Odeon Capital Group LLC 750 Lexington Avenue 26th Floor New York, NY 10022 212-257-6970 212-504-3012 Fax
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Odeon Capital Group
LLC
000 Xxxxxxxxx
Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
000-000-0000
000-000-0000
Fax
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January 24, 2011
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Blackhawk Capital Group BDC,
Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxx X. Xxxxxx,
CEO
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Dear Xx. Xxxxxx:
This Agreement (this “Agreement”) will confirm the basis upon which
Blackhawk Capital Group BDC, Inc. (the “Company”), a Delaware corporation and a
business development company registered under the Investment Company Act of
1940, as amended, has engaged Odeon Capital Group, LLC (“Odeon”), a Delaware limited liability
company, to provide placement agent, financial advisory and investment banking
services in connection with the Offering (as defined below) and the Annual
Services (as defined below).
Section
1
The Company hereby retains
Odeon:
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(a)
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to act as the exclusive placement
agent to the Company with respect to a best efforts private placement
transaction (a “Offering”), for the Company, pursuant to
Section 4(2) of the Securities Act of 1933, as amended, and (i) Regulation D or (ii) Regulation E promulgated thereunder, of up to
five million dollars ($5,000,000) of shares of the Company’s common stock,
par value $0.00001 per share (the “Shares”). The Company will
not offer any of the Shares for sale to, or solicit any offers to buy
from, any person or persons, whether directly or indirectly, otherwise
than through Odeon. The number and price of the Shares that the
Company shall ultimately agree to sell is entirely within the Company’s
sole discretion. The Offering will be pursuant to a
Confidential Offering Circular dated January __, 2011 (the “Memorandum”) and a subscription agreement
and purchase questionnaire (the "Subscription
Agreement"). The maximum amount
to be raised in the Offering is $5,000,000 and the Company anticipates
that 10,000,000 Shares will be sold at a purchase price of $0.50 per
Share. There is no minimum requirement for the sale of Shares
by the Company. The closings will occur upon receipt of funds
as received. Investors must be advised that there is no minimum
amount of subscriptions that must be raised in the Offering before the
initial closing or any “rolling” closing can take place. Funds
will be placed into an escrow account prior to any closing. The
Company reserves the right to lower the minimum or increase the maximum at
its sole discretion. Under no circumstances shall Odeon be liable for
failure to obtain, produce or close the proposed Offering(s);
and
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Blackhawk Capital Group BDC,
Inc.
January 24, 2011
Page 2
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(b)
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from and after the final closing
of the Offering, (i) to act as the exclusive financial advisor to
exclusively source, on behalf of the Company, between $75,000,000 and
$250,000,000 of potential portfolio assets to be acquired by the Company
in exchange for common stock of the Company; provided, however, that under no circumstances
shall Odeon be liable for any failure to source such portfolio assets; and
(ii) in the event that $5 million of the Shares are sold in the Offering,
then for a period of two (2) years, to advise the Company with respect to
the retention of an investor relations firm and the sourcing of one or
more broker dealer or investment banking firms to provide market research
services for the Company (collectively, the “Annual
Services”).
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Section
2. Services to
be Rendered. Odeon agrees to perform
such of the following financial advisory and investment banking services as the
Company reasonably and specifically requests:
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(a)
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Odeon will familiarize itself to
the extent it deems appropriate and feasible with the business, operations
and financial condition of the Company and the industry in which the
Company operates (the “Industry”);
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(b)
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As necessary, with management of
the Company, meet with potential investors approved by the Company and
provide them with such information furnished by the Company as may be
appropriate;
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(c)
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Assist the Company in negotiating
with identified potential investors approved by the Company including
assistance in determining the terms of the
Offering;
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(d)
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Assist the Company and the
Company’s legal counsel in preparing documents related to the Offering and
having such documents executed in order to close the transaction and any
other agreements as may be
necessary;
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(e)
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Undertake all actions in
connection with the Offering in compliance with law, including all federal
and state securities laws;
and
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(f)
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Undertake such further efforts and
do such further acts as may be necessary or desirable to carry out and
consummate the Offering and provide services under the Annual Services, in
each case as agent and advisor to the
Company.
