[SENESCO LETTERHEAD]
November 28, 2003
Xxxxxxx X. Xxxxx, President
Sands Brothers International, Ltd.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxx, Senior Vice President
Investment Banking/Capital Markets
Stanford Group Company
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Dear Sirs:
This letter agreement (this "Agreement") confirms our understanding that
each of the undersigned, Sands Brothers International, Ltd. ("Sands") and
Stanford Group Company ("Stanford") (Sands and Stanford are referred to herein
individually as a "Finder" and collectively as the "Finders"), have been engaged
by Senesco Technologies, Inc. (the "Company"), to act as co-managing finders in
connection with a private offering and sale of the Company's common stock, $0.01
par value per share (the "Common Stock"), and warrants to purchase shares of
Common Stock (the "Warrants"), having an aggregate offering amount of a minimum
of $3,000,000 and a maximum of $3,500,000, with an overallotment option of
$1,000,000, exercisable at the sole discretion of the Company (the "Offering").
1. Services.
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1.1 The Finders shall use their reasonable commercial efforts to introduce
the Company to qualified institutional buyers and accredited investors (referred
to herein as a "Purchaser" or collectively, the "Purchasers"), which may
purchase Common Stock and Warrants of the Company (the "Securities"), on the
following terms and conditions (a "Transaction"):
(a) Common Stock, offered at a 25% discount to the Company's public
market price, which shall be calculated by computing the volume-weighted average
closing price of the Common Stock for a period of ten days prior to the date
upon which all parties hereto have executed this Agreement (the "ten-day VWAP");
and
(b) Warrants to purchase shares of Common Stock in an amount
equivalent to 35% of the number of shares of Common Stock issued to the
Purchaser, with a term of five (5) years and immediately exercisable at an
exercise price of 120% of the ten-day VWAP.
1.2 All services provided by the Finders under this Agreement shall be at
the Finders' cost and risk. The Finders' sole compensation, if any, shall be the
compensation as set forth in Section 3 below.
1.3 The Company acknowledges that the Finders' responsibilities shall be
limited to the foregoing, and that the Finders (i) shall have no authority to
enter into any Transaction with a Purchaser, (ii) shall have no responsibility
to participate or assist in any negotiations between any potential Purchaser and
the Company, and (iii) shall have no responsibility for fulfilling any reporting
or filing requirements of the Company pursuant to applicable federal and state
securities laws. In addition, the Company expressly acknowledges and agrees that
the Finders' obligations hereunder are on a reasonable commercial efforts basis
only and that the execution of this Agreement does not constitute a commitment
by the Finders to purchase the Securities or any other securities of the Company
and does not ensure the successful sale of the Securities.
1.4 Notwithstanding anything in this Agreement to the contrary, the
Company shall have the sole and absolute discretion to accept or not accept the
terms of any Transaction. Neither the Company nor any of its affiliates shall
have any liability whatsoever to the Finders or any other person or entity
resulting from its decision not to enter into a proposed Transaction, regardless
of the terms of the proposed Transaction.
2. Term and Termination.
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2.1 This Agreement shall take effect as of the date written below,
provided that it is executed by the Finders and delivered to the Company
pursuant to Section 9 below, and shall continue until the earlier of (i) the
date of the closing of the Offering or (ii) December 31, 2003. Thereafter, this
Agreement may be extended in writing at the election of the Company.
2.2 This Agreement may be terminated:
(a) By a Finder, but only with respect to such Finder,
(i) without cause, upon thirty (30) days' written notice of
termination to the Company; or
(ii) if the Company breaches any of its obligations under this
Agreement and fails to remedy such breach within fifteen
(15) days after written notice of such breach is provided
to the Company; and
(b) By the Company, with respect to a particular Finder,
(i) without cause, upon thirty (30) days' written notice of
termination to such Finder; or
(ii) if such Finder breaches any of its obligations under this
Agreement and fails to remedy such breach within fifteen
(15) days after written notice of such breach is provided
to such Finder.
2.3 It is specifically understood by the Finders and by the Company
that if one party shall duly exercise its right of termination under Section
2.2, none of the parties shall be entitled to any compensation or claim for
goodwill or other loss, cost or expense which either of them
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may suffer or claim to have suffered by reason of termination of this Agreement.
