Unassociated Document


    


     

    Exhibit
10.2

     

     

    March 13,
2009

     

    Mr. Harry
Edelson

    Chief
Executive Officer

    China
Opportunity Acquisition Corp.

    300 Tice
Boulevard

    Woodcliff
Lake, NJ 07677

    


    Dear Mr.
Edelson:

    


    Chardan
Capital Markets, LLC (“Chardan”) is pleased
to act as a financial advisor to China Opportunity Acquisition Corp. (the “Company”) in
connection, SPAC closing services (the “Advisory Services”)
with respect to a transaction or related series or combination of transactions
involving a purchase of assets or outstanding stock (or securities convertible
into stock) or a merger, acquisition or other business combination, including a
recapitalization, a consolidation or a joint venture: in the nature of an
acquisition (any or all of the foregoing, a “Transaction”). This letter
agreement (the “Agreement”) sets
forth the terms of our engagement.

     

    1. Term, etc. The
term (the “Term”) of this
Agreement shall commence on the date hereof and shall continue through March 20,
2009. During the term, the Company shall notify Chardan immediately of any
contacts with third parties with respect to the proposed Advisory Services.
Notwithstanding anything to the contrary contained herein. the provisions
concerning fees, unpaid fees, expenses, confidentiality, indemnification and
contribution contained herein will survive any expiration or termination of this
Agreement.

     

    2. Fees. The Company
shall pay to Chardan a $150,000.00 (One Hundred and Fifty Thousand Dollars) cash
fee within three clays after the vote approving the merger by more than 60% of
the total votes for the SPAC closing services. Such fee shall be payable by wire
transfer or check acceptable to Chardan.

     

    3. Expenses. The Company
hereby agrees to reimburse Chardan for reasonable travel and other out-of-pocket
expenses incurred in connection with Chardan’s engagement, including the
reasonable fees and expenses of Chardan’s counsel, up to a maximum amount of
$10,000.

     

    4. Use of Information.
The Company will furnish Chardan such written information as Chardan reasonably
requests in connection with the performance of its services hereunder. The
Company understands. acknowledges and agrees that, in performing its services
hereunder, Chardan will use and rely entirely upon such information as well as
publicly available information regarding the Company and other potential parties
to a Transaction and that Chardan does not assume responsibility for independent
verification of the accuracy or completeness of any information, whether
publicly available or otherwise furnished to it, concerning the Company or
otherwise relevant to a Transaction, including, without limitation, any
financial information, forecasts or projections considered by Chardan in
connection with the provision of its services.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    5. Confidentiality and
Publicity. In the event of the consummation or public announcement of any
Transaction, Chardan shall have the right (i) to review and comments on the text
of any such announcement, , and (ii) to disclose its participation in such
Transaction, including, without limitation, the placement at its cost of
“tombstone” advertisements in financial and other newspapers and journals.Any
press release issued by the Company with respect to the consummation of a
Transaction shall refer to Chardan as the Company’s special advisor with respect
to such “Transaction. The parties hereto have executed or will execute a
confidentiality agreement (the “NDA”) which will survive the execution of this
Agreement.

     

    6. Indemnity.

     

    (a) In
connection with the Company’s engagement of Chardan as its financial advisor,
the Company hereby agrees to indemnify and hold harmless Chardan and its
Affiliates, and the respective controlling persons, directors, officers,
shareholders, agents and employees of any of (lie foregoing (collectively the
“Indemnified Persons”), from and against any and all claims, actions, suits,
proceedings (including those of shareholders). damages, liabilities and
reasonable expenses incurred by any of them, including the reasonable fees and
expenses of one counsel to all such parties (collectively a “Claim”), as
incurred, which are (i) related to or arise out of (a) any actions taken or
omitted to be taken (including any untrue statements made or any statements
omitted to be made) by the Company, or (b) any actions taken or omitted to be
taken by any Indemnified Person in connection with the Company’s engagement of
Chardan, or (ii) otherwise relate to or arise out of Chardan’s activities on the
Company’s behalf under Chardan’s engagement. and the Company shall reimburse any
Indemnified Person for all expenses, as incurred, (including the reasonable fees
and expenses of such counsel) incurred by such Indemnified Person in connection
with investigating, preparing or defending any such Claim, action, suit or
proceeding, whether or not in connection with pending or threatened litigation
in which any Indemnified Person is a party. The Company will not, however, be
responsible for any Claim, which is finally judicially determined to have
resulted from the gross negligence or willful misconduct of any person seeking
indemnification for such Claim. The Company further agrees that no Indemnified
Person shall have any liability to the Company for or in connection with the
Company’s engagement of Chardan except for any Claim incurred by the Company as
a result of such Indemnified Person’s gross negligence or willful
misconduct.