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Blackhawk Capital Group BDC,
Inc.
January 24, 2011
Page 3
The Company will furnish, and, if the
Company enters into negotiations with a counterparty regarding the Offering,
will request such counterparty to furnish, to Odeon such information as Odeon
reasonably requests in connection with the performance of its services hereunder
(all such information so furnished is referred to herein as the “Information”). The Company understands
and agrees that Odeon, in performing its services hereunder, will use and rely
upon the Information as well as publicly available information regarding the
Company, any counterparties and the Industry generally, and that Odeon does not
assume responsibility for independent verification of any Information or any
such publicly available information, including, without limitation, any
Information received with respect to the Industry or any financial information,
forecasts, projections, actuarial models or other information considered by
Odeon in connection with its analysis or the rendering of its
services. Accordingly, Odeon shall be entitled to assume and rely
upon the accuracy and completeness of all such Information and is not required
to conduct a physical inspection of any of the properties or assets (or any
documentation related thereto) of the Company, or to prepare or obtain any
independent evaluation or appraisal of any such properties or the assets, or any
other assets or liabilities of the Company or any counterparty. With
respect to any financial information, forecasts, projections or other
information made available to Odeon by or on behalf of the Company or any
counterparty and used by Odeon in its analysis or the rendering of its services,
Odeon shall be entitled to assume that such financial information, forecasts,
projections and other information have been reasonably prepared on bases
reflecting the best currently available estimates and judgments of the
management of the Company or such counterparty, as the case may be, as to the
matters covered thereby. The Company agrees to furnish or cause
to be furnished to Odeon all necessary or appropriate information for use in its
engagement and hereby warrants that any information relating to the Company that
is furnished to Odeon by or on behalf of the Company, will be true and correct
in all material respects and not misleading. If, at any time during
the term of this engagement, the Company becomes aware that the Information is
no longer true and correct in all material respects or is misleading, then the
Company shall promptly advise Odeon by telephone (with confirmation thereof in
writing) and shall promptly take all actions necessary to amend, supplement and
otherwise correct the Information so that the Information, as so amended,
supplemented or otherwise corrected, shall be true and correct in all material
respects and not misleading, including, without limitation, by preparing an
amendment or supplement, if necessary, to the Memorandum and any other materials
used in connection with the Offering (collectively, the “Offering
Materials”).
If, during the term of this engagement
or within 24 months thereafter, the Company considers or undertakes any other
transaction, including any sale (whether in one or a series of transactions) of
all or a substantial portion of the assets or capital stock of the Company, any
merger, joint venture, partnership, spin-off, reverse spin-off, non-pro rata
spin-off or other business combination involving the Company, or any
recapitalization, restructuring or liquidation of the Company or any other form
of transaction or disposition that results in the effective sale, transfer or
other disposition of ownership or control over a substantial portion of one or
more of the principal businesses, assets or operations of the Company,
offerings, financing, restructuring, repurchases of securities, foreign exchange
or derivatives transaction, including, but not limited to, public or private
offerings of debt or equity, or in connection with this engagement or the
transactions contemplated hereby, Odeon will have a right of first refusal to
serve in the relevant lead roles commonly performed by banks, investment banks
and financial advisors in connection with such transactions, including those of
lead agent and lead arranger, sole bookrunning lead managing underwriter or
initial purchaser (as the case may be), exclusive placement agent, lead
financial advisor, principal counterparty and dealer manager, as
applicable. Also, if during the term of this engagement or within 24
months thereafter, the Company is considering or undertakes any other
transaction to obtain debt or equity financing or investments in connection with
its business (a “Subsequent
Offering”), Odeon will have
a right of first refusal to serve as the Company’s exclusive placement agent in
connection with any Subsequent Offering. In addition, if during the
term of this engagement or within 24 months thereafter, the Company is
