Kandi Technologies Group, Inc.: Exhibit 10.2 - Filed by newsfilecorp.com






 

August 11, 2014 

	Mr. Xiaoming Hu 
	Chairman & Chief Executive Officer 
	Kandi Technologies Group, Inc. 
	Jinhua City Industrial Zone 
	Jinhua, Zhejiang Province, China, 321016




	Re: 	Exclusive Placement Agent Agreement
  


Dear Mr. Hu: 

     The purpose of this letter
agreement (this “Engagement Letter” or this “Agreement”) is to set
forth the terms and conditions pursuant to which FT Global Capital, Inc.
(“FTGC” or the “Placement Agent”), shall serve as the Exclusive
Placement Agent for Kandi Technologies Group, Inc.(the “Company”), on a
“best efforts” basis, in connection with the proposed placement (each, a
“Placement”) of registered securities (the “Securities”) of the
Company, which may include shares (the “Shares”) of the Company’s common
stock (the “Common Stock”).

     This Agreement shall become
effective upon the date it is signed by the Company (the “Effective
Date”). The terms of such Placement(s) and the Securities shall be mutually
agreed upon by the Company and the investors (each, an “Investor” and
collectively, the “Investors”) and nothing herein enables the Placement
Agent to bind the Company or any Investor. This Agreement and the documents
executed and delivered by the Company and the Investors in connection with the
Placement(s) shall be collectively referred to herein as the “Transaction
Documents.” The date of each of the closings of the Placement(s) shall be
referred to herein as the “Closing Date.” The Company expressly
acknowledges and agrees that the Placement Agent’s obligations hereunder are on
a reasonable “best efforts” basis only and that the execution of this Agreement
does not constitute a commitment by the Placement Agent to purchase or to sell
any Securities and does not ensure the successful placement of any Securities or
any portion thereof. The identities of the investors to which the Placement
Agent introduces the Company shall be proprietary information of the Placement
Agent and shall not be divulged to third parties by the Company, nor used by the
Company outside the scope of the Placement Agent’s engagement as described
herein, other than as required by applicable law.

SECTION
1.      COMPENSATION AND OTHER FEES.


     (A)      As
compensation for the Placement Agent’s services hereunder, the Company shall pay
to the Placement Agent a cash placement fee upon each Closing, in an amount
equal to five percent (5%) of the aggregate offering price of the total amount
of capital received by the Company from the sale of its Securities to Investors introduced to the
Company by the Placement Agent during the term of this Agreement (the
“Placement Agent Fee”). Notwithstanding anything to the contrary in this
Agreement, the compensation provided for in this Agreement shall be subject to
such reduction as may be necessary for the compensation to comply with Financial
Industry Regulatory Authority (“FINRA”) Rule 5110.

1200 Abernathy Road, Suite 1700, Atlanta, GA, 30328

770-350-2698 (Office), 770-551-8184 (Fax) 




     (B)     
Upon each Closing, the Company shall also grant Placement Agent or its designees
at the Closing warrants (the “Placement Agent’s Warrants”) to purchase
that number of Shares equal to five percent (5%) of the aggregate number of
Shares placed in the Placement (or underlying any convertible Securities sold in
the Placement) to the Investors, excluding any Shares issuable upon exercise of
any warrants issued in the Placement. The Placement Agent Warrants shall include
customary terms, such as anti-dilution protection to the extent permitted by
FINRA Rule 5110 and registration rights. The exercise price for Placement Agent
Warrants will be 120% of Purchase Price of the Placement and the Placement Agent
will not have cashless exercise rights under such warrants; provided, that, if
at the time of any exercise of the Placement Agent Warrants the Company does not
have an effective registration statement for the issuance of the warrant shares
or the resale of the warrant shares, then the Placement Agent may exercise such
warrants on a cashless basis. 

     (C)      The
Placement Agent shall be entitled to a Placement Agent Fee, calculated in the
manner provided in Section 1(A), with respect to any public or private offering
or other financing or capital-raising transaction of any kind (“Tail
Financing”) to the extent that such financing or capital is provided to the
Company by investors whom the Placement Agent had introduced to the Company
during the Term, as defined below, if such Tail Financing is consummated at any
time within the 12-month period following the termination of this Agreement (the
“Tail Period”). Notwithstanding anything to the contrary in this
Agreement, the compensation provided for in this Agreement shall be subject to
such reduction as may be necessary for the compensation to comply with FINRA
Rule 5110.

