Placement Agent Agreement



 Exhibit 10.29 
  
 PLACEMENT AGENT AGREEMENT 
  
 December 12, 2003 
  
 Brean Murray & Co., Inc. 
 570 Lexington Avenue 
 New York, New York 10022 
  
 Gentlemen:

  
 TenFold Corporation, a Delaware corporation (the
“Company”), hereby confirms its agreement with Brean Murray & Co., Inc. (the “Placement Agent”), as follows: 
  
 1. Offering. (a) The Company shall offer (the “Offering”) for sale through the Placement Agent, as exclusive agent for the
Company, a minimum of $8 million of shares (the “Shares”) of its common stock, par value $0.001 per share (the “Common Stock”) of the Company and a maximum of $10 million of Shares of Common Stock 
  
 (b) Placement of the Shares shall be made on a “best
efforts” basis. The Shares will be offered commencing on November 24, 2003 and ending on January 12, 2004 (the “Offering Period”). The date on which the Offering shall terminate shall be referred to as the “Termination
Date.” The Offering Period may be extended for up to 30 days by the mutual consent of the parties. The Company expressly acknowledges and agrees that the Placement Agent’s obligations hereunder are on a reasonable efforts basis only
and that the execution of this Agreement does not in any way constitute a commitment by the Placement Agent to purchase the Shares and does not ensure the successful placement of the Shares or any portion thereof. 
  
 (c) Subscriptions for the Shares will be accepted by the
Company at a price of $2.00 per Share (the “Offering Price”); provided, however, that the Company shall not accept subscriptions for, or sell Shares to, any persons or entities who do not qualify as “accredited investors,”
as such term is defined in Rule 501 of Regulation D promulgated under the Securities Act of 1933, as amended (the “Securities Act”). 
  
 (d) The Offering will be made by the Company solely pursuant to the “Offering Materials,” a s defined in that certain Securities
Purchase Agreement, by and among the Company and purchasers designated therein (“Purchasers”) (the “Securities 







 Purchase Agreement,” together with this Agreement and the Escrow Agreement, dated the date
hereof, by and among the Company, the Placement Agent and Wachovia Bank, National Association, shall be referred to as the “Transaction Documents”). 
  
 (e) As more particularly described in the Securities Purchase Agreement, the Company shall prepare and file
a registration statement under the Securities Act, which registration statement shall cover the offer and resale of the Shares. The Company shall use its best efforts to cause the registration statement to become effective under the Securities Act
in accordance with the Securities Purchase Agreement. 
  
 2.
Representations and Warranties of the Placement Agent. In offering the Shares for sale, the Placement Agent proposes to offer the Shares solely as agent for the Company for sale to accredited investors upon the terms set forth in the
Securities Purchase Agreement. The Placement Agent represents and warrants to the Company that, assuming compliance by the Company with all relevant provisions of the Securities Act, the Placement Agent will conduct all offers and sales of the
Shares in compliance with the relevant provisions of the Securities Act and the Rules and Regulations, all applicable state securities laws and regulations. The Placement Agent represents and warrants to the Company that the Placement Agent is
authorized to enter into this Agreement and to act in the manner provided in this Agreement. 
  
 3. Representations and Warranties. The Company (which for purposes of this Section 3 includes its subsidiaries, as applicable) hereby represents and warrants to the Placement Agent that: 
  
 (a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. The Company has full corporate power and authority to own and hold its properties and to conduct its business. The Company is duly licensed or qualified to do business, and in
good standing, in each jurisdiction in which the nature of its business requires licensing, qualification or good standing, except for any failure to be so licensed or qualified or in good standing that would not have a material adverse effect on
the Company and each subsidiary of the Company taken as a whole (each such corporation, partnership or other entity being referred to herein as a “Subsidiary” and, together, the “Subsidiaries”) or its consolidated results of
operations, assets, or financial condition or on its ability to perform its obligations under this Agreement or the Shares (a “Material Adverse Effect”). 
  
 (b) Schedule 6.1(b) of the Securities Purchase Agreement contains a list of the name of each
Subsidiary. Schedule 6.1(b) of the Securities Purchase Agreement sets forth, with respect to each Subsidiary, its type of entity, the jurisdiction of its organization, its authorized and outstanding capital stock, partnership interests or
equivalent ownership interests and the Company’s current ownership of such shares or interests. Each of the outstanding shares of capital stock of each of the Subsidiaries is duly authorized, validly issued, fully paid and nonassessable and
owned by the Company or another Subsidiary, and, except as set forth on Schedule 6.1(b) of the Securities Purchase Agreement, is free and clear of all liens, claims, encumbrances, options, pledges and security interests (collectively,
“Liens”) and were not issued in violation of, nor subject to, any preemptive, subscription or similar rights. There are no outstanding 







 warrants, options, subscriptions, calls, rights, agreements, convertible or exchangeable securities or
other commitments or arrangements relating to the issuance, sale, purchase, return or redemption, voting or transfer of any shares, whether issued or unissued, of any capital stock, equity interest or other securities of any Subsidiary. Except as
set forth on Schedule 6.1(b) of the Securities Purchase Agreement, the Company and the Subsidiaries do not own any equity interests in any person, other than the Subsidiaries. Each Subsidiary is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization and has all requisite power and authority to own, lease and operate its properties and to conduct its business. 
  