considering or undertakes any transaction to acquire a portfolio asset,
subsidiary or company from a source introduced to the Company by Odeon in
connection with the Annual Services, Odeon will have a right of first refusal to
serve in the relevant lead roles commonly performed by financial advisors in
connection with such transactions, including those of lead agent and lead
arranger, sole bookrunning lead managing underwriter or initial purchaser (as
the case may be), exclusive placement agent, lead financial advisor, principal
counterparty and dealer manager, as applicable. As compensation for
any of the foregoing services described in this paragraph, Odeon will be paid
its customary fees for performing comparable roles in connection with comparable
transactions and Odeon will enter into a separate agreement or other appropriate
documentation with the Company for such transaction(s) containing such
compensation and other terms and conditions as are customary for internationally
recognized investment banking firms for similar transactions, including, without
limitation, appropriate indemnification provisions. If the Company
sells securities to or receives financing from any investors previously
introduced by Odeon in connection with the Offering (“Protected
Investors”), then in
connection with such sales or financing Odeon shall receive additional financing
fees (the “Additional
Fees”) that are equal to
the greater of (a) the fees set forth in Section 3 of this Agreement and (b) any
underwriting, placement or financing fees that are listed in any future offering
circular, prospectus, or placement memorandum. Prior to the
termination of this Agreement, Odeon will furnish the Company with a written
list of the Protected Investors.
Blackhawk Capital Group BDC,
Inc.
January 24, 2011
Page 4
In connection with the services
described in this Section 2, the Company authorizes Odeon, as the Company's
placement agent and representative, to transmit the Memorandum to potential
parties to an Offering. The Company hereby acknowledges that all
information contained in the Memorandum will be provided by or based upon
information provided by the Company or third parties, and that the Company will
be solely responsible for the contents thereof.
Section
3. Fees.
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(a)
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In the event (and in each event)
that the Company executes a definitive agreement to consummate an
Offering, the Company shall pay to Odeon a cash fee equal to (i) 5% of the
gross proceeds raised in the Offering from investors with which the
Company has affiliations who would be suitable for the Offering, (ii) 10%
of the gross proceeds raised in the Offering from investors who are not
stockholders of the Company as of the date hereof and (iii) Odeon shall
use its “best efforts” to organize a “syndicate” of duly-registered
broker-dealers to assist in the placement of the
Offering. Placement Agent shall manage the “book” for (i.e.,
keep track of) the sales efforts of the broker-dealers participating in
the syndicate. There shall be no minimum offering size required
for Odeon to receive its compensation as set forth in this Section
3.
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(b)
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In connection with the Annual
Services provided in Section 1(b)(i), from and after the final closing of
the Offering, the Company shall pay to Odeon, on each anniversary of the
final closing of the Offering, a cash fee of $50,000 per
year.
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Section
4. Expenses. In addition to any fees
that may be payable to Odeon hereunder and regardless of whether any Offering is
proposed or consummated, the Company hereby agrees, from time to time upon
request, to reimburse Odeon for all reasonable fees and disbursements arising
out of Odeon’s engagement hereunder, including the reasonable fees, expenses and
disbursements of Odeon’s legal counsel. Odeon hereby agrees that Expenses as
described in this Section 4, will be capped at $50,000 unless company
preapproval is requested and duly granted.
Section
5. Term.
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(a)
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Subject to Section 6 hereof, the
term of the engagement hereunder with respect Odeon’s services in
connection with the Offering shall extend until the earlier of (i) the
final closing of the Offering and (ii) the date that is six months from
the date of this Agreement.
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(b)
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Subject to Section 6 hereof, the
term of the engagement hereunder with respect Odeon’s services in
connection with the Annual Services shall extend until the second year
anniversary of the final closing of the
Offering.
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Blackhawk Capital Group BDC,
Inc.