SECTION 2.      COMPANY
REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to, and
agrees with, the Placement Agent on the date hereof and on each date on which
any Securities are offered that: 

     (A)      The
Company has filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3 (Registration File No.
333-196938) under the Securities Act of 1933, as amended (the “Securities
Act”), which became effective on August 6, 2014, to be used for the
registration under the Securities Act of any Securities offered at any time
pursuant to this Agreement (as well as any Placement Agent Warrants and the
Shares underlying such warrants) to the extent such Placement is being made
pursuant to such registration statement, as opposed to privately placed. At the
time of such filing and on the date hereof, the Company met the requirements of
Form S-3 under the Securities Act. Such registration statement meets the
requirements set forth in Rule 415(a)(1)(x) under the Securities Act and
complies with said Rule. The Company will file with the Commission pursuant to
Rule 424(b) under the Securities Act, and the rules and regulations (the
“Rules and Regulations”) of the Commission promulgated thereunder, a
supplement to the form of prospectus included in such registration statement
relating to the placement of any publicly offered Securities and the plan of
distribution thereof and has advised or will advise the Placement Agent of all
further information (financial and other) with respect to the Company required to be set forth therein. Such registration
statement, including the exhibits thereto, as amended at the date of this
Agreement, is hereinafter called the “Registration Statement”; such
prospectus in the form in which it appears in the Registration Statement is
hereinafter called the “Base Prospectus”; and the supplemented form of
prospectus, in the form in which it will be filed with the Commission pursuant
to Rule 424(b) (including the Base Prospectus as so supplemented) is hereinafter
called the “Prospectus Supplement.” Any reference in this Agreement to
the Registration Statement, the Base Prospectus or the Prospectus Supplement
shall be deemed to refer to and include the documents incorporated by reference
therein (the “Incorporated Documents”) pursuant to Item 12 of Form S-3
which were filed under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), on or before the date of this Agreement, or the issue
date of the Base Prospectus or the Prospectus Supplement, as the case may be;
and any reference in this Agreement to the terms “amend,” “amendment” or
“supplement” with respect to the Registration Statement, the Base Prospectus or
the Prospectus Supplement shall be deemed to refer to and include the filing of
any document under the Exchange Act after the date of this Agreement, or the
issue date of the Base Prospectus or the Prospectus Supplement, as the case may
be, deemed to be incorporated therein by reference. All references in this
Agreement to financial statements and schedules and other information that is
“contained,” “included,” “described,” “referenced,” “set forth” or “stated” in
the Registration Statement, the Base Prospectus or the Prospectus Supplement
(and all other references of like import) shall be deemed to mean and include
all such financial statements and schedules and other information that is or is
deemed to be incorporated by reference in the Registration Statement, the Base
Prospectus or the Prospectus Supplement, as the case may be. No stop order
suspending the effectiveness of the Registration Statement or the use of the
Base Prospectus or the Prospectus Supplement has been issued, and no proceeding
for any such purpose is pending or has been initiated or, to the Company's
knowledge, is threatened by the Commission. For purposes of this Agreement,
“free writing prospectus” has the meaning set forth in Rule 405 under the
Securities Act and the “Time of Sale Prospectus” means the preliminary
prospectus, if any, together with the free writing prospectuses, if any, used in
connection with the Placement, including any documents incorporated by reference
therein.