 (c) As of the date hereof, the authorized capital stock of the Company consists of 120,000,000 shares of
Common Stock, par value $0.001 per share, and 2,000,000 shares of Preferred Stock, par value $0.001 per share. As of November 30, 2003, (i) 40,957,231 shares of Common Stock were issued and outstanding, (ii) no shares of Preferred Stock were issued
and outstanding, (iii) 28,648,286 shares of Common Stock were reserved for issuance upon exercise of outstanding options issued or issuable under the Company’s 1993 Flexible Stock Incentive Plan, 1990 Stock Plan, 1999 Employee Stock Purchase
Plan and 2000 Employee Stock Option Plan (the “Option Plans”), (iv) no shares of Common Stock are reserved for issuance under stock options granted by the Company outside the Option Plans and (v) no shares of Common Stock were
reserved for issuance upon the exercise of outstanding warrants. All the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and nonassessable and free of preemptive rights created by or through the
Company. All of the shares underlying the Company’s outstanding options, warrants and other convertible securities (“Convertible Securities”), have been duly authorized and, when issued in accordance with the agreements or
documents pursuant to which such Convertible Securities were issued, will be validly issued, fully paid and nonassessable and will be free and clear of all Liens imposed by or through the Company other than restrictions imposed by this Agreement and
applicable securities laws. There are no other options, warrants or other rights, convertible debt, agreements, arrangements or commitments of any character obligating the Company or any of its Subsidiaries to issue or sell any shares of capital
stock of or other equity interests in the Company. The Company is not obligated to retire, redeem, repurchase or otherwise reacquire any of its capital stock or other securities. 
  
 (d) The Company has full corporate power and authority to execute, deliver and enter into this Agreement and
the other Transaction Documents and to consummate the transactions contemplated hereby and thereby. All action on the part of the Company, its directors or stockholders necessary for the authorization, execution, delivery and performance of this
Agreement and the other Transaction Documents by the Company, the authorization, sale, issuance and delivery of the Shares contemplated by the Securities Purchase Agreement and the performance of the Company’s obligations hereunder and
thereunder has been taken. The Shares to be purchased on the Closing Date have been duly authorized and, when issued in accordance with this Agreement and the Securities Purchase Agreement, will be validly issued, fully paid and nonassessable and
will be free and clear of all Liens imposed by or through the Company other than restrictions imposed by this Agreement and the Securities Purchase Agreement and applicable securities laws. 







 No preemptive or other rights to subscribe for or purchase equity securities of the Company exists with
respect to the issuance and sale of the Shares by the Company pursuant to this Agreement or the other Transaction Documents. This Agreement and the other Transaction Documents have been duly executed and delivered by the Company and each such
agreement constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to laws of general application relating to bankruptcy, insolvency and the relief of debtors and rules
of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy. 
  
 (e) (i) Included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2002 (the “2002 10-K”) are
true and complete copies of the consolidated audited balance sheets (the “Balance Sheets”) of the Company as of December 31, 2002 and 2001, and the related consolidated audited statements of operations, changes in stockholders’
equity (deficit) and comprehensive income (loss) and cash flows for the years ended December 31, 2002, 2001 and 2000 (the “Financial Statements”), accompanied by the reports of Tanner + Co. and KPMG LLP. The Financial Statements
have been prepared in accordance with United States generally accepted accounting principles (“GAAP”), applied consistently with the past practices of the Company (except as may be indicated in the notes thereto), and as of their
respective dates, fairly present, in all material respects, the consolidated financial position of the Company and the results of its operations as of the time and for the periods indicated therein. The Financial Statements have been prepared and
are in accordance with the accounting books and records of the Company. 
  
 (ii) The Company has provided to the Placement Agent the 2002 10-K. A copy of each report, schedule, effective registration statement and definitive proxy statement filed by the Company with the Commission since
December 31, 2002, including, but not limited to the Company’s Current Reports on Form 8-K filed on February 18, 2003, May 8, 2003 and April 3, 2003 (as the documents may have been amended since the time of their filing, the “Commission
Documents”) has also been made available to the Placement Agent either by physical delivery or via the Commission’s EDGAR System. As of their respective filing dates, each Commission Document complied in all material respects with the
requirements of the Securities Act or the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as applicable, and the rules and regulations of the Commission thereunder applicable to the Commission Documents, and no
Commission Document contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not
misleading. As of their respective filing dates, the financial statements of the Company included in the Commission Documents complied as to form in all material respects with then applicable accounting requirements and with the published rules and
regulations of the Commission with respect thereto, were prepared in accordance with GAAP, applied consistently with the past practices of the Company, and as of their respective dates, fairly presented in all material respects the financial
position of the Company and the results of its operations as of the time and for the periods indicated therein (except as may be indicated in the notes thereto or, in the case of the unaudited statements, as permitted by Form 10-Q, and Regulations
S-K and S-X of the Commission). 







 (iii) The information contained in the Offering Materials does not include any untrue
statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. 
  
 (iv) Since September 30, 2003, neither the Company nor any of
the Company’s Subsidiaries has incurred any liabilities or obligations of any nature, whether or not accrued, absolute, contingent or otherwise, other than liabilities (A) disclosed in the Commission Documents filed prior to the date of this
Agreement, (B) adequately provided for in the Balance Sheets or disclosed in any related notes thereto, (C) not required under GAAP to be reflected in the Balance Sheets, or disclosed in any related notes thereto, (D) incurred in connection with
this Agreement, or (E) incurred in the ordinary course of business. 
  
 (f) Since December 31, 2002, except as disclosed in the Commission Documents, filed subsequent to that date, and as set forth in Schedule 6.5 of the Securities Purchase Agreement, there has not been any
material adverse change in the business, financial condition or operating results of the Company and its Subsidiaries. 
  