2.4 Following termination of this Agreement, the Company shall have no
further responsibility to the Finders except to (i) pay commissions then due,
and (ii) pay when they become due commissions on any Transaction accepted by the
Company prior to termination, which is scheduled to close and is actually closed
within thirty (30) days of the effective date of termination of this Agreement.
Except as expressly stated herein, the Company shall have no liability for
commissions with respect to any Transaction entered into by the Company after
the effective date of termination of this Agreement.
3. Compensation.
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In consideration of the Finders' services, the Finders shall be entitled to
receive, and the Company hereby agrees to pay to the Finders, the following:
3.1 Upon the closing of a Transaction with a Purchaser directly
attributable to an introduction made by a Finder to the Company, such Finder
shall receive the following (the "Transaction Fee"):
(a) five percent (5%) of the aggregate gross proceeds raised by such
Finder, payable in cash as the proceeds are received by the Company from each
Transaction; and
(b) warrants to purchase such number of shares of Common Stock
equivalent to five percent (5%) of the aggregate number of shares of Common
Stock sold by such Finder. Such warrants shall be issued upon the closing of the
Offering, shall have a term of five years, and shall be immediately exercisable,
at an exercise price equal to 120% of the ten-day VWAP.
3.2 For purposes of clarity, each Finder shall only be entitled to receive
a Transaction Fee relating to that portion of the aggregate gross proceeds
invested by Purchasers directly attributable to an introduction made by that
particular Finder to the Company. In the event of a dispute between the Finders,
the Company shall make the final determination with respect to the allocation of
the Transaction Fee between Finders. In no event shall the Company be obligated
to pay an aggregate Transaction Fee to the Finders greater than the amounts set
forth in Section 3.1 above.
3.3 The Finder's Transaction Fee shall have been earned upon consummation
of a Transaction with a Purchaser that occurs as a result of this Agreement;
provided, that, the Transaction is consummated during the term of this Agreement
-------- ----
or within thirty (30) days from the termination of this Agreement.
3.4 All parties shall be responsible for their own expenses incurred in
connection with the execution of this Agreement and the transactions
contemplated hereby.
3.5 The Company agrees to pay the reasonable, documented, actual fees and
expenses of the Lead Investor (as defined below), including reasonable legal
fees and expenses for which a detailed billing statement is provided, up to a
maximum aggregate amount of $10,000. For purposes of this Section 3.5, the Lead
Investor shall be the first Purchaser to close a Transaction with aggregate
gross proceeds to the Company of at least $1,000,000. The Company shall
reimburse the Lead Investor only after receiving the proceeds from such
Transaction, upon receipt of adequate documentation for such fees and expenses.
-3-
4. Information.
-----------
In connection with the Finders' engagement hereunder, the Company will
furnish the Finders and any prospective Purchaser with any information
concerning the Company that the Company reasonably deems appropriate and will
provide the Finders and any prospective Purchaser with reasonable access to the
Company's officers and directors, subject to the execution of the Company's
standard form of non-disclosure agreement. In addition, the Finders shall be
kept fully informed of any events that are reasonably likely to have a material
effect on the financial condition of the Company. The Company acknowledges that
the Finders will not undertake any "due diligence" investigation and will be
using and relying upon the information supplied by the Company and its officers,
agents and others, and any other publicly available information concerning the
Company.
5. Confidentiality.
---------------
Whereas it is desirable and necessary to exchange documents and information
with respect to the business and products of the Company and the business and
products of the Finders, the parties hereby shall and do subscribe to the terms
of confidentiality set forth in Schedule A attached hereto.
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6. Restrictive Covenants.
---------------------
6.1 Each party acknowledges and agrees that the rights granted to the
other in this Agreement are non-exclusive, and that, without limiting the
generality of the foregoing, nothing in this Agreement shall be deemed or
construed to prohibit either party herein from participating in similar business
arrangements as those described herein.
6.2 Except as expressly set forth in Section 6.3, neither this Agreement
nor any Transaction contemplated by this Agreement shall be construed as
granting to the Finders any license or right in or to any patent, copyright,
trademark or other proprietary right of the Company.
6.3 Each Finder shall conduct its business under its own name. The Finders
shall not use any trademarks or tradenames of the Company in any manner, except
as authorized in writing by the Company or in connection with the use of
literature supplied by the Company. The Finders shall discontinue such usage
upon the termination of this Agreement.
