FINANCIAL ADVISORY AGREEMENT, 컨설턴트 계약서, 영문계약서

FINANCIAL ADVISORY AGREEMENT

 

[AAA Bank]

[BBB Corporation]

[CCC Bank]

C/o The AAA Bank

                ,

[Address]

 

Attention : [•]

 

 

[DDD Co., Ltd.]

                ,

[Address]

 

Attention : [•]

 

Dear Sirs :

 

This Letter Agreement confirms our understanding that the [AAA] Bank, [BBB] Corporation and [CCC] Bank(collectively, the “Selling Shareholders”) and [DDD] Co., Ltd. (the “Company” and, collectively with the Selling Shareholders, the “Clients”) have engaged [EEE], (“[EEE]” or “we”), to act as their exclusive financial advisor with respect to the Transaction (as defined below).

 

As part of our engagement, we will, if appropriate and if requested by the Clients :

 

(a)         assist in analyzing and evaluating the business, operations and financial position of the Company ;

 

(b)         assist with the preparation of the offering memorandum(s) for distribution and presentation to potential purchasers ;

 

(c)         assist in the preparation and implementation of a marketing plan ;

 

(d)         assist in the screening of interested potential purchasers ;

 

(e)         assist in coordinating the data room and with potential purchasers’ due diligence investigations ;

 

(f)         assist in evaluating proposals received from potential purchasers ;

 

(g)         assist in structuring and negotiating the Transaction ;

 

(h)         assist in analyzing and implementing, if desired or necessary, a reorganization of the Company as a holding company with operating subsidiaries organized along various business lines ;

 

(i)          advise and assist the Clients with respect to such other matters as Clients deem necessary for the Transaction ; and

 

(j)          be available at your request to meet with the Board of Directors of each of the Clients to discuss the Transaction and its financial implications.

 

In connection with [EEE]’s engagement, the Company will furnish [EEE] with all information concerning the Company which [EEE] reasonably deems appropriate and will provide [EEE] with access to the officers, directors, employees, accountants, counsel and other representatives of the Company and its subsidiaries (collectively, the “Representatives”), it being understood that [EEE] will rely solely upon such information supplied by the Company, its subsidiaries and their respective Representatives without assuming any responsibility for independent investigation or verification thereof. All non-public information concerning the Company and its subsidiaries which is given to [EEE] will be used solely in the course of the performance of our services hereunder and will be treated as strictly confidential for so long as it will be treated as strictly confidential for so long as it will be made public by the Clients. Except as otherwise required by law, [EEE] shall not disclose this information to a third party, including the directors, officers, partners, agents and employees of [EEE] and its affiliates who are not directly related with the Transaction (collectively “Non-related Persons”) without prior written consent of the Clients.

 

The Clients understand that [EEE] and its associated companies are engaged in securities trading, securities brokerage and financing activities, as well as providing investment banking and financial advisory services. In the ordinary course of their trading, brokerage and financing activities, [EEE] and its associated companies may at any time hold long or short positions, and may trade or otherwise effect transactions, for their own accounts or the accounts of their clients, in debt or equity securities or loans of any company that may be involved in the Transaction. The Clients hereby acknowledge and agree that, by reason of law or duties of confidentially owed to other persons or the rules of any regulatory authority, [EEE] and its associated companies may be prohibited from disclosing information to the Clients (or such disclosure may be inappropriate), in particular, information as to [EEE]’s or its associated companies’ possible interests as described in this paragraph. The Clients also acknowledge that [EEE] or an affiliate may be providing financing or other services to parties whose interests may conflict with those of the Company. However, consistent with its long-standing policy to hold in confidence the affairs of its clients, [EEE] shall not, except as otherwise required by law, to any Non-related Person without prior written consent of the Clients or use such information for any purpose other than consummating the Transaction and performing our obligations hereunder.

 

As compensation for our services hereunder, the Selling Shareholders jointly and severally agree to pay [EEE] as follows :

(1)         A financial advisory fee of US$ [•] per month, payable in advance, but refundable for the unserviced and uncommitted days against [•] days a month, if the serviced days are less than [•] days a month (the “Financial Advisory Fee”). The Financial Advisory Fee will be fully creditable, to the extent paid, against the Transaction Fee (as defined below) ;

 

(2)         A transaction fee which is calculated in accordance with the table below based on Aggregate Consideration (as defined below) and payable on the closing of the Transaction (the “Transaction Fee”) :

 

Aggregate Consideration                Fee Percentage

 

 Up to US$ [•]                            [•] %

 Up to US$ [•]                            [•] %

 Up to US$ [•]                            [•] %

 

  For an Aggregate Consideration falling between the amounts indicated above, the Transaction Fee shall be calculated according to a linear interpolation of the nearest fee percentages indicated above ; and

 

(3)         Reimbursement of out-of-pocket expenses, including the fees and expenses of legal counsel, if any, and any other advisor retained by [EEE] subject to prior written approval of the Selling Shareholders, resulting from or arising out of this engagement.

 

All fees and expenses payable hereunder are net of all applicable withholding and similar taxes.

 

For purposes of this Agreement, the term “Transaction” shall be defined to include the sale (whether in one or a series of transactions) of part or all of the capital stock or assets of the Company or any subsidiary of the Company, as well as any recapitalization, restructuring or liquidation of the Company by the current owners, a third party or any combination thereof, or any other form of disposition which results in the effective sale of part or all of the principal businesses and operations of the Company by the current owners or by the Company.

 

Also for purposes of this Agreement, the term “Aggregate Consideration” shall mean the total fair market value (at the time of closing or each respective closings, as the case may be) of all consideration (including cash, securities, property, all debt remaining on the financial statements of the Company or any of its subsidiaries at closing and other indebtedness and obligations assumed by the purchaser or purchasers and any other form of consideration) paid or payable, or otherwise to be distributed, directly or indirectly, to the Company or the Company’s shareholders in connection with the Transaction.