 (g) Except as contemplated by this Agreement, the Securities Purchase Agreement or disclosed in the Commission Documents, since December
31, 2002, through the date immediately preceding the Closing Date, neither the Company nor any of its Subsidiaries has (i) issued any stock, options, bonds or other corporate securities other than pursuant to the Option Plans, (ii) borrowed any
amount or incurred or became subject to any liabilities (absolute, accrued or contingent), other than current liabilities incurred in the ordinary course of business and liabilities under contracts entered into in the ordinary course of business,
(iii) discharged or satisfied any lien or adverse claim or paid any obligation or liability (absolute, accrued or contingent), other than current liabilities shown on the Balance Sheets and current liabilities incurred in the ordinary course of
business, (iv) declared or made any payment or distribution of cash or other property to the stockholders of the Company or purchased or redeemed any securities of the Company, (v) mortgaged, pledged or subjected to any lien or adverse claim any of
its properties or assets, except for liens for taxes not yet due and payable or otherwise in the ordinary course of business, (vi) sold, assigned or transferred any of its assets, tangible or intangible, except in the ordinary course of business or
in an amount less than $250,000, (vii) suffered any extraordinary losses or waived any rights of material value other than in the ordinary course of business, (viii) made any capital expenditures or commitments therefor other than in the ordinary
course of business or in an amount less than $250,000, (ix) entered into any other transaction other than in the ordinary course of business in an amount less than $250,000 or entered into any material transaction, whether or not in the ordinary
course of business, (x) made any charitable contributions or pledges, (xi) suffered any damages, destruction or casualty loss, whether or not covered by insurance, affecting any of the properties or assets of the Company or any other properties or
assets of the Company which could, individually or in the aggregate, have or result in a Material Adverse Effect, (xii) made any material change in the nature or operations of the business of the Company or (xiii) entered into any agreement or
commitment to do any of the foregoing. 







 (h) (i) The execution and delivery by the Company of this Agreement and the consummation
of the transactions contemplated hereby will not (A) result in the violation of any provision of the Certificate of Incorporation or By-laws of the Company, (B) result in any violation of any law, statute, rule, regulation, order, writ, injunction,
judgment or decree of any court or governmental authority to or by which the Company or any of its Subsidiaries is bound, or (C) conflict with, or result in a breach or violation of, any of the terms or provisions of, or constitute (with due notice
or lapse of time or both) a default under, any lease, loan agreement, mortgage, security agreement, trust indenture or other agreement to which the Company or any of its Subsidiaries is a party or by which it is bound or to which any of its
properties or assets is subject, nor result in the creation or imposition of any Lien upon any of the properties or assets of the Company or any of its Subsidiaries, in the cases of clauses (ii) and (iii) above, only to the extent such conflict,
breach, violation, default or Lien reasonably could, individually or in the aggregate, have or result in a Material Adverse Effect. 
  
 (ii) No consent, approval, license, permit, order or authorization of, or registration, declaration or filing with, any court,
administrative agency or commission or other governmental authority remains to be obtained or is otherwise required to be obtained by the Company in connection with the authorization, execution and delivery of this Agreement or the consummation of
the transactions contemplated hereby, including, without limitation the issue and sale of the Shares, except (i) filings as may be required to be made by the Company after the Closing with (A) the Commission, (B) the Over the Counter Bulletin Board
and (C) state blue sky or other securities regulatory authorities. 
  
 (i) The Company and its Subsidiaries have all licenses, permits and other governmental authorizations currently required for the conduct of its current business and the ownership of its properties and is in all
respects complying therewith, except where the failure to have such licenses, permits and other governmental authorizations would not have a Material Adverse Effect. 
  
 (j) Except as disclosed in the Company’s Commission Documents and Schedule 6.9 of the Securities
Purchase Agreement, there are no claims, actions, suits, investigations or proceedings pending or, to the Company’s knowledge, threatened against the Company and its Subsidiaries or their respective assets, at law or in equity, by or before any
governmental authority, or by or on behalf of any third-party. 
  
 (k) The Company is not, and following the Closing of the Offering will not be, an “investment company” within the meaning of that term under the Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder. 
  
 (l)
Except as disclosed in the Company’s Commission Documents, neither the Company nor any of its Subsidiaries is (i) in default under or in violation of any indenture, loan or credit agreement or any other agreement or instrument to which it is a
party of by which it or any of its properties is bound or (ii) in violation of any order, decree or judgment of any court, arbitrator or governmental body. 







 (m) The Company has not since December 31, 2002, received notice (written or oral) from
any stock exchange or market on which the Common Stock is or has been listed (or on which it has been quoted) to the effect that the Company is not in compliance with the continuing listing or maintenance requirements of the exchange or market.

  
 (n) (i) Schedule 6.13(a) of the
Securities Purchase Agreement sets forth a true, correct and complete list of all patents, trademarks, service marks, trade names and registered copyrights (and all applications for any of the foregoing), as well as any material licenses running to
or from, or used by, the Company in the conduct of the Company’s business, that have been filed by the Company with the Commission as material agreements pursuant to the Securities Act, the Exchange Act and the rules and regulations thereunder
(“Material Licenses”). There are no other patents, trademarks, service marks, trade names, copyrights, or Material Licenses necessary for the conduct of the Company’s business as presently conducted or currently proposed to be
conducted. 
  
 (ii) The Company: (A) owns or has
the right to use, free and clear of all Liens and other restrictions, all patents, trademarks, service marks, trade names, registered copyrights (and all applications for any of the foregoing), permits, grants and licenses and all other intangible
assets, properties and rights (collectively, “Intangible Property”) and all rights with respect thereto as used in or necessary for the conduct of the Company’s business as presently conducted or currently proposed to be
conducted; (B) has taken all necessary action to maintain and protect each item of Intangible Property used in or necessary for the conduct of the Company’s business as presently conducted or currently proposed to be conducted, and all patents,
trademarks, service marks, copyrights and registrations therefor held by the Company are valid and subsisting in the jurisdictions in which they are used; (C) is not infringing upon, misappropriating or otherwise acting adversely to the right of any
person or entity under or with respect to any patent, trademark, service mark, trade name, copyright, trade secret or other intellectual property or proprietary right or any license with respect thereto where such infringement, misappropriation or
adverse action reasonably would individually in or in the aggregate result in a Material Adverse Effect; and (D) is current in payments of royalties and other fees to owners or licensors of, or other claimants to, any patent, trademark, service
mark, trade name, copyright, computer software or other intangible asset used in the conduct of the Company’s business. The Intangible Property has not been and is not the subject of any pending or threatened litigation or claim of infringement
or misappropriation or any claims challenging the legality, validity, enforceability, registration, use or ownership of the Intangible Property or any part thereof. The transactions contemplated by this Agreement will not adversely affect the right,
title and interest of the Company in and to the Intangible Property. 
  