6.4 All originals and photocopies or any other forms of records, computer
records and printouts, and any other material and/or equipment furnished to
and/or maintained by the Finders in connection with the performance of services
under this Agreement shall remain the property of the Company and shall be
returned to the Company upon demand or immediately upon termination of this
Agreement.
6.5 Each of the Finders, severally and not jointly, represents and
warrants that its performance of all the terms of this Agreement and its duties
as an independent contractor will not breach any invention assignment agreement,
confidential information agreement, non-competition agreement or other agreement
or other obligation with any present or former client or other party. Each of
the Finders, severally and not jointly, further represents and warrants that it
has not and will not bring to the Company or use in the performance of their
duties for the Company any documents or materials of a present or former client
or other party that are not generally available to the public.
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7. Independent Contractor Status.
-----------------------------
7.1 Each of the Finders expressly understands and agrees that its
relationship to the Company is that of an independent contractor and not that of
an employee, officer, agent or otherwise. The Finders shall have no restrictions
on their ability to provide services to companies other than the Company, except
as stated herein. The Finders have no authority to accept any order or to bind
or obligate the Company in any way or to renew any debt or obligation for or on
account of the Company without the Company's prior written consent. The Finders
will not, without specific prior written authority from the Company, act in any
way, either directly or indirectly, as the Company's agent or representative.
7.2 In addition to Section 8 below, each of the Finders, severally
and not jointly, represents and warrants to the Company that it has complied and
hereafter will comply with all federal, state and local laws and regulations
governing such Finder's business and the performance of such Finder's
obligations hereunder, including, without limitation, obtaining and maintaining
all licenses and permits required to conduct such Finder's business. The Finders
shall comply with all laws that are in effect in any jurisdiction in which they
operate.
7.3 The Finders expressly understand and agree that the Company will
not make any deductions whatsoever from amounts due to the Finders pursuant to
this Agreement for federal, state or local taxes, FICA, FUTA, state unemployment
tax or any other tax, withholding or payment obligation. Each of the Finders,
severally and not jointly, represents and warrants to the Company that it has
complied and hereafter will comply with all applicable income and other tax laws
of any federal, state or local government authority. The Finders will indemnify
and hold the Company harmless for any damage, loss, cost and expense, including
reasonable attorney fees, arising from the Finders' breach of Section 7.2 and
this Section 7.3.
7.4 The Finders expressly understand and agree that the Company will
provide no benefits of any nature whatsoever to the Finders. Without limiting
the generality of the foregoing, the Finders expressly understand and agree that
the Company will not provide to the Finders any health insurance, pension
benefits, paid vacation, holidays or sick leave, disability insurance or any
other benefit that may be made available to the Company's employees from time to
time.
8. Compliance with Law.
-------------------
Each of the Finders has not taken, and will not take, any action, directly
or indirectly, that may cause an Transaction to fail to be entitled to exemption
from registration under the U.S. federal securities laws, or applicable state
securities or "blue sky" laws, or the applicable laws of the foreign countries
in which the Securities will be offered or sold. Each of the Finders, severally
and not jointly, further represents that, pursuant to Section 15 of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), it is a registered
broker or dealer as those terms are defined under Section 3(a) of the 1934 Act.
The Company shall be responsible for any costs and expenses associated with
filings, applications or registrations with any governmental or regulatory body,
including, without limitation, those associated with any sales pursuant to
Regulation D under the 1933 Act, "blue sky" laws, and the laws of the foreign
countries in which the Securities will be offered or sold that are required to
be made by the Company.
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9. Notices; No Waiver.
------------------
9.1 All notices and other communications hereunder shall be deemed
given upon (a) the sender's confirmation of receipt of a facsimile transmission
to the recipient's facsimile number set forth below, (b) confirmed delivery by a
standard overnight carrier to the recipient's address set forth below, or (c)
delivery by hand to the recipient's address set forth below (or, in each case,
to or at such other facsimile number or address for a party as such party may
specify by notice given in accordance with this Section 9.1):
(a) If to the Company, to:
Xxxxx X. Xxxxxx President and Chief Executive Officer
Senesco Technologies, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxx Xxxxxx 00000
Fax: (000) 000-0000
With a copy to:
Xxxx X. Xxxxxx, Esq.
