General terms of business
Fees include normal office overheads, but exclude items directly attributable to the engagement, such as reprographic costs for reports, and any other such expenses, which will be charged at cost. Travel, hotel and other subsistence expenses associated with travelling to the Company’s premises, or for meetings with the Company, or with potential parties to a transaction with the Company, or for other purposes associated with carrying out the engagement, will be charged additionally, at cost. They will be invoiced periodically or as incurred. These expenses shall be approved by the Company should they exceed EUR 500.
Also excluded from THE ADVISOR’s fees are accountants’, auditors’, legal and other professional advisers’ fees associated with the preparation for and execution of any transaction. These fees are payable by the Company or, if the Company cannot pay these fees in accordance with applicable law, by the shareholder(s) in the Company. THE ADVISOR may commission additional work for the Company, or additional work associated with the engagement, when this is agreed in writing (which includes e-mail), and will pass on charges at cost. Where additional work comprises the provision of independent legal advice to THE ADVISOR in conjunction with the engagement, such agreement shall not be unreasonably withheld. THE ADVISOR may request payment in advance for externally commissioned work.
The Company acknowledges that it is not relying on the advice of THE ADVISOR for tax, legal or accounting matters, it is seeking and will rely on the advice of its own professionals and advisors for such matters and it will make an independent analysis and decision regarding any transaction based upon such advice.
The Company acknowledges that THE ADVISOR has been retained solely as an adviser to the Company, and not as an adviser to or agent of any other person, and the Company’s engagement of THE ADVISOR is as an independent contractor and not in any other capacity including as a fiduciary.
The Company acknowledges that THE ADVISOR only renders advice to undertakings on capital structure, industrial strategy and related matters and advice and services relating to mergers and the purchase of undertakings, as set out in Annex I, Section B, no. 3, to Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 (MiFID II) and other activities for which no licenses, authorisations or permits by financial regulators are required. Accordingly, the Company acknowledges that THE ADVISOR is not a regulated company subject to the licensing by or supervision of the Danish Financial Supervisory Authority or subject to any applicable financial regulatory laws.
The Company is responsible for the content, accuracy and completeness of all information supplied to THE ADVISOR, including the content, accuracy and completeness of any commercial assumptions, which may influence advice supplied by THE ADVISOR. The Company acknowledges that THE ADVISOR is not responsible for determining the scope of or reviewing any due diligence exercise.
THE ADVISOR has the right to suspend or terminate activity and/or terminate the Agreement with immediate effect if the Company has suspended its payments, goes into liquidation, becomes insolvent, is declared bankrupt, goes into administration, or files for protection from creditors. In such circumstances, THE ADVISOR may immediately invoice for all fees and expenses due.
All quotations and fee amounts specified are exclusive of VAT, sales or any applicable taxes. Amounts payable to THE ADVISOR will include any applicable taxes.
Payment is due 15 days from receipt of invoice unless otherwise specified in the Agreement.
THE ADVISOR will exercise normal good practice in maintaining the confidentiality of material supplied in confidence by the Company. THE ADVISOR will enter into a Non-Disclosure Agreement to further specify this responsibility, if required.
Execution of work and time period of Agreement
All work related to or in support of transactions is carried out strictly on a “best efforts” basis. There will be reasonable extension of delivery times, and reasonable extension of any time period specified in the Agreement, if a delay occurs owing to failure by the Company promptly to provide THE ADVISOR with such information and materials as are necessary to carry out the engagement, or if the Company requests or agrees to any delay in the process of the engagement.
THE ADVISOR is not liable for damages if it has acted with the reasonable prudence to be expected from an advisor providing the advisory services covered by this Agreement. In any event, any liability of THE ADVISOR shall be (i) limited to the direct, documented loss incurred by the Company as a direct result of THE ADVISOR having failed to act with reasonable prudence to be expected from an advisor providing the advisory services covered by this Agreement and (ii) capped at the total fees that have been paid by the Company to THE ADVISOR under this Agreement. THE ADVISOR is under no circumstances liable for indirect consequential or similar damages or losses, including but not limited to any loss of income or goodwill, opportunity costs, loss of data, reputational damage or similar.
The Company may raise claims against THE ADVISOR only and not against any member, director, officer, employee or agent of THE ADVISOR individually.
In connection with this Agreement, the Company undertakes towards THE ADVISOR that if any of THE ADVISOR, its affiliates, the respective members, directors, officers, agents and employees of THE ADVISOR and its affiliates and each other person, if any, controlling THE ADVISOR or its affiliates incurs any liability, claim, damages, cost, loss or expense (including, without limitation, legal fees, costs and expenses) (a “Loss”) arising out of, in connection with or based on the engagement covered by this Agreement, the Company shall pay to THE ADVISOR on demand an amount equal to such Loss, provided that the relevant Loss is not finally judicially determined to have resulted primarily from the bad faith or gross negligence of THE ADVISOR or such persons.
Without prejudice to any claim the Company may have against THE ADVISOR, no proceedings may be taken against any member, director, officer, employee or agent of THE ADVISOR or any of its affiliates in respect of any claim the Company may have against THE ADVISOR or any of its affiliates.
If such a situation should occur whereby THE ADVISOR, due to political unrest, blockade, strike, riot or civil commotion, war, terrorism, breakdown of public communications or information channels, breakdown of transportation channels, changes in legislation or political conditions, or other major obstacle beyond the reasonable control of THE ADVISOR, cannot fulfill its commitments under this Agreement according to the terms of the Agreement, THE ADVISOR is not liable for any resulting damage, and is entitled to reasonable extension of any delivery time, and reasonable extension of any time period specified in the Agreement, or the right to terminate the contract and charge the Company for the work that has been completed to the benefit of the Company.