 (iii) The Company owns and/or has the right to use all product rights, manufacturing rights, trade secrets, including know-how, formulas, patterns, compilations, programs, devices, methods, techniques, processes,
inventions, designs, technical data, computer software (in both source code and object code forms and all documentation therefor), and all information that derives independent economic value, actual or potential, from not being generally known or
known by competitors and which the Company has taken reasonable steps to maintain in secret (collectively, “Trade Secret Rights”) required for or incident to the conduct of the Company’s business, as presently conducted and as
currently proposed to be conducted, in 







 each case free and clear of any Lien, claim or right of others, including without limitation, former
employers of its employees. 
  
 (iv) The Company
has taken reasonable security measures to protect the secrecy, confidentiality and value of all Trade Secret Rights and all Inventions (as defined below). Each of the Company’s employees and other persons or entities who, either alone or in
concert with others, developed, invented, discovered, derived, programmed or designed Trade Secret Rights or Inventions, or, to the Company’s knowledge, who has knowledge of or access to information about Trade Secret Rights or Inventions, has
entered into a written agreement with the Company which provides that (A) these Trade Secret Rights and Inventions are proprietary to the Company and are not to be divulged, misused or misappropriated, and (B) these Trade Secret Rights and
Inventions are to be disclosed by such employees and such persons to the Company and transferred by them to the Company, without any further consideration being given therefor by the Company, together with all of such employee’s or other
person’s right, title and interest in and to such Trade Secret Rights and Inventions and all patents, trademarks, service marks, trade names, copyrights, licenses and rights with respect to such Trade Secret Rights and Inventions. As used
herein, “Inventions” means all inventions, developments and discoveries which during the period of an employee’s or other person’s service to the Company he or she makes or conceives of, either solely or jointly with others, that
relate to any subject matter with which his or her work for the Company may be concerned, or relate to or are connected with the business, products, services or projects of the Company, or relate to the actual or demonstrably anticipated research or
development of the Company or involve the use of the Company’s time, material, facilities or trade secret information. 
  
 (iv) The Company has not sold, transferred, assigned, licensed (other than in the Company’s ordinary course of business) or subjected
to any Lien any Intangible Property, Trade Secret Rights or Inventions, or any interest therein, necessary or useful for the development, manufacture, use, operation or sale of any product or service presently under development or manufactured, sold
or rendered by the Company. 
  
 (v) No current or
prior director, officer, employee, agent or shareholder of the Company owns or has any right in any Intangible Property, Trade Secret Rights or Inventions of the Company, or any inventions, developments or discoveries used in or necessary for the
conduct of the Business as presently conducted or currently proposed to be conducted. 
  
 (o) The Company and its Subsidiaries have obtained all permits, licenses and other authorizations which are required under United States
federal, state and local laws relating to pollution or protection of the environment, including laws related to emissions, discharges, releases or threatened releases of pollutants, contaminants or hazardous or toxic material or wastes into ambient
air, surface water, ground water or land, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling or pollutants, contaminants or hazardous or toxic materials or wastes
(“Environmental Laws”). The Company and its Subsidiaries are in compliance with all terms and conditions of the required permits, licenses and authorizations and are also in full compliance with all other limitations, restrictions,
conditions and requirements contained in the Environmental Laws or contained in any plan, except where the failure to so comply would not have a Material Adverse Effect. The Company 







 is not aware of, nor has the Company received notice of, any events, conditions, circumstances, actions
or plans which may interfere with or prevent continued compliance or which would give rise to any liability under any Environmental Laws. 
  
 (p) All material agreements to which the Company and its Subsidiaries are parties and which are required to have been filed by the Company
pursuant to the Securities Act, the Exchange Act and the rules and regulations thereunder have been filed by the Company with the Commission. As of the date hereof, except as disclosed in the Commission Documents, and except for those agreements
that by their terms are no longer in effect, each such agreement is in full force and effect and is binding on the Company and, to the Company’s knowledge, is binding upon such other parties, in each case in accordance with its terms, and
neither the Company nor, to the Company’s knowledge, any other party thereto is in material breach of or material default under any such agreement. Except as disclosed in the Commission Documents, the Company has not received any written notice
regarding the termination of any such agreements. 
  
 (q) The Company has good title to all the properties and assets reflected as owned by it in the consolidated financial statements included in the Offering Materials, subject to no lien, mortgage, pledge, charge or encumbrance of any kind
except (i) those, if any, reflected in such consolidated financial statements or (ii) those which are not material in amount and do not adversely affect the use made and intended to be made of such property by the Company. The Company holds its
leased properties under valid and binding leases. Except as disclosed in the Offering Materials, the Company owns or leases all such properties as are necessary to its operations as now conducted. 
  
 (r) The Company and its Subsidiaries maintain insurance of
the types, against such losses and in the amounts and with such insurers as are customary in the Company’s industry and otherwise reasonably prudent, including, but not limited to, insurance covering all real and personal property owned or
leased by the Company against theft, damage, destruction, acts of vandalism and all other risks customarily insured against by similarly situated companies, all of which insurance is in full force and effect. 
  
 (s) The Company and its Subsidiaries are in compliance in all
material respects with all applicable laws and all orders of, and agreements with, any governmental authority applicable to the Company, any Subsidiary or any of their respective assets. The Company and the Subsidiaries have all permits,
certificates, licenses, approvals and other authorizations required under applicable laws or necessary in connection with the conduct of their businesses, except where the failure to have such permits, certificates, licenses, approvals and other
authorizations would not have a Material Adverse Effect. 
  