January 24, 2011
Page 5
Section
6. Termination
of Engagement. Odeon’s
engagement hereunder may be terminated by either the Company or Odeon at any
time, with or without cause, upon written advice to that effect to the other
party; provided, however, that:
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(a)
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Odeon will be entitled to its full
fees and expenses as outlined in Sections 3 and 4 hereof in the event that
(i) at any time prior to the expiration of 24 months after such
termination by the Company, an Offering is consummated; (ii) the
Company enters into a definitive agreement during the term of this
Agreement or during such 24 month period which results in an Offering; or
(iii) the Company enters into a definitive agreement with any third party
that Odeon introduced to it, or to which Odeon provided information about
the Company; and
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(b)
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the provisions of this Section 6
and of Sections 3, 4, 8, 9, 10, 11 and 12 hereof, as well as the separate
letter agreement, dated the date hereof, providing for the indemnification
of Odeon by the Company, shall survive termination of this
Agreement.
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Section
7. Reliance on
Others. The
Company confirms that it will rely on its own counsel, accountants and other
similar expert advisors for legal, accounting, tax and other similar
advice.
Section
8. Confidentiality
of Information. Odeon shall use the
Information solely for the purposes of providing services to the Company as
contemplated hereby and will not disclose confidential Information to any third
party other than Odeon’s officers, directors, employees, affiliates, counsel and
other representatives who have a need to know such Information (collectively,
the “Representatives”), except with the prior written
approval of the Company; provided, however, that the foregoing restrictions shall
not apply to any Information that (a) is included in the Offering Materials, (b)
at the time of disclosure to Odeon is already in Odeon’s possession, provided
that such information is not known by Odeon or any of its Representatives, as
the case may be, to be subject to an obligation of confidentiality to the
Company or another person or entity, (c) is or becomes generally available to
the public other than as a result of a disclosure by Odeon or any of its
Representatives in violation hereof, (d) becomes available to Odeon or any of
its Representatives on a non-confidential basis from a source other than the
Company, provided that such source is not known by Odeon to be bound by an
obligation of confidentiality to the Company or another person, (e) Odeon or any
of its Representatives can demonstrate was independently developed by Odeon
without reference to, incorporation of, or other use of any Information or
information from any source that is bound by an obligation of confidentiality to
the Company, or (f) Odeon is required by law, regulation or legal or judicial
process to disclose.
Blackhawk Capital Group BDC,
Inc.
January 24, 2011
Page 6
Section
9. Publicity. Notwithstanding its
engagement as placement agent and advisor hereunder, Odeon may not, without its
prior written consent, be quoted or referred to in any document, release or
communication prepared, issued or transmitted by the Company (including any
entity controlled by, or under common control with, the Company and any
director, officer, employee or agent thereof). In the event of
consummation of any Offering, Odeon shall have the right, at its own expense, to
disclose its participation in such Offering, including, without limitation, the
placement of “tombstone” advertisements in financial and other newspapers and
journals. Odeon agrees that the Company shall have the right to
announce publicly the execution of this Agreement with Odeon subject to Odeon's
prior approval of the contents of such announcement.
Section
10. Representations
and Warranties of Placement Agent. Odeon represents and warrants to the Company
as follows: (a) it is a licensed broker-dealer registered with the
SEC and FINRA and is licensed under FINRA and State securities laws regulations
to sell Shares to QIBS and accredited investors; (b) there are no judgments,
orders, decrees, or like actions, or any proceedings pending, before the SEC,
FINRA, any State, or any court or arbitration panel that prohibit or affect it
from carrying out its obligations under this Agreement; and (c) this Agreement
has been duly authorized and approved by it, does not contravene its
organizational documents or any agreement or order to which it is a party, and
is a legal and valid obligation binding on it.
Section
11. Indemnity
and Contribution. Odeon and the Company have
entered into a separate letter agreement, dated the date hereof, providing for
the indemnification of Odeon by the Company in connection with Odeon’s
engagement hereunder, the terms of which are incorporated into this Agreement in
their entirety.
