▇ Brothers hereunder, unless it is finally judicially
determined that such losses, claims, damages or liabilities resulted from the
gross negligence, bad faith and willful misconduct of ▇▇▇▇▇ Brothers.
The Company shall reimburse ▇▇▇▇▇ Brothers promptly for any legal or other
expenses reasonably incurred by it in connection with investigating, preparing
to defend or defending, or providing evidence in or preparing to serve or
serving as a witness with respect to, or otherwise relating to, any lawsuits,
investigations, claims or other proceedings arising in any manner out of or in
connection with the rendering of services by ▇▇▇▇▇ Brothers hereunder (including
without limitation, in connection with the enforcement of this Agreement and the
indemnification obligations set forth herein); provided, however, that in the
event of a final judicial determination is made to the effect specified above,
▇▇▇▇▇ Brothers will remit to the Company any amounts reimbursed under such
paragraph.
The Company agrees that the indemnification and reimbursement commitments
set forth in this paragraph shall apply if either the Company or ▇▇▇▇▇ Brothers
is a formal party to any such lawsuits, claims or other proceedings and that
such commitments shall extend upon the terms set forth in this paragraph to any
controlling person, affiliate, director, officer, employee, or agent of ▇▇▇▇▇
Brothers (each, with ▇▇▇▇▇ Brothers, an "Indemnified Person"). The Company
further agrees that, without ▇▇▇▇▇ Brothers' prior written consent, which
consent will not be unreasonably withheld, it will not enter into any settlement
of a lawsuit, claim or any other proceeding arising out of the transactions
contemplated by this Agreement unless such settlement includes an implicit and
unconditional release from the party bringing such lawsuit, claim or other
proceeding of all Indemnified Persons.
9
The Company further agrees that the Indemnified Persons are entitled to
retain separate counsel of their choice in connection with any matters in
respect of which Indemnification, reimbursement or contribution may be sought
under this Agreement. Fees for counsel will be payable only if management and
counsel to the Company have has been consulted and allowed to participate fully
in the selection of reasonable and appropriate counsel to the Indemnified
Person(s). Each Indemnified person shall give notice to the Company within
thirty (30) days of the assertion against such Indemnified Person of any claim
or the commencement of any action or proceeding relating to any foregoing,
provided further that if the Indemnified person fails to notify the Company,
then the Company shall be relieved of any liability that it may have to such
Indemnified Person as to such claim hereunder.
The Company and ▇▇▇▇▇ Brothers agree that if any indemnification or
reimbursement sought pursuant to the preceding paragraph is judicially
determined to be unavailable for a reason other than the gross negligence, bad
faith or willful misconduct of ▇▇▇▇▇ Brothers, then whether or not ▇▇▇▇▇
Brothers is the Indemnified Person, the Company and ▇▇▇▇▇ Brothers shall
contribute to the losses, claims, damages, liabilities and expenses for which
such indemnification or reimbursement is held unavailable (i) in such proportion
as is appropriate to reflect the relative benefits to the Company on the one
hand, and ▇▇▇▇▇ Brothers on the other hand, in connection with the transactions
to which such indemnification or reimbursement relates, or (ii) if the
allocation provided by clause (i) above is judicially determined not to be
permitted, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) but also the relative faults of the Company
on the one hand, and ▇▇▇▇▇ Brothers on the other hand, as well as any other
equitable considerations; provided, however, that in no event shall the amount
to be contributed by ▇▇▇▇▇ Brothers pursuant to this paragraph exceed the amount
of the fees actually received by ▇▇▇▇▇ Brothers hereunder.
VII. MISCELLANEOUS
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Except as contemplated by the terms hereof or subpoena issued by a court
of competent jurisdiction, ▇▇▇▇▇ Brothers shall keep confidential all non-public
information provided to it by the Company, and shall not disclose such
information to any third party, other than such of its employees and advisors as
▇▇▇▇▇ Brothers determines to have a need to know.
10
Except as required by applicable law, any advice to be provided by ▇▇▇▇▇
Brothers under this Agreement shall not be disclosed publicly or made available
to any third parties without the prior approval by ▇▇▇▇▇ Brothers, and
accordingly such advice shall not be relied upon by any person or entity other
than the Company.
The term of ▇▇▇▇▇ Brothers' engagement hereunder shall extend from the
date hereof until terminated as set forth below. Subject to the provisions of
this Agreement that shall survive any termination or expiration of the
understanding between the parties, either party may terminate ▇▇▇▇▇ Brothers'
engagement hereunder at any time by giving the other party at least 10 days
written notice.
The Company agrees that ▇▇▇▇▇ Brothers has the right to place
advertisements in financial and other newspapers and journals describing the
Company's Financing and ▇▇▇▇▇ Brothers' related services to the Company
hereunder, provided that ▇▇▇▇▇ Brothers will submit a copy of any such
advertisements to the Company for its prior approval, which approval shall not
be unreasonably withheld.
Nothing in this Agreement, expressed or implied, is intended to confer or
does it confer on any person or entity other than the parties hereto or their
respective successors and assigns, and to the extent expressly set forth herein,
the Indemnified Persons, any rights or remedies under or by reason of this
Agreement or as a result of the services to be rendered by ▇▇▇▇▇ Brothers
hereunder.
Neither the execution and delivery of this letter Agreement by the Company
nor the consummation of the transactions contemplated hereby will, directly or
indirectly, with or without the giving of notice or lapse of time, or both: (i)
violate any provisions of the Certificate of Incorporation or By-laws of the
Company; or (ii) violate, or be in conflict with, or constitute a default under,
any agreement, lease, mortgage, debt or obligation of the Company or require the
payment, any pre-payment or other penalty with respect thereto.
The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provisions of this
Agreement, which shall remain in full force and effect.
This Agreement may not be amended or modified except in writing signed by
each of the parties and shall be governed by and construed and enforced in
accordance with the laws of the State of Connecticut. The Company and ▇▇▇▇▇
Brothers hereby irrevocably and unconditionally consent to submit to the
exclusive jurisdiction of the courts of the State of Connecticut and of the
United States District Courts located in Connecticut for any lawsuits, actions
or other proceedings arising out of or relating to this Agreement and agree not
to commence any such lawsuit, action or other proceeding except in such courts.
The Company further agrees that service of any process, summons, notice or
document by mail, return receipt requested, to the Company's address set forth
above shall be effective service of process for any lawsuit, action or other
proceeding brought against the Company in any such court. The Company and ▇▇▇▇▇
Brothers hereby irrevocably and unconditionally waive any objection to the
laying of venue of any lawsuit, action or other proceeding arising out of or
relating to this Agreement in the courts of the State of Connecticut or the
United States District Courts located in the State of Connecticut, and hereby
further irrevocably and unconditionally waive and agree not to plead or claim in
any such court that any such lawsuit, action or other proceeding brought in any
such court has been brought in an inconvenient forum. Any right to trial by jury
with respect to any lawsuit, claim or other proceeding arising out of or
relating to this Agreement or the services to be rendered by ▇▇▇▇▇ Brothers
hereunder is expressly and irrevocably waived.
11
This agreement is subject to the approval of the board of directors of
both companies.
If the foregoing correctly sets forth the understanding and agreement
between ▇▇▇▇▇ Brothers and the Company, please so indicate in the space provided
for that purpose below, whereupon this letter shall constitute a binding
agreement as of the date hereof.
▇▇▇▇▇ Brothers, Inc.
By:
------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman
AGREED:
By:
--------------------------
Name:
Title:
Jinpan International Limited
Cc: Delphinian Quest Advisors
▇▇. ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇
12