 (t) Except as set forth Schedule 6.19(a) of the Securities Purchase Agreement, the Company and its Subsidiaries have in all material respects filed or obtained extensions of all federal, state, local and
foreign income, excise, franchise, real estate, sales and use and other tax returns heretofore required by any law to which the Company is bound to be filed by it. All material federal, state, county, local, foreign or other income taxes which have
become due or payable by the Company or any of its 







 Subsidiaries (collectively, “Taxes”), have been paid in full or are adequately provided
for in accordance with GAAP on the financial statements of the applicable person. No Liens arising from or in connection with Taxes have been filed and are currently in effect against the Company or any of its Subsidiaries, except for Liens for
Taxes which are not yet due or which would not have a Material Adverse Effect. Except as set forth Schedule 6.19(a) of the Securities Purchase Agreement, no audits or investigations are pending or, to the knowledge of the Company, threatened
with respect to any tax returns or Taxes of the Company or any of its Subsidiaries. 
  
 (u) The Company is in compliance in all material respects with all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and published interpretations thereunder (“ERISA”); no “reportable event” (as defined in ERISA) has occurred with respect to any “pension plan” (as
defined in ERISA) for which the Company would have any material liability; the Company has not incurred and does not expect to incur liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “pension
plan” or (ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended, including the regulations and published interpretations thereunder (the “Code”); and each “pension plan” for which the Company would
have any liability that is intended to be qualified under Section 401(a) of the Code is so qualified in all material respects and nothing has occurred, whether by action or by failure to act, which would cause the loss of such qualification.

  
 (v) The Company is not involved in any
material labor dispute with its employees nor is any such dispute, to the Company’s knowledge, threatened or imminent. 
  
 (w) Assuming the truth of Purchasers’ representations and acknowledgments contained in Section 6 of the Securities Purchase
Agreement, neither the Company nor any person acting on its behalf (other than Purchasers, as to whom the Company makes no representations) has offered or sold the Shares by means of any general solicitation or general advertising within the meaning
of Rule 502(c) under the Securities Act. The Company has not sold the Shares to anyone other than Purchasers designated in Securities Purchase Agreement. Each Share certificate shall bear substantially the same legend set forth in
Section 8 of the Securities Purchase Agreement for at least so long as required by the Securities Act. 
  
 (x) Other than Brean Murray & Co., Inc. (as placement agent on behalf of the Company), and any subagents it may appoint pursuant to
the Offering Materials, no finder, broker, agent, financial person or other intermediary has acted on behalf of the Company in connection with the sale of the Shares by the Company or the consummation of this Agreement or any of the transactions
contemplated hereby. The Company has not had any direct or indirect contact with any other investment banking firm (or similar firm) with respect to the offer of the Shares by the Company to Purchaser or Purchaser’s subscription for the Shares.








 4. Placement Agent Appointment and Compensation. (a) The Company hereby appoints the Placement
Agent and the Placement Agent agrees to act on a best efforts basis, as the Company’s exclusive agent in connection with the Offering. The Company has not and will not make, or permit to be made, any offers or sales of the Shares other than
through the Placement Agent without its prior written consent. The Placement Agent has no obligation to purchase any of the Shares. The agency of the Placement Agent hereunder shall continue until the later of the Termination Date or the Closing (as
defined below). 
  
 (b) The Company has caused to
be delivered, or made available via EDGAR, to the Placement Agent copies of the Offering Materials and the Commission Documents and has consented, and hereby consents, to the use of such copies for the purposes permitted by the Securities Act and
applicable securities laws, and hereby authorizes the Placement Agent to use the Offering Materials and the Commission Documents in connection with the sale of the Shares until the Termination Date, and no person other than the Placement Agent is or
will be authorized to give any information or make any representations other than those contained in the Offering Materials or the Commission Documents or to use any information or representations other than those contained in the Offering Materials
or the Commission Documents in connection with the sale of the Shares. 
  
 (c) The Company will cooperate with the Placement Agent by making available to its representatives such information as may be requested in making a reasonable investigation of the Company and its affairs and shall
provide access to such employees as shall be reasonably requested. 
  
 (d) At the Closing (as defined below), the Company shall pay to the Placement Agent a placement fee (the “Placement Agent’s Fee”) equal to seven percent (7%) of the Offering Price of all the
Shares sold in such Closing (as defined below), or six percent (6%) of the Offering Price of all the Shares sold if such Closing (as defined below) occurs after the Closing Date (as defined below), and for which funds are disbursed to the Company.

  
 (e) In addition to the Placement Agent’s
Fee and regardless of whether the Offering is consummated, the Company shall promptly, upon request therefor, reimburse the Placement Agent for all reasonable expenses (including without limitation fees and disbursements of counsel and all travel,
lodging, meal and other out-of-pocket expenses) incurred by the Placement Agent in connection with the Offering up to a maximum of $50,000. 
  
 5. Subscription and Closing Procedures. (a) Each prospective purchaser will be required to complete and execute the Securities Purchase Agreement
and a Confidential Purchaser Questionnaire, which will be forwarded or delivered to the Placement Agent at the Placement Agent’s offices at the address set forth in Section 12 hereof, together with the subscriber’s certified check or wire
transfer of immediately available United States funds in the full amount of the purchase price for the number of Shares desired to be purchased. 
  
 (b) Pending the Closing (as defined below), all funds paid hereunder shall be deposited by the Placement Agent in a separate account
maintained by Wachovia Bank, National 
  







 Association as escrow agent (the “Escrow Agent”) in compliance with Rule 15c2-4 of the
Exchange Act for the benefit of purchasers in the Offering. If the Company accepts subscriptions for all of the Shares at or prior to the Closing Date (as defined below), then all subscription proceeds received for subscriptions accepted by the
Placement Agent shall be paid over by the Escrow Agent to the Company at the Closing, net of the Placement Agent’s Fee and offering expenses, which shall be paid to the appropriate parties at such Closing. If the Company shall not have received
and accepted a purchaser’s subscription, then that subscription shall be void and all funds paid hereunder by such purchaser, without deduction therefrom or interest thereon, shall be promptly returned by the Escrow Agent to such purchaser.