Section
12. Governing
Law; Jurisdiction. This Agreement is governed by the laws
of the State of New
York, without regard to
such state’s rules concerning conflicts of law, and will be binding upon and
inure to the benefit of the Company and Odeon and their respective successors
and assigns. The Company and Odeon agree to waive trial by jury in
any action, proceeding or counterclaim brought by or on behalf of either party
with respect to any matter whatsoever relating to or arising out of any actual
or proposed transaction or the engagement of or performance by Odeon
hereunder. The Company also hereby submits to the jurisdiction of the
state and federal courts located in New York County, New York in any proceeding
arising out of or relating to this Agreement, agrees not to commence any suit,
action or proceeding relating thereto except in such courts, and waives, to the
fullest extent permitted by law, the right to move to dismiss or transfer any
action brought in such court on the basis of any objection to personal
jurisdiction, venue or inconvenient forum.
Blackhawk Capital Group BDC,
Inc.
January 24, 2011
Page 7
Section
13. Disclosure. Odeon will act under this
Agreement as an independent contractor. The Company acknowledges that Odeon and
its affiliates may have and may in the future have investment banking and other
relationships with parties other than the Company, which parties may have
interests with respect to this placement. Although Odeon in the
course of such other relationships may acquire information about the placement
or potential purchasers of the securities or such other parties, Odeon shall
have no obligation to disclose such information to the Company or to use such
information on behalf of the Company. Furthermore, the Company
acknowledges that Odeon may have fiduciary or other relationships whereby Odeon
may exercise voting power over securities of various persons, which securities
may from time to time include securities of the Company or of potential
purchasers of the securities of the Company or others with interests in respect
of the placement. The Company acknowledges that Odeon may exercise
such powers and otherwise perform its functions in connection with such
fiduciary or other relationships without regard to its relationship to the
Company hereunder.
Please note that Odeon is a full service
securities firm engaged in securities trading and brokerage activities, as well
as providing investment banking, financing and financial advisory
services. In the ordinary course of our trading, brokerage and
financing activities, Odeon or its affiliates may at any time hold long or short
positions, and may trade or otherwise effect transactions, for our own account
or the accounts of customers, in debt or equity securities or senior loans of
the Company.
Section
14. Miscellaneous. In order to coordinate most
effectively the activities of the Company and Odeon contemplated by this
Agreement, both the Company (including management or other officers and
directors of the Company) and Odeon will promptly inform the other of inquiries
of third parties which it receives concerning an Offering. The parties agrees
that their relationship hereunder is an advisory relationship only and nothing
herein shall cause Odeon to be a partner, agent or fiduciary of, or joint
venture partner with, the Company. Nothing in this Agreement is
intended to obligate or commit Odeon or any of its affiliates to provide any
services other than as set out above. This Agreement may be executed
in two or more counterparts, all of which together shall be considered a single
instrument. This Agreement constitutes the entire agreement, and
supersedes all prior agreements and understandings (both written and oral) of
the parties hereto with respect to the subject matter hereof, and cannot be
amended or otherwise modified except in writing executed by the parties
hereto. The provisions hereof shall inure to the benefit of and be
binding upon the successors and assigns of the Company and
Odeon.
[Signature Page to
Follow]
If the foregoing correctly sets forth
the understanding and agreement between Odeon and the Company, please so
indicate in the space provided for that purpose below, together with the
enclosed duplicate original, and return one (1) of these originals to us,
whereupon this letter shall constitute a binding agreement as of the date
hereof.
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Sincerely,
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ODEON CAPITAL GROUP
LLC
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By:
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/s/ Xxxxxx
Xxxxxxxxxxxxx
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Name: Xxxxxx
Xxxxxxxxxxxxx
Title: Managing
Director
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Approved and agreed to as of
January 24, 2011:
BLACKHAWK CAPITAL GROUP BDC,
INC.
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By:
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/s/ Xxxxx X.
Xxxxxx
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Name: Xx. Xxxxx X.