     (B)      The
Registration Statement (and any further documents to be filed with the
Commission) contains all exhibits and schedules as required by the Securities
Act. Each of the Registration Statement and any post-effective amendment
thereto, at the time it became effective, complied in all material respects with
the Securities Act and the Exchange Act and the applicable Rules and Regulations
and did not and, as amended or supplemented, if applicable, will not, contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. The Base Prospectus, the Time of Sale Prospectus, if any, and the
Prospectus Supplement, each as of its respective date, comply in all material
respects with the Securities Act and the Exchange Act and the applicable Rules
and Regulations. Each of the Base Prospectus, the Time of Sale Prospectus, if
any, and the Prospectus Supplement, as amended or supplemented, did not and will
not contain as of the date thereof any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading. The
Incorporated Documents, when they were filed with the Commission, conformed in
all material respects to the requirements of the Exchange Act and the applicable
Rules and Regulations, and none of such documents, when they were filed with the
Commission, contained any untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein (with respect to
Incorporated Documents incorporated by reference in the Base Prospectus or
Prospectus Supplement), in light of the circumstances under which they
were made not misleading; and any further documents so filed and incorporated by
reference in the Base Prospectus, the Time of Sale Prospectus, if any, or
Prospectus Supplement, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange Act and the
applicable Rules and Regulations, as applicable, and will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading. No post-effective amendment to the Registration Statement
reflecting any facts or events arising after the date thereof which represent,
individually or in the aggregate, a fundamental change in the information set
forth therein is required to be filed with the Commission. There are no
documents required to be filed with the Commission in connection with the
transaction contemplated hereby that (i) have not been filed as required
pursuant to the Securities Act or (ii) will not be filed within the requisite
time period. There are no contracts or other documents required to be described
in the Base Prospectus, the Time of Sale Prospectus, if any, or Prospectus
Supplement, or to be filed as exhibits or schedules to the Registration
Statement, that have not been described or filed as required.




     (C)      The
Company is currently eligible to use free writing prospectuses in connection
with the Placement pursuant to Rules 164 and 433 under the Securities Act. Any
free writing prospectus that the Company is required to file pursuant to Rule
433(d) under the Securities Act has been, or will be, filed with the Commission
in accordance with the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder. Each free writing prospectus
that the Company has filed, or is required to file, pursuant to Rule 433(d)
under the Securities Act or that was prepared by or behalf of or used by the
Company complies or will comply in all material respects with the requirements
of the Securities Act and the applicable rules and regulations of the Commission
thereunder. The Company will not, without the prior consent of the Placement
Agent, prepare, use or refer to, any free writing prospectus. 

     (D)     
The Company will as promptly as practicable deliver to the Placement Agent
complete conformed copies of the Registration Statement and of each consent and
certificate of experts, as applicable, filed as a part thereof, and conformed
copies of the Registration Statement (without exhibits), the Base Prospectus,
the Time of Sale Prospectus, if any, and the Prospectus Supplement, as amended
or supplemented, in such quantities and at such places as the Placement Agent
reasonably request. Neither the Company nor any of its directors and officers
has distributed and none of them will distribute, prior to the Closing Date, any
offering material in connection with the offering and sale of the Securities
other than, in the case of any Securities offered pursuant to the Registration
Statement, the Base Prospectus, the Time of Sale Prospectus, if any, the
Prospectus Supplement, the Registration Statement, copies of the documents
incorporated by reference therein and any other materials permitted by the
Securities Act. 

     (E)      There
are no affiliations with any FINRA member firm among the Company’s officers,
directors or, to the knowledge of the Company, any five percent (5%) or greater
stockholder of the Company. 

     (F)      The
Placement Agent shall have received on each Closing Date a written opinion of
counsel for the Company, dated the Closing Date and addressed to the Placement
Agent in form and substance satisfactory to the Placement Agent, which shall
include, without limitation, opinions related to (i) the corporate existence of
the Company and power to operate its business; (ii) the corporate power and authority of the Company to execute all
agreements and perform its obligations related in the Placement; (iii) the
ability of the Company to enter into all agreements and perform its obligations
related to the Placement without contravening or violating (or causing the
triggering of any anti-dilution or similar provisions in) its charter documents,
any other agreements or any applicable law, regulation or rule; (iv) that any
Securities (and any Common Stock underlying such Securities) will be duly
authorized, fully paid, validly issued and non-assessable, as applicable; (v)
that no approval, consent, order, filing or notice is required to complete the
Placement and for the Company to perform its obligations in the Placement; (vi)
to the extent applicable, the effectiveness of the Registration Statement and
that all filings required by the Securities Act of 1933, as amended, have been
made; (vii) the listing of all Common Stock included in or underlying the
Securities on any national exchange on which the Company’s Common Stock is
listed; and (viii) the Company’s status as an “investment company” as defined in
the Investment Company Act of 1940, as amended. The Placement Agent shall also
have received on each Closing Date a negative assurance letter from counsel for
the Company, dated the Closing Date and addressed to the Placement Agent in form
and substance satisfactory to the Placement Agent.