  
 (c) The closing (the
“Closing”) of the purchase and sale of the Shares (the “Offering”) will take place at the offices of Piper Rudnick LLP, 1251 Avenue of the Americas, New York, New York 10020, at 5:00 p.m., local time, on January 12,
2003. The Closing may take place at another time, place or earlier date as is mutually agreed upon by the Company and purchasers in the Offering. The date of the Closing is referred to as the “Closing Date.” At the Closing, the Company
will register in the name of each purchaser that number of Shares being purchased by such purchaser in accordance with Exhibit A to the Securities Purchase Agreement, against payment of each purchaser’s Purchase Price (as defined in the
Securities Purchase Agreement”) by delivery of a certified check or by wire transfer of immediately available United States funds payable to the Company’s account. The Shares will be registered in the purchasers’ names or the names of
the nominees of purchasers pursuant to instructions delivered to the Company not less than two (2) business days prior to the Closing Date and will be delivered to purchasers within ten (10) business days after the Closing Date. 
  
 6. Further Covenants. The Company hereby covenants and agrees that:

  
 (a) Except with the prior written consent of
the Placement Agent, the Company shall not, at any time prior to the Closing, take any action which would cause any of the representations and warranties made by it in this Agreement not to be complete and correct on and as of the Closing Date with
the same force and effect as if such representations and warranties had been made on and as of each such date. 
  
 (b) If, at any time prior to the Closing, any event shall occur which does or may materially affect the Company or as a result of which it
might become necessary to amend or supplement the Offering Materials so that the representations and warranties herein remain true, or in case it shall, in the opinion of counsel to the Placement Agent, be necessary to amend or supplement the
Offering Materials to comply with Regulation D or any other applicable securities laws or regulations, the Company will promptly notify the Placement Agent and shall, at its sole cost, prepare and furnish to the Placement Agent copies of appropriate
amendments and/or supplements in such quantities as the Placement Agent may request. The Company will not at any time, whether before or after the Closing, prepare or use any amendment or supplement to the Offering Materials of which the Placement
Agent will not previously have been advised and furnished with a copy, or to which the Placement Agent or its counsel will have objected in writing or orally (confirmed in writing within twenty-four (24) hours), or which is not in compliance with
the Securities Act and the requirements of all other rules and regulations (the “Regulations”) and other applicable securities laws. As soon as the 







 Company is advised thereof, the Company will advise the Placement Agent and its counsel, and confirm the
advice in writing, of any order preventing or suspending the use of the Offering Materials, or the suspension of the qualification or registration of the Shares for offering or the suspension of any exemption for such qualification or registration
of the Shares for offering in any jurisdiction, or of the institution or threatened institution of any proceedings for any of such purposes, and the Company will use its best efforts to prevent the issuance of any such order and, if issued, to
obtain as soon as reasonably possible the lifting thereof. 
  
 (c) The Company shall comply with the Securities Act, the Regulations, the Exchange Act and the rules and regulations thereunder, all applicable state securities laws and the rules and regulations thereunder in the
states in which the Placement Agent’s counsel has advised the Placement Agent that the Shares are qualified or registered for sale or exempt from such qualification or registration, so as to permit the continuance of the sales of the Shares,
and will file with the Commission, and shall promptly thereafter forward to the Placement Agent, any and all reports on Form D as are required. 
  
 (d) The Company shall use its best efforts to qualify the Shares for sale under the securities laws of such jurisdictions (within the
United States and its territories) as may be mutually agreed to by the Company and the Placement Agent, and the Company will make such applications and furnish information as may be required for such purposes, provided that the Company will not be
required to qualify as a foreign corporation in any jurisdiction. The Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualifications in effect for so long a period as the
Placement Agent may reasonably request. 
  
 (e)
The Company shall place a legend on the certificates representing the Shares stating that the securities evidenced thereby have not been registered under the Securities Act or applicable state securities laws, setting forth or referring to the
applicable restrictions on transferability and sale of such securities under the Securities Act and applicable state laws. 
  
 (f) The Company shall apply the net proceeds from the sale of the Shares to general corporate and working capital purposes. Except as
specifically set forth in the Offering Materials, the net proceeds of the Offering shall not be used to repay indebtedness to officers, directors or stockholders of the Company without the prior written consent of the Placement Agent, except for the
reimbursement for reasonable and necessary expenses which are related to Company business or which are incurred in connection with attendance at board, committee or stockholder meetings. 
  
 (g) During the Offering Period, the Company shall make available for review by prospective purchasers of the
Shares during normal business hours at the Company’s offices, upon their request, copies of the Company’s material agreements to the extent that such disclosure shall not violate any obligation on the part of the Company to maintain the
confidentiality thereof and shall afford each prospective purchaser of Shares the opportunity to ask questions of and receive answers from an officer of the Company concerning the terms and conditions of the Offering and the opportunity to obtain
such 







 other additional information necessary to verify the accuracy of the Offering Materials and the
Commission Documents to the extent it possesses such information or can acquire it without unreasonable expense. 
  
 (h) In connection with the Placement Agent’s due diligence investigation, the Company shall cooperate with the Placement Agent and
the Placement Agent’s counsel by making available to the Placement Agent’s representatives such information as may be appropriate in making a reasonable investigation of the Company and its affairs. 
  
 (i) The Company shall pay all reasonable expenses incurred in
connection with the preparation and printing of all necessary offering documents and instruments related to the Offering and the issuance of the Shares and will also pay the Company’s own expenses for accounting fees, legal fees, and other
costs involved with the Offering. The Company will provide at its own expense such quantities of the Offering Materials and other documents and instruments relating to the Offering as the Placement Agent may reasonably request. In addition, the
Company will pay all reasonable filing fees, costs and legal fees for Blue Sky services and related filings and expenses of counsel with respect to Blue Sky qualifications, if any, and the preparation, filing of the Form D referred to in (l) below
and all costs and expenses of the Escrow Agent. 
  
 (j) Until the Termination Date, neither the Company nor any person or entity acting on its behalf will negotiate with any other placement agent or underwriter with respect to a private or public offering of the Company’s or any
subsidiary’s debt or equity securities. Neither the Company nor anyone acting on its behalf will, until the Termination Date, without the prior written consent of the Placement Agent, offer for sale to, or solicit offers to subscribe for Shares
or other securities of the Company from, or otherwise approach or negotiate in respect thereof with, any other person. 
  
 (k) Prior to the Closing, the Company will not incur any material indebtedness or dispose of any material assets or make any material
acquisition or change in its business or operations, except with the Placement Agent’s knowledge or consent. 
  
 (l) The Company shall file a Notice of Sales of Securities on Form D with the Commission no later than fifteen (15) days after the first
sale of the Shares. The Company shall file promptly such amendments to such Notice on Form D as shall become necessary and shall also comply with any filing requirement imposed by the laws of any state of jurisdiction in which offers and sales are
made. The Company shall furnish the Placement Agent with copies of all filings. 
  
 (m) The Company shall not, during the period commencing on the date hereof and ending on the later of the Termination Date and the
Closing, issue any press release or other public communication, or hold any press conference with respect to the Company’s financial condition, results of operations, the Offering or the Company entering into a material contract, without the
prior consent of the Placement Agent, which consent shall not be unreasonably withheld or delayed, subject to the Company’s obligation to comply with applicable securities laws. 







 7. Conditions of Placement Agent’s Obligations. The obligations of the Placement Agent
hereunder are subject to the fulfillment or waiver by the Placement Agent, at or before the Closing (unless the Placement Agent specifically agrees in writing to accept fulfillment of such condition after the Closing), of the following additional
conditions: 
  
 (a) Each of the representations
and warranties of the Company contained in this Agreement which are qualified as to materiality must be true and correct in all respects and each of the representations and warranties of the Company contained in this Agreement which are not
qualified as to materiality must be true and correct in all material respects as of the Closing Date. 
  
 (b) The Company shall have performed and complied in all material respects with all agreements, covenants and conditions required to be
performed and complied with by it under the Transaction Documents at or before the Closing. 
  
 (c) No order suspending the use of the Offering Materials or enjoining the offering or sale of the Shares shall have been issued, and no
proceedings for that purpose or a similar purpose shall have been initiated or pending, or, to the best of the Company’s knowledge, are contemplated or threatened nor has any order been issued halting the trading of the Shares on the Over the
Counter Bulletin Board Exchange. 
  
 (d)
Immediately prior to the consummation of the Closing, the Company will have an authorized capitalization as set forth in the Commission Documents. 
  
 (e) The Placement Agent shall have received certificates of the Chief Executive Officer and Chief Financial Officer of the Company, dated
as of the Closing Date, certifying in their capacity as officers of the Company, in such detail as the Placement Agent may reasonably request, as to the fulfillment of the conditions set forth in subparagraphs (a), (b), (c) and (d) above.

  
 (f) The Company shall have delivered to the
Placement Agent (i) a currently dated good standing certificate from the Secretary of State of the State of Delaware, (ii) certified resolutions of the Company’s Board of Directors approving this Agreement and the other Transaction Documents,
and the transactions and agreements contemplated by this Agreement and the other Transaction Documents (iii) a copy of the Certificate of Incorporation of the Company and all amendments thereto, certified by the Secretary of State of the State of
Delaware and the Secretary of the Company, (iv) a copy of the amended Bylaws of the Company, certified by the Secretary of the Company and (v) the names of the officers of the Company authorized to sign this Agreement and the other Transaction
Documents to be executed by each such officer, together with the true signatures of each such officer. 
  
 (g) At Closing, the Chief Executive Officer and the Chief Financial Officer of the Company shall have provided a certificate to the
Placement Agent confirming that there have been no material and adverse changes in the condition (financial or otherwise) or prospects of the Company from the date of the financial statements included in the 







 Offering Materials or the Commission Documents other than as set forth or contemplated in the Offering
Materials and the Securities Purchase Agreement. 
  
 (h) At Closing, the Company shall have (i) delivered to the Placement Agent the Placement Agent’s Fee as set forth in Section 4(d) hereof and (ii) reimbursed the Placement Agent for its expenses, including the fees and disbursements of
the Placement Agent’s counsel. 
  
 (i) There
shall have been delivered to the Placement Agent a signed opinion of counsel to the Company (the “Company Counsel”), dated as of the Closing Date, in form and substance satisfactory to counsel to the Placement Agent; a form of which
is attached as Exhibit A hereto. 
  
 (j)
All proceedings taken at or prior to the Closing in connection with the authorization, issuance and sale of the Shares will be satisfactory in form and substance to the Placement Agent and its counsel, and such counsel shall have been furnished with
all such documents and certificates as they may reasonably request upon reasonable prior notice in connection with the transactions contemplated hereby. 
  
 8. Indemnification. (a) The Company will (i) indemnify and hold harmless the Placement Agent and its officers, directors, employees, agents and
each person, if any, who controls the Placement Agent (“Indemnitee”) within the meaning of the Securities Act from and against any and all losses, claims, damages, liabilities or expenses whatsoever (or actions or proceedings or
investigations in respect thereof), joint or several (which will, for all purposes of this Agreement, include, but not be limited to, all costs of defense and investigation and all attorneys’ fees, including appeals), to which any Indemnitee
may become subject, under the Securities Act or otherwise, in connection with the offer and sale of the Shares; and (ii) reimburse each Indemnitee for any legal or other expenses incurred in connection with investigating or defending against any
such loss, claim, damage, liability, action, proceeding or investigation; provided, however, that the Company will not be liable in any such case to the extent that any such claim, damage or liability results from (A) an untrue statement or alleged
untrue statement of a material fact made in the Offering Materials or an omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the
circumstances under which they were made in reliance upon and in conformity with written information furnished to the Company by the Placement Agent or any such controlling persons specifically for use in the preparation thereof, or (B) any
violations by the Placement Agent of the Securities Act or state securities laws which do not result from a violation thereof by the Company or any of its affiliates. In addition to the foregoing agreement to indemnify and reimburse, the Company
will indemnify and hold harmless each Indemnitee against any and all losses, claims, damages, liabilities or expenses whatsoever (or actions or proceedings or investigations in respect thereof), joint or several (which shall for all purposes of this
Agreement, include, but not be limited to, all costs of defense and investigation and all attorneys’ fees, including appeals) to which any Indemnitee may become subject insofar as such costs, expenses, losses, claims, damages or liabilities
arise out of or are based upon the claim of any person or entity that he or it is entitled to broker’s or finder’s fees from any Indemnitee in connection with the Offering. The foregoing indemnity agreements will be in addition to any
liability which the Company may otherwise have. 







 (b) The Placement Agent will indemnify and hold harmless the Company, its officers,
directors, employees and each person, if any, who controls the Company within the meaning of the Securities Act against any and all losses, claims, damages or liabilities or expenses whatsoever (or actions, proceedings or investigations in respect
thereof) to which the Company or any such person may become subject under the Securities Act or otherwise insofar as such losses, claims, damages or liabilities are based upon any untrue statement or alleged untrue statement of any material fact
contained in the Offering Materials, or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading (provided, however
that the indemnity of the Placement Agent will apply in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Offering Materials in reliance upon and
in conformity with written information furnished to the Company by the Placement Agent specifically for use in the preparation thereof), and will reimburse the Company or any such person for any legal or other expenses incurred in connection with
investigating or defending against any such loss, claim, damage, liability or action, proceeding or investigation to which such indemnity obligation applies. The foregoing indemnity agreements will be in addition to any liability which the Placement
Agent may otherwise have. 
  
 (c) Promptly after
receipt by an indemnified party under this Section 8 of notice of the commencement of any action, claim, proceeding or investigation (“Action”), such indemnified party, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, will notify the indemnifying party of the commencement thereof, but the omission to so notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party under
this Section 8 unless the indemnifying party has been substantially prejudiced by such omission. The indemnifying party will be entitled to participate in, and, to the extent that it may wish, jointly with any other indemnifying party, assume the
defense thereof subject to the provisions herein stated, with counsel reasonably satisfactory to such indemnified party. The indemnified party will have the right to employ separate counsel in any such Action and to participate in the defense
thereof, but the fees and expenses of such counsel will not be at the expense of the indemnifying party if the indemnifying party has assumed the defense of the Action with counsel reasonably satisfactory to the indemnified party, provided, however,
that if the indemnified party shall be requested by the indemnifying party to participate in the defense thereof or shall have concluded in good faith and specifically notified the indemnifying party either that there may be specific defenses
available to it which are different from or additional to those available to the indemnifying party or that such Action involves or could have a material adverse effect upon it with respect to matters beyond the scope of the indemnity agreements
contained in this Agreement, then the counsel representing it, to the extent made necessary by such defenses, shall have the right to direct such defenses of such Action on its behalf and in such case the fees and expenses of such counsel in
connection with any such participation or defenses shall be paid by the indemnifying party (it being acknowledged that in connection with any such action, the indemnifying party shall not be liable for the expenses of more than one separate
counsel). No settlement of any Action against an indemnified party will be made without the consent of the indemnifying party and the indemnified party, which consent shall not be unreasonably withheld or delayed in light 







 of all factors of importance to such party and no indemnifying party shall be liable to indemnify any
person for any settlement of any such claim effected without such indemnifying party’s consent. 
  
 9. Contribution. To provide for just and equitable contribution, if (i) an indemnified party makes a claim for indemnification pursuant to Section
8 hereof and it is finally determined, by a judgment, order or decree not subject to further appeal, that such claims for indemnification may not be enforced, even though this Agreement expressly provides for indemnification in such case; or (ii)
any indemnified or indemnifying party seeks contribution under the Securities Act, the Exchange Act or otherwise, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative fault of the Company, on the one hand, and the Placement Agent, on the other hand, in connection with the statements or omissions which resulted in such losses, claims,
damages, liabilities or expenses (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and the Placement Agent, on the other hand, shall be deemed to
be in the same proportion as the total net proceeds from the Offering (before deducting expenses) received by the Company bear to the total commissions and fees received by the Placement Agent. The relative fault, in the case of an untrue statement,
alleged untrue statement, omission or alleged omission will be determined by, among other things, whether such statement, alleged statement, omission or alleged omission relates to information supplied by the Company or by the Placement Agent, and
the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement, alleged statement, omission or alleged omission. The Company and the Placement Agent agree that it would be unjust and
inequitable if the respective obligations of the Company and the Placement Agent for contribution were determined by prorata allocation of the aggregate losses, liabilities, claims, damages and expenses or by any other method or
allocation that does not reflect the equitable considerations referred to in this Section 9. No person guilty of a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any
person who is not guilty of such fraudulent misrepresentation. For purposes of this Section 9, each person, if any, who controls the Placement Agent within the meaning of the Securities Act will have the same rights to contribution as the Placement
Agent, and each person, if any, who controls the Company within the meaning of the Securities Act will have the same rights to contribution as the Company, subject in each case to the provisions of this Section 9. Anything in this Section 9 to the
contrary notwithstanding, no party will be liable for contribution with respect to the settlement of any claim or action effected without its prior written consent. This Section 9 is intended to supersede, to the extent permitted by law, any right
to contribution under the Securities Act, the Exchange Act or otherwise available. 
  
 10. Termination. (a) The Offering may be terminated by the Placement Agent at any time prior to the expiration of the Offering Period as contemplated in Section 1(b) hereof (“Expiration Date”)
in the event (i) that the Closing shall not have been consummated on or before January 12, 2004, (ii) that a court of competent jurisdiction or a governmental, regulatory or administrative agency or commission shall have issued a non-