     

    (b) The
Company further agrees that it will not, without the prior written consent of
Chardan, settle, compromise or consent to the entry of any judgment in any
pending or threatened Claim in respect of which indemnification may be sought
hereunder (whether or not any Indemnified Person is an actual or potential party
to such Claim), unless such settlement, compromise or consent includes an
unconditional, irrevocable release of each Indemnified Person from any and all
liability arising out of such Claim.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    (c) Promptly
upon receipt by an Indemnified Person of notice of any complaint or the
assertion or institution of any Claim with respect to which indemnification is
being sought hereunder, such Indemnified Person shall notify the Company in
writing of such complaint or of such assertion or institution, but failure to so
notify the Company shall not relieve the Company from any obligation it may have
hereunder, except and only to the extent such failure results in the forfeiture
by the Company of substantial rights and defenses. If the Company so elects or
is requested by such Indemnified Person, the Company will assume the defense of
such Claim, including the employment of counsel reasonably satisfactory to such
Indemnified Person and the payment of the reasonable fees and expenses of such
counsel. In the event, however, that legal counsel to such Indemnified Person
reasonably determines that having common counsel would present such counsel with
a conflict of interest or if the defendant in, or target of, any such Claim,
includes an Indemnified Person and the Company, and legal counsel to such
Indemnified Person reasonably concludes that there may be legal defenses
available to it or other Indemnified Persons different from or in addition to
those available to the Company, then such Indemnified Person may employ its own
separate counsel to represent or defend him, her or it in any such Claim and the
Company shall pay the reasonable fees and expenses of such counsel.
Notwithstanding anything herein to the contrary, if the Company fails timely or
diligently to defend, contest, or otherwise protect against any Claim, the
relevant Indemnified Party shall have the right, but not the obligation, to
defend, contest, compromise, settle, assert crossclaims, or counterclaims or
otherwise protect against the same, and shall be fully indemnified by the
Company therefor, including without limitation, for the reasonable fees and
expenses of its counsel and all amounts paid as a result of such Claim or the
compromise or settlement thereof. In addition, with respect to any Claim in
which the Company assumes the defense, the Indemnified Person shall have the
right to participate in such Claim and to retain his, her or its own counsel
therefor at his, her or its own expense.

     

    (d) The
Company agrees that if any indemnity sought by an Indemnified Person hereunder
is held by a court to be unavailable for any reason then (whether or not Chardan
is the Indemnified Person), the Company and Chardan shall contribute to the
Claim for which such indemnity is held unavailable in such proportion as is
appropriate to reflect the relative benefits to the Company, on the one hand,
and Chardan on the other, in connection with Chardan’s engagement referred to
above, subject to the limitation that in no event shall the amount of Chardan’s
contribution to such Claim exceed the amount of fees actually received by
Chardan from the Company pursuant to Chardan’s engagement. The Company hereby
agrees that the relative benefits to the Company, on the one hand, and Chardan
on the other, with respect to Chardan’s engagement shall be deemed to be in the
same proportion as (a) the total value paid or proposed to be paid or received
by the Company or its stockholders as the case may be, pursuant to the
Transaction (whether or not consummated) for which Chardan is engaged to render
services bears to (b) the fee paid or proposed to be paid to Chardan in
connection with such engagement.

     

    (e) The
Company’s indemnity, reimbursement and contribution obligations under this
Agreement (a) shall be in addition to, and shall in no way limit or otherwise
adversely affect any rights that any Indemnified Party may have at law or at
equity and (b) shall be effective whether or not the Company is at fault in ally
way,

     

    7. Limitation of Engagement to
the Company. The parties hereto acknowledge that Chardan has been
retained solely as an advisor to the Company, and not as an agent of the
Company, and that the Company’s engagement of Chardan is as an independent
contractor and not in any fiduciary or other capacity. Neither this engagement,
nor the delivery of any advice in connection with this engagement, is intended
to confer rights upon any persons not a party hereto.  Chardan shall
not have the authority to make any commitment binding on the
Company.  The Company, in its sole discretion, shall have the right to
reject any Transaction introduced to it by Chardan.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    8. Limitation of Chardan’s
Liability to the
Company.                                                                                                           Chardan
and the Company further agree that neither Chardan nor any of its affiliates or
any of their respective officers, directors, controlling persons (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act),
employees or agents shall have any liability to the Company, its security
holders or creditors, or any person asserting claims on behalf of or in the
right of the Company (whether direct or indirect, in contract, tort, for an act
of negligence or otherwise) for any losses, fee, damages, liabilities, costs,
expenses or equitable rclief arising out of or relating to this Agreement or the
services rendered hereunder, except for losses, fees, damages, liabilities,
costs or expenses that arise out of or are based on any action of or failure to
act by Chardan and that are finally judicially determined to have resulted
solely from the gross negligence or willful misconduct of Chardan.