     (G)      The
Placement Agent shall be entitled to rely upon any and all representations and
warranties of the Company included in the Transaction Documents or other
purchase agreements entered into by the Company and the Investors in connection
with any Placement, subject to the qualifications and limitations therein,
including, but not limited to, any disclosure set forth on an applicable
schedule. 

SECTION
3.      REPRESENTATIONS AND WARRANTIES OF
PLACEMENT AGENT. The Placement Agent represents and warrants to the Company
that: (i) it will comply with all applicable federal laws regarding trading in
securities of the Company, (ii) it will not disclose any non-public material
information of the Company without the prior written consent of the Company
during the Term for a period of one (1) year from the termination date of this
Agreement, and (iii) that it is a registered broker-dealer in good standing with
the relevant regulatory agencies.

SECTION
4.      ENGAGEMENT TERM & SURVIVAL.
The term of this Agreement shall be for a period of the earlier of six months
commencing on the Effective Date or the completion of the Placement (the
“Term”). In the event of the termination of this Agreement, the Placement
Agent’s compensation due under this Agreement will be payable in full and the
compensation payable under Section 1(A) will continue for the twelve (12) month
period commencing with such termination. The provisions of Sections 1, 2, 3, 4,
5, 6, 7, 9, 10 and 11 of this Agreement and Appendix A shall survive this
Agreement’s expiration or termination. 

SECTION 5.      PLACEMENT
AGENT INFORMATION. The Company agrees that any information or advice
rendered by the Placement Agent in connection with this engagement is for the
confidential use of the Company only in its evaluation of the Placement and,
except as otherwise required by law, the Company will not disclose or otherwise
refer to the advice or information in any manner without prior written consent
of the Placement Agent. 

SECTION 6.      NO
FIDUCIARY RELATIONSHIP; THIRD PARTY BENEFICIARIES. This Agreement does not
create, and shall not be construed as creating rights enforceable by any person
or entity that is not a party hereto, except those entitled hereto by virtue of
the indemnification provisions hereof. The Company acknowledges and agrees that
the Placement Agent is not and shall not be construed as a fiduciary of the
Company and that the Placement Agent shall not have any duties or liabilities to the equity holders or the
creditors of the Company or to any other person by virtue of this Agreement or
the retention of the Placement Agent hereunder, all of which are hereby
expressly waived.






SECTION 7.     
INDEMNIFICATION. The parties agree to the terms of the Placement Agent’s
standard indemnification agreement, which is attached hereto as Appendix A and
incorporated herein by reference.

SECTION
8.      ANNOUNCEMENTS. The Company
grants to the Placement Agent the right to place customary announcement(s) of
the Placement in certain newspapers and to mail announcement(s) to persons and
firms selected by Placement Agent, at the Placement Agent’s expense, subject to
the Company’s prior approval, which shall not be unreasonably withheld. 

SECTION
9.      GOVERNING LAW. This Agreement
will be governed by, and construed in accordance with, the laws of the State of
Georgia applicable to agreements made and to be performed entirely in such
State. This Agreement may not be assigned by either party without the prior
written consent of the other party. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, and their respective successors and
permitted assigns. Any right to trial by jury with respect to any dispute
arising under this Agreement or any transaction or conduct in connection
herewith is waived. Any dispute arising under this Agreement may be brought into
the courts of the State of Georgia located in Fulton County or into the Federal
Court located in Atlanta, Georgia and, by execution and delivery of this
Agreement, the Company hereby accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of aforesaid courts. Each party
hereto hereby irrevocably waives personal service of process and consents to
process being served in any such suit, action or proceeding by delivering a copy
thereof via overnight delivery (with evidence of delivery) to such party at the
address in effect for notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law. If either party shall commence
an action or proceeding to enforce any provisions of this Agreement, then the
prevailing party in such action or proceeding shall be reimbursed by the other
party for its reasonable attorneys' fees and other costs and expenses incurred
with the investigation, preparation and prosecution of such action or
proceeding. 