Xxxxxx
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Title: Chief
Executive
Officer
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January 24, 2011
Ladies and
Gentlemen:
In connection with the engagement of
Odeon Capital Group, LLC (“Odeon”), a Delaware limited liability
company, to advise and assist Blackhawk Capital Group BDC, Inc. (the
“Company”) with the subject matter in the letter
agreement dated the date hereof between Odeon and the Company, the Company
agrees that it will indemnify and hold harmless Odeon and its affiliates and
their respective directors, officers, agents and employees and each other person
controlling Odeon or any of Odeon’s affiliates (collectively, the “Indemnified
Parties”), to the full
extent lawful, from and against any losses, expenses, claims or proceedings
(collectively, and whether incurred in connection with any action or proceeding
between an Indemnified Party and the Company or otherwise, “losses”) (i) related to or arising out of (A)
oral or written information provided by the Company, its employees or other
agents, which information either the Company or Odeon provides to any actual or
potential buyers, sellers, investors or offerees, or (B) any other action or
failure to act by the Company, its or their directors, officers, agents or
employees or by Odeon or any Indemnified Party at the Company’s request or with
the Company’s consent, or (ii) otherwise related to or arising out of the
engagement or any transaction or conduct in connection therewith and resulting
primarily from the Company’s negligence, bad faith or willful misconduct, except
that these clauses (i) and (ii) shall not apply with respect to (x) any losses
that are finally judicially determined to have resulted primarily from the gross
negligence or willful misconduct of such Indemnified Party, or (y) any amount
paid in settlement of claims without the Company’s consent, which consent will
not be unreasonably withheld.
In the event that the foregoing
indemnity is unavailable to any Indemnified Party for any reason (other than as a consequence of a final
judicial determination of willful misconduct, bad faith or gross negligence of
such Indemnified Party),
then the Company agrees to contribute to any losses related to or arising out of
the engagement or any transaction or conduct in connection therewith as
follows. With respect to such losses referred to in clause (i) of the
preceding paragraph, the Company and Odeon shall contribute in such proportion
as is appropriate to reflect the relative benefits received (or anticipated to
be received) by Odeon, on the one hand, and by the Company and its security
holders, on the other hand, from the actual or proposed transaction arising in
connection with the engagement. With respect to any other losses, and
for losses referred to in clause (i) of the preceding paragraph if the
allocation provided by the immediately preceding sentence is unavailable for any
reason, the Company and Odeon shall contribute in such proportion as is
appropriate to reflect not only the relative benefits as set forth above, but
also the relative fault of the Company and Odeon in connection with the
statements, omissions or other relevant equitable
considerations. Benefits received (or anticipated to be received) by
the Company and its security holders shall be deemed to be equal to the
aggregate cash consideration and value of securities or any other property
payable, issuable, exchangeable or transferable in such transaction or proposed
transaction, and benefits received by Odeon shall be deemed to be equal to the
compensation paid by the Company to Odeon (whether in cash or otherwise) in
connection with the engagement (exclusive of amounts paid for reimbursement of
expenses or paid under this agreement). Relative fault shall be
determined by reference to, among other things, whether any alleged untrue
statement or omission or any other alleged conduct relates to information
provided by the Company or other conduct by the Company (or its employees or
other agents), on the one hand, or by Odeon, on the other hand. Odeon
and the Company agree that it would not be just and equitable if contribution
were determined by pro rata allocation or by any other method of allocation that
does not take account of the equitable considerations referred to
above. Notwithstanding anything to the contrary above, in no event
shall Odeon be responsible for any amounts in excess of the amount of the
compensation actually paid by the Company to Odeon (in cash or otherwise) in
connection with the engagement (exclusive of amounts paid for reimbursement of
expenses or paid under this agreement).