     

    9. Governing Law; Costs.
This Agreement shall be governed by and construed in accordance with the laws of
the State of New York applicable to agreements made and to be fully performed
therein. Any disputes which arise under this Agreement will be heard only in the
state or federal courts located in the City of New York, State of New York. The
parties hereto expressly agree to submit themselves to the jurisdiction of the
foregoing courts in the City of New York, State of New York. The parties hereto
expressly waive any rights they may have to contest the jurisdiction, venue or
authority of any court sitting in the City and State of New York.  In
the event of the bringing of any action, proceeding or suit by a party hereto
against the other party hereto, arising out of or relating to this Agreement,
the party in whose favor the final judgment or award shall be entered shall be
entitled to have and recover from the other party the costs and expenses
incurred in connection therewith, including its reasonable attorneys’ fees. Any
rights to trial by jury with respect to any such action, proceeding or suit are
hereby waived by Chardan and the Company.

     

    10. Notices. All notices
hereunder will be in writing and sent by certified mail, hand delivery,
overnight delivery or fax, if sent to Chardan, to Chardan Capital Markets, LLC,
17 State Street, 16th Floor, New York, NY 10004, fax number (646) 465-9091,
Attention: General Counsel, and if sent to the Company, to the address set forth
on the first page, fax number________, Attention: __________.  Notices
sent by certified mail shall be deemed received five days thereafter, notices
sent by hand delivery or overnight delivery shall be deemed received on the date
of the relevant written record of receipt, and notices delivered by fax shall be
deemed received as of the date and time printed thereon by the fax
machine.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    11. Waiver of Any Rights to the
Trust Fund. Chardan agrees that, notwithstanding anything to the contrary
in this Agreement, it does not now have, and shall not at any time prior to the
Closing have, any rights, title, interest or claim of any kind in or to, or make
any claim of any kind against, monies held in the Trust Fund, regardless of
whether such claim arises as a result of, in connection with or relating in any
way to, the business relationship between Chardan, on the one hand, and the
Company, on the other hand, this Agreement, or any other agreement or any other
matter, and regardless of whether such claim arises based on contract, tort,
equity or any other theory of legal liability (any and all such claims are
collectively referred to in this Section 15 as the “Trust Claims”).
Notwithstanding anything to the contrary in this Agreement, Chardan hereby
irrevocably waives any Trust Claim it may have, now or in the future, and will
not seek recourse against, the Trust Fund for any reason whatsoever in respect
thereof. In the event that Chardan or any of its Affiliates commences any action
or proceeding based upon, in connection with, relating to or arising out of any
matter relating to the Company, which proceeding seeks, in whole or in part,
relief against the Trust Fund or the public: stockholders of the Company for
money damages, the Company shall be entitled to recover from Chardan the
associated legal fees and costs in connection with any such action, in the event
the Company prevails in such action or proceeding­

     

    12. Miscellaneous. This
Agreement shall not be modified or amended except in writing signed by Chardan
and the Company. This Agreement shall be binding upon and inure to the benefit
of both Chardan and the Company and their respective assigns, successors, and
legal representatives. This Agreement (along with the NDA, if any) and the Form
of Vendor Letter attached hereto constitute the entire agreement of Chardan and
the Company with respect to the subject matter hereof and supersede any prior
agreements. 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, and the remainder of the Agreement shall remain in full
force and effect. This Agreement may be executed in counterparts (including
facsimile  counterparts), each of which shall be deemed an original
but all of which together shall constitute one and the same
instrument.

     

    In
acknowledgment that the foregoing correctly sets forth the understanding reached
by Chardan and the Company, please sign in the space provided below, whereupon
this letter shall constitute a binding, Agreement as of the date indicated
above.

     

    
      
        	 	      
                Very
      truly yours,

                 

                CHARDAN
      CAPITAL MARKETS, LLC

              	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/ 	 
	 	 	Name:
      Kerry Proppcr	 
	 	 	Title:
      Chief Executive Officer	 
	 	 	 	 


      

    

    Accepted
and Agreed to as of

    the date
first written above:

     

    
      
        
          	CHINA
      OPPORTUNITY ACQUISITION CORP.	 
	 	 	 
	
                  By:
      

                	/s/ 	 
	 	Name:
      Harry Edelson	 
	 	Title:
      Chief Executive Officer