Xxxx and Xxxx LLP
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Fax: (000) 000-0000
(b) If to the Finders, to:
Xxxxxxx X. Xxxxx, President
Sands Brothers International, Ltd.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Xxxxxx Xxxxx, Senior Vice President
Investment Banking/Capital Markets
Stanford Group Company
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
9.2 Neither the failure nor any delay by either the Company or the
Finders to exercise any right, remedy, power or privilege under this Agreement
shall operate or be construed as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege,
nor shall any waiver with respect to any occurrence be construed as a waiver
with respect to any other occurrence. No waiver of any right, remedy, power or
privilege under this Agreement shall be effective unless such waiver is in
writing signed by the party to be charged thereby.
-6-
10. General Provisions.
------------------
10.1 This Agreement contains the entire agreement and understanding
between the parties with respect to the subject matter hereof, and supersedes
any and all prior and contemporaneous agreements and understandings. This
Agreement may not be amended or modified except in writing signed by the parties
to the Agreement.
10.2 Each party to this Agreement represents, agrees and warrants that
it will perform all other acts and execute and deliver all other documents that
may be necessary or appropriate to carry out the intent and purpose of this
Agreement.
10.3 The provisions of this Agreement are independent of and separable
from each other, and no provision shall be affected by or rendered invalid or
unenforceable because any other provision of this Agreement may be held to be
invalid or unenforceable in whole or in part.
10.4 The Company agrees to indemnify the Finders and related persons
in accordance with the indemnification provisions annexed hereto as Schedule B,
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the provisions of which are incorporated herein in their entirety.
10.5 This Agreement shall be deemed to have been made and delivered in
New York City and shall be governed as to validity, interpretation,
construction, effect and in all other respects by the internal laws of the State
of New York. Each party hereto (a) agrees that any legal suit, action or
proceeding arising out of or relating to this letter shall be instituted
exclusively in New York State Supreme Court, County of New York, or in the
United States District Court for the Southern District of New York, (b) waives
any objection, which any party may have now or hereafter to the venue of any
such suit, action or proceeding, and (c) irrevocably consents to the
jurisdiction of the New York State Supreme Court, County of New York, and the
United States District Court for the Southern District of New York in any such
suit, action or proceeding. The parties hereto further agree to accept and
acknowledge service of any and all process which may be served in any such suit,
action or proceeding in the New York State Supreme Court, County of New York, or
in The United States District Court for the Southern District of New York. THE
PARTIES HERETO AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY
DOCUMENT OR AGREEMENT CONTEMPLATED HEREBY.
10.6 Each of the Finders acknowledges that the Company is entering
into this Agreement in reliance upon the personal reputation, qualifications and
abilities of the present owner or owners of their business and operations, and
accordingly, they may not assign their rights or obligations under this
Agreement, either voluntarily or by operation of law, except with the prior
written consent of the Company. A Change in Control (as defined below) shall be
deemed to be an assignment for this purpose.
For purposes of this Section 10.6, Change in Control shall mean (a) a
merger or consolidation in which (i) the Finder is a constituent party, or (ii)
a subsidiary of the Finder is a constituent party and the Finder issues shares
of its capital stock pursuant to such merger or consolidation, except any such
merger or consolidation involving the Finder or a subsidiary of the Finder in
which the holders of capital stock of the Finder immediately prior to such
merger or consolidation continue to hold immediately following such merger or
consolidation more than
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50% by voting power of the capital stock of or ownership interest in (A) the
surviving or resulting entity or (B) if the surviving or resulting entity is a
wholly owned subsidiary of another entity immediately following such merger or
consolidation, the parent entity of such surviving or resulting entity; or (b)
the sale, in a single transaction or series of related transactions, (i) by the
Finder of all or substantially all the assets of the Finder (except where such
sale is to a wholly owned subsidiary of the Finder) or (ii) by the stockholders
of the Finder of more than 50% by voting power of the then-outstanding capital
stock of the Finder.
10.7 Stanford acknowledges and agrees that this Agreement satisfies
the Company's obligation to provide it with the opportunity to act as the
exclusive managing agent of the Company in the event the Company proposes to
sell, exchange, pledge, hypothecate or dispose of any equity or debt securities
through a private placement or public offering, as set forth in that certain
Securities Purchase Agreement by and between the Company and Stanford Venture
Capital Holdings, Inc., dated January 16, 2002, and hereby forever releases the
Company from any and all claims arising under such agreement with respect to the
matters contemplated hereunder.