SECTION 10.    ENTIRE
AGREEMENT/MISC. This Agreement embodies the entire agreement and
understanding between the parties hereto, and supersedes all prior agreements
and understandings, relating to the subject matter hereof. 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 or any other
provision of this Agreement, which will remain in full force and effect. This
Agreement may not be amended or otherwise modified or waived except by an
instrument in writing signed by each of the Placement Agent and the Company. The
representations, warranties, agreements and covenants contained herein shall
survive the closing of the Placement and delivery and/or exercise of the
Securities, as applicable. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission or a .pdf format file, such signature shall
create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and
effect as if such facsimile or .pdf signature page were an original thereof.




SECTION 11.      NOTICES. Any and all notices
or other communications or deliveries required or permitted to be provided
hereunder shall be in writing and shall be deemed given and effective on the
earliest of (a) the date of transmission, if such notice or communication is
delivered via facsimile at the facsimile number specified on the signature pages
attached hereto prior to 6:30 p.m. (Atlanta, Georgia time) on a business day,
(b) the next business day after the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number on the
signature pages attached hereto on a day that is not a business day or later
than 6:30 p.m. (Atlanta, Georgia time) on any business day, (c) the business day
following the date of mailing, if sent by U.S. nationally recognized overnight
courier service, or (d) upon actual receipt by the party to whom such notice is
required to be given. The address for such notices and communications shall be
as set forth on the signature pages hereto. 

     Please confirm that the foregoing
correctly sets forth our agreement by signing and returning an executed copy of
this Agreement to FTGC. 


	FT GLOBAL CAPITAL, INC. 
	  
	  
	By: __/s/ Patrick J. Ko___________________ 
	         Name: Patrick J. Ko

	         Title: President 
	  
	Address for notice: 
	FT Global Capital, Inc. 
	1200 Abernathy Road, Suite 1700 
	Atlanta, GA, 30328 
	Fax: 770-551-8184 




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

	 
	  
	Kandi Technologies Group, Inc. 
	  
	By: __/s/ Xiaoming Hu____________________ 
	          
      Name: Xiaoming Hu 
	           Title: Chairman
      & Chief Executive Officer 
	  
	Address for notice: 
	  
	Jinhua City Industrial Zone 
	Jinhua, Zhejiang Province, China, 321016 
	Fax:86-579-8223-9856 