 

No advice rendered by [EEE], whether formal or informal, may be disclosed, in whole or in part, or summarized, excerpted from or otherwise referred to without our prior written consent. In addition, [EEE] may not be otherwise referred to without its prior written consent. If requested by [EEE], the Company shall include a mutually acceptable reference to [EEE] in any press release or other public announcement made by the Company regarding the matters described in this letter.

Since [EEE] will be action on behalf of the Company in connection with its engagement hereunder, the clients have entered into a separate letter agreement, dated the date hereof, providing for the indemnification by the Clients of [EEE] and certain related persons and entities.

 

 

The Clients further understand that if [EEE] is asked to act for the Clients in any other formal additional capacity relating to this engagement but not specifically addressed in this letter, then such activities shall constitute separate engagements and the terms and conditions of any such additional engagements will be embodied in one or more separate written agreements, containing provisions and terms to be mutually agreed upon, including without limitation appropriate indemnification provisions. The indemnity provisions in the separate letter agreement referred to above shall apply to any such additional engagements, unless superseded by an indemnity such additional engagements, and shall remain in full force and effect regardless of any completion, modification or termination of [EEE]’s engagement(s).

 

[EEE]’s engagement hereunder may be terminated at any time, with or without cause, by the Clients or by [EEE] upon [•] days’ prior written notice thereof to the other party or parties; provided, however, that in the event of any termination of [EEE]’s engagement hereunder, a Transaction is consummated and an agreement to effect a Transaction is entered into by and between the Company and the other party, who belongs to the group of potential purchasers arranged and solicited by [EEE] within [•] years of such termination; provided, further, that no termination of [EEE]’s obligations to pay the Financial Advisory Fee, other fees and expenses to the extent provided for herein, and to indemnify [EEE] and certain related persons and entities as provided in the separate letter agreement referred to above.

 

In connection with this engagement, [EEE] is acting as an independent contractor and not in any other capacity, with duties owing solely to the Clients. All aspects of the relationship created by this Agreement shall be governed by and construed in accordance with the laws of [Name of the Country] applicable to contracts made and to be performed therein and each party hereto agrees to submit to the non-exclusive jurisdiction of [•] Court.

 

The [AAA] Bank hereby represents and warrants that it is the duly attorney-in-fact for each of [BBB] Corporation and [CCC] Bank for the purpose of this Agreement and the transactions contemplated hereby.

We have duly accepted this engagement and look forward to working with you on this Agreement. Please confirm that the foregoing is in accordance with your understanding by signing and returning to us the enclosed duplicate of this Agreement.

 

 

Very truly yours,

 

[EEE]

 

By :                       

Name : [•]

Title : [•]

 

 

Accepted and agreed to as of the date first written above:

 

[AAA BANK]

 

By :                        

Name : [•]

Title : [•]

 

 

[BBB CORPORATION]

[CCC BANK]

 

BY: THE [AAA] BANK,

        As Attorney-in-Fact

 

By :                          

Name : [•]

Title : [•]

 

 

[DDD CO., LTD.]

 

By :                          

Name : [•]

Title : [•]

 

 

 

TO: [EEE]                                                       [DATE]

                             ,

 

  In connection with your engagement (the “Engagement”) to advise and assist us with the Transaction (as defined in the Engagement Letter among the parties hereto dated the date hereof), the undersigned jointly and severally agree to indemnify and hold harmless [EEE], [•] BRANCH (“[EEE]” of “you”), and its affiliates, the respective directors, and its affiliates, the respective directors, officers, partners, agents and employees of [EEE] and its affiliates, and each other person, if any, controlling [EEE] or any of its affiliates (collectively, “Indemnified Persons”), from and against, and we agree that no Indemnified person shall have any liability to us or our owners, partners, affiliates, security holders or creditors for, any losses, claims, damages or liabilities (including actions or proceedings in respect thereof) (collectively “Losses”) (A) related to or arising out of ( i ) our actions or failures to act (including statements or omissions  made, or information provided, by us or our agents) or ( ii ) actions or failures to act by an Indemnified Person with our consent or in reliance on our actions or failures to act, or (B) otherwise related to or arising out of the Engagement or your performance thereof, except that this clause (B) shall not apply to any Losses that have resulted primarily from your bad faith or gross negligence.

 

To the extent permitted by applicable law, the Indemnified Persons shall not be responsible for amounts which in the aggregate are in excess of the amount of all fees actually received by you from us in connection with the Engagement.

 

YOU HEREBY AGREE, AND WE HEREBY AGREE ON OUR OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF OUR SECURITY HOLDERS, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTER-CLAIM OR ACTION ARISING OUT OF THE ENGAGEMENT, YOUR PERFORMANCE THEREOF OR THIS AGREEMENT.

 

The provisions of this Agreement shall apply to the Engagement (including related activities prior to the date hereof) and any modification thereof and shall remain in full force and effect regardless of the completion or termination of the engagement. This Agreement and any other agreements relating to the Engagement shall be governed by and construed in accordance with the laws of [Name of the Country], without regard to conflicts of law principles.

 

 

Very truly yours,

 

[AAA BANK]

 

By:                               

Name : [•]

Title : [•]

 

 

[BBB CORPORATION]

[CCC BANK]

 

BY : THE AAA BANK,

      As Attorney-in-Fact

 

By :                              

Name : [•]

Title : [•]

 

 

[DDD CO., LTD.]

 

By :                              

Name : [•]

Title : [•]

 

 

Accepted and agreed to as of the date hereof:

 

[EEE]

 

By :                              

Name : [•]

Title : [•]

 

6 Financial Advisory Agreement.doc