Promptly
after Odeon receives notice of the commencement of any action or other
proceeding in respect of which
indemnification or reimbursement may be sought hereunder, Odeon will notify the
Company thereof; but the omission so to notify the Company shall not relieve the
Company from any obligation hereunder unless, and only to the extent that, such
omission results in its forfeiture of substantive rights or
defenses. If any such action or other proceeding shall be brought
against any Indemnified Party, the Company shall, upon written notice given
reasonably promptly following Odeon’s notice to the Company of such action or
proceeding, be entitled to assume the defense thereof at its expense with
counsel chosen by the Company and reasonably satisfactory to the Indemnified
Parties; provided, however, that any Indemnified Party may at its own expense
retain separate counsel to participate in such
defense. Notwithstanding the foregoing, such Indemnified Party shall
have the right to employ separate counsel at the Company’s expense and to
control its own defense of such action or proceeding if, in the reasonable
opinion of counsel to such Indemnified Party, (i) there are legal defenses
available to such Indemnified Party or to other indemnified parties that are
different from or additional to those available to the Company, or (ii) a
conflict or likely conflict exists between the Company and such Indemnified
Party that would make such separate representation advisable; provided, however,
that in no event shall the Company be required to pay fees and expenses under
this indemnity for more than one counsel in any one legal action or group of
related legal actions. The Company agrees that it will not, without
the prior written consent of Odeon, which consent shall not be unreasonably
withheld or delayed, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding relating to
the matters that are the subject of Odeon’s engagement (whether or not any
Indemnified Party is a party thereto) unless such settlement, compromise or
consent includes an unconditional release of Odeon and each other Indemnified
Party from all liability arising or that may arise out of such claim, action or
proceeding.
The Company further agrees that no
Indemnified Party shall have any liability (whether direct or indirect, in
contract or tort or otherwise) to the Company or any of its affiliates,
creditors or security holders for or in connection with the engagement or any
actual or proposed transactions or other conduct in connection therewith except
for losses incurred by the Company that are finally judicially determined to
have resulted primarily from the gross negligence or willful misconduct of such
Indemnified Party or have resulted from a breach of the engagement between the
Company and Odeon.
The foregoing agreement is in addition
to any rights Odeon may have at common law or otherwise and shall be binding on
and inure to the benefit of any successors, assigns, and personal
representatives of the Company and each Indemnified Party. This
agreement is governed by the laws of the State of New York, without regard to such state’s rules
concerning conflicts of laws. Each of the parties hereto also hereby
submits to the jurisdiction of the state and federal courts located in New York
County, New York in any proceeding arising out of or relating to this agreement,
agrees not to commence any suit, action or proceeding relating hereto except in
such courts, and waives, to the fullest extent permitted by law, the right to
move to dismiss or transfer any action brought in such court on the basis of any
objection to personal jurisdiction, venue or inconvenient
forum. Solely for purposes of enforcing this agreement, each party
hereby consents to personal jurisdiction, service of process and venue in any
court in which any claim or proceeding that is subject to this agreement is
brought against the other party. Any right to trial by jury with
respect to any claim or proceeding related to or arising out of the engagement,
or any transaction or conduct in connection therewith or this agreement is
waived.
If any provision contained in this
agreement or the application of any provision hereof to any person or
circumstances is held by a court of competent jurisdiction or other authority to
be invalid, void, unenforceable or against regulatory policy, the remainder of
this agreement and the application of such provision to other persons or
circumstances shall not be affected, impaired or invalidated, and shall remain
in full force and effect, unless the provision held invalid, void, unenforceable
or against regulatory policy shall substantially impair the benefits of the
remaining portions of this agreement.
[Signature Page to
Follow]
This agreement shall remain in full
force and effect notwithstanding the completion or termination of the
engagement.
|
BLACKHAWK CAPITAL GROUP BDC,
INC.
|
|||
|
By:
|
/s/ Xxxxx X.
Xxxxxx
|
||
|
Name: Xx. Xxxxx X.
Xxxxxx
|
|||
|
Title: Chief
Executive
Officer
|
|||
Agreed:
|
ODEON CAPITAL GROUP
LLC
|
||
|
By:
|
/s/ Xxxxxx
Xxxxxxxxxxxxx
|
|
|
Name: Xxxxxx
Xxxxxxxxxxxxx
|
||
|
Title: Managing
Director
|
||