APPENDIX A - - INDEMNIFICATION PROVISIONS 

     (A)      The
Company agrees to indemnify and hold harmless the Placement Agent and its
affiliates and their respective officers, directors, employees, agents, counsel,
advisers and consultants, and any persons controlling the Placement Agent or any
of its affiliates within the meaning of Section 15 of the Securities Act of 1933
or Section 20 of the Securities Exchange Act of 1934 (the Placement Agent and
each such other person or entity being referred to herein as an “Indemnified
Person”), from and against all claims, liabilities, losses or damages (or
actions in respect thereof) or other expenses (and further agrees to advance all
expenses) which (A) are related to or arise out of (i) actions taken or omitted
to be taken (including any untrue statements made or any statements omitted to
be made) by the Company or its respective affiliates in connection with this
Agreement, the Placement or which affect the Placement or (ii) actions taken or
omitted to be taken by an Indemnified Person with the consent or in conformity
with the actions or omissions of the Company or their respective affiliates in
connection with this Agreement, the Placement or which affect the Placement or
(iii) any investigation, litigation, or inquiry by a regulatory or
self-regulatory agency or authority involving the Company or any transaction
arising under any agreements between the Company and the Placement Agent or (B)
are otherwise related to or arise out of the Placement Agents’ activities on
behalf of the Company or its respective affiliates pursuant to this Agreement or
(C) in any way involving or alleged to involve the Company, any Placement or any
Securities. The Company will not be responsible, however, for any losses,
claims, damages, liabilities or expenses pursuant to clause (B) of the preceding
sentence which are finally judicially determined to have resulted solely from
such Indemnified Person’s gross negligence or willful misconduct. In addition,
the Company agrees to advance (and in the absence of advancement required
hereunder) to promptly reimburse each Indemnified Person for all reasonable
out-of-pocket expenses (including fees and expenses of counsel) as they are
incurred by such Indemnified Person in connection with investigating, preparing,
conducting or defending any such action or claim, whether or not in connection
with litigation in which any Indemnified Person is a named party, or in
connection with enforcing the rights of such Indemnified Person under this
Agreement, including the costs of any claims asserted by an Indemnified Person
against any indispensable party or by way of a counterclaim in any litigation
within the scope of this provision. The Company agrees to advance such expenses
incurred by an Indemnified Person pursuant to which indemnity may be sought
hereunder within thirty (30) days after receipt by the Company of a statement
requesting such advances from time to time, whether prior to or after final
disposition of any proceeding. Such advances shall be unsecured and interest
free and without regard to the Indemnified Person’s ultimate entitlement to
indemnification under the other provisions of this Agreement. Indemnified
Persons shall be entitled to continue to receive advancement of expenses
pursuant to this section unless and until the matter of an Indemnified Person’s
entitlement to indemnification hereunder has been finally adjudicated by court
order or judgment from which no further right of appeal exists. Each Indemnified
Person undertakes to repay such amounts advanced only if and to the extent that,
it ultimately is determined that the Indemnified Person is not entitled to be
indemnified by the Company under the provisions of this Agreement. 

1200 Abernathy Road, Suite 1700, Atlanta, GA, 30328

770-350-2698 (Office), 770-551-8184 (Fax) 




     (B)     
Promptly after receipt by the Placement Agent of notice of any claim or the
commencement of any action or proceeding with respect to which the Placement
Agent is entitled to indemnity hereunder, the Placement Agent will notify the
Company in writing of such claim or of the commencement of such action or
proceeding, and the Company will assume the defense of such action or proceeding
and will employ counsel reasonably satisfactory to the Placement Agent and will
pay the reasonable fees and expenses of such counsel. Notwithstanding the
preceding sentence, the Placement Agent will be entitled to employ counsel
separate from counsel for the Company and from any other party in such action if
counsel for the Placement Agent determines that to do so would be in the best
interests of the Placement Agent. In such event, the reasonable fees and
disbursements of no more than one such separate counsel will be paid by the
Company. The Company will have the exclusive right to settle the claim or
proceeding at its sole expense provided that the Company obtains a full and
unconditional release of any claims against the Placement Agent and the
Indemnified Persons from all liability on claims that are the subject matter of
such proceeding and does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of Placement Agent or any
Indemnified Person. 

     (C)      The
Company and the Placement Agent and any Indemnified Persons agree to notify each
other promptly of the assertion of any claim or the commencement of any action
or proceeding relating to a transaction contemplated by this engagement letter.


     (D)      If
for any reason the foregoing indemnity is unavailable to the Placement Agent or
insufficient to hold the Placement Agent harmless, then the Company shall
contribute to the amount paid or payable by the Placement Agent as a result of
such losses, claims, damages or liabilities in such proportion as is appropriate
to reflect not only the relative benefits received by the Company on the one
hand and the Placement Agent on the other, but also the relative fault of the
Company on the one hand and the Placement Agent on the other that resulted in
such losses, claims, damages or liabilities, as well as any relevant equitable
considerations. The amounts paid or payable by a party in respect of losses,
claims, damages and liabilities referred to above shall be deemed to include any
legal or other fees and expenses reasonably incurred in defending any
litigation, proceeding or other action or claim. Notwithstanding the provisions
hereof, the Placement Agent’s share of the liability hereunder shall not be in
excess of the amount of fees actually received by Placement Agent under this
engagement letter (excluding any amounts received as reimbursement of expenses
incurred by Placement Agent). 

     (E)     
These indemnification provisions shall remain in full force and effect whether
or not the transaction contemplated by this Agreement is completed and shall
survive the termination of this Agreement, and shall be in addition to any
liability that the Company might otherwise have to any indemnified party under
this engagement letter or otherwise.