10.8 The covenants and agreements of the Finders and the Company set
forth in this Agreement shall survive the termination of this Agreement, which
covenants and agreements shall remain in full force and effect thereafter in
accordance with the terms hereof.
10.9 This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, which together shall constitute one
and the same agreement.
* * * * * * *
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If the foregoing is acceptable to you, please sign and return the enclosed
copy of this letter to my attention.
Very truly yours,
SENESCO TECHNOLOGIES, INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: President and Chief Executive Officer
AGREED AND ACCEPTED:
SANDS BROTHERS INTERNATIONAL LTD.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
STANFORD GROUP COMPANY
By: /s/ Xxxxxx Xxxxx
----------------------------------------
Name: Xxxxxx Xxxxx
Title: Senior Vice President
SCHEDULE A
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INFORMATION TO BE SUPPLIED; CONFIDENTIALITY
In connection with the Finders' activities on behalf of the Company, the
Company will furnish the Finders with all financial and other information
regarding the Company that the Finders reasonably believe appropriate to their
assignment (all such information so furnished by the Company, whether furnished
before or after the date of this Agreement, being referred to herein as the
"Information"). The Company will provide the Finders with reasonable access to
the officers, directors and employees of the Company. The Company recognizes and
agrees that the Finders (i) will use and rely primarily on the Information and
information available from generally recognized public sources in performing the
services contemplated by this Agreement without independently verifying the
Information or such other information, (ii) do not assume responsibility for the
accuracy of the Information or such information, and (iii) will not make an
appraisal of any assets or liabilities owned or controlled by the Company or its
market competitors.
For the purpose of, the Agreement, "Information" shall mean and include all
contracts and agreements and the terms thereof, to which the Company may be a
party; all internal non-public business and financial information, analyses,
forecasts and projections of the business of the Company and any direct or
indirect operating subsidiary, all business plans of the Company and its
subsidiaries; all pending or proposed proposals for new or renewed contracts,
including responses by the Company to RFPs; the names, business and financial
arrangements of any contract to which the Company is a party; the names and
terms of employment relationships between the Company and any of its operating
subsidiaries with any employees; all detail and back up information relating to
actual, pro forma or forecasted operations; and all data or information prepared
by the Company at the request of the Finders.
The Finders will maintain the confidentiality of the Information and,
unless and until such information shall have been made publicly available by the
Company or by others without breach of a confidentiality agreement, shall
disclose the information only as authorized by the Company or as required by law
or by order of a governmental authority or court of competent jurisdiction. In
the event that the Finders are legally required to make disclosure of any of the
Information, the Finders will give notice to the Company prior to such
disclosure, to the extent that the Finders can practically do so.
The foregoing paragraph shall not apply to information that:
o at the time of disclosure by the Company is, or thereafter becomes,
generally available to the public or within the industries in which
the Company or the Finders or their affiliates conduct business, other
than as a direct result of a breach by the Finders of their
obligations under this Agreement;
o prior to or at the time of disclosure by the Company, was already in
the possession of, or conceived by, the Finders or any of their
affiliates, or could have been developed by them from information then
in their possession, by the application of other
information or techniques in their possession, generally available to
the public, or available to the Finders or their affiliates other than
from the Company;
o at the time of disclosure by the Company or thereafter, is obtained by
the Finders or any of their affiliates from a third party who the
Finders reasonably believe to be in possession of the information not
in violation of any contractual, legal or fiduciary obligation to the
Company with respect to that information; or
o is independently developed by the Finders or their affiliates.
Nothing in this Agreement shall be construed to limit the ability of the
Finders or their affiliates to pursue, investigate, analyze, invest in, or
engage in investment banking, financial advisory or any other business
relationship with entities other than the Company, notwithstanding that such
entities may be engaged in a business which is similar to or competitive with
the business of the Company, and notwithstanding that such entities may have
actual or potential operations, products, services, plans, ideas, customers or
suppliers similar or identical to the Company's, or may have been identified by
the Company as potential merger or acquisition targets or potential candidates
for some other business combination, cooperation or relationship. The Company
expressly acknowledges and agrees that it does not claim any proprietary
interest in the identity of any other entity in its industry or otherwise, and
that the identity of any such entity is not confidential information.
SCHEDULE B
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INDEMNIFICATION
Recognizing that matters of the type contemplated in this engagement
sometimes result in litigation and that the role of the Finders is advisory, the
Company agrees to indemnify and hold harmless each of the Finders, their
affiliates and their respective officers, directors, employees, agents and
controlling persons (collectively, the "Indemnified Parties"), from and against
any losses, claims, damages and liabilities, joint or several, related to or
arising in any manner out of any transaction, financing, proposal or any other
matter (collectively, the "Matters") contemplated by the engagement of the
Finders hereunder, and will promptly reimburse the Indemnified Parties for all
expenses (including fees and expenses of legal counsel) as incurred in
connection with the investigation of, preparation for or defense of any pending
or threatened claim related to or arising in any manner out of Matters
contemplated by the engagement of the Finders hereunder, or any action or
proceeding arising therefrom (collectively, "Proceedings"), whether or not such
Indemnified Party is a formal party to any such Proceeding. Notwithstanding the
foregoing, the Company shall not be liable in respect of any losses, claims,
damages, liabilities or expenses that a court of competent jurisdiction shall
have determined by final judgment resulted solely from the gross negligence or
willful misconduct of an Indemnified Party. The Company further agrees that it
will not, without the prior written consent of the Finders, settle, compromise
or consent to the entry of any judgment in any pending or threatened Proceeding
in respect of which indemnification may be sought hereunder (whether or not the
Finders or any Indemnified Party is an actual or potential party to such
Proceeding), unless such settlement, compromise or consent includes an
unconditional release of a Finder and each other Indemnified Party hereunder
from all liability arising out of such Proceeding.
The Company agrees that if any indemnification or reimbursement sought
pursuant to this letter were for any reason not to be available to any
Indemnified Party or insufficient to hold it harmless as and to the extent
contemplated by this letter, then the Company shall contribute to the amount
paid or payable by such Indemnified Party in respect of losses, claims, damages
and liabilities in such proportion as is appropriate to reflect the relative
benefits to the Company and its stockholders on the one hand, and the Finders on
the other, in connection with the Matters to which such indemnification or
reimbursement relates or, if such allocation is not permitted by applicable law,
not only such relative benefits but also the relative faults of such parties as
well as any other equitable considerations. It is hereby agreed that the
relative benefits to the Company and/or its stockholders and to the Finders with
respect to the Finders' engagement shall be deemed to be in the same proportion
as (i) the total value paid or received or to be paid or received by the Company
and/or its stockholders pursuant to the Matters (whether or not consummated) for
which the Finders are engaged to render financial advisory services bears to
(ii) the fees paid to the Finders in connection with such engagement. In no
event shall the Indemnified Parties contribute or otherwise be liable for an
amount in excess of the aggregate amount of fees actually received by the
Finders pursuant to such engagement (excluding amounts received by the Finders
as reimbursement of expenses).
The Company further agrees that no Indemnified Party shall have any
liability (whether direct of indirect, in contract or tort or otherwise) to the
Company for or in connection with the Finders' engagement hereunder except for
losses, claims, damages, liabilities or expenses that a court of competent
jurisdiction shall have determined by final judgment resulted solely from the
gross negligence or willful misconduct of such Indemnified Party. The indemnity,
reimbursement and contribution obligations of the Company shall be in addition
to any liability which the Company may otherwise have and shall be binding upon
and inure to the benefit of any successors. assigns, heirs and personal
representatives of the Company or an Indemnified Party.
The indemnity, reimbursement, contribution provisions set forth herein
shall remain operative and in full force and effect regardless of (i) any
withdrawal, termination or consummation of or failure to initiate or consummate
the Matters referred to herein, (ii) any investigation made by or on behalf of
any party hereto or any person controlling (within the meaning of Section 15 of
the Securities Act of 1933, as amended, or Section 20 of the Securities Exchange
Act of 1934, as amended) any party hereto, (iii) any termination or the
completion or expiration of the Agreement or the Finders' engagement and (iv)
whether or not the Finders shall, or shall not, be called upon to render any
formal or informal advice in the course of such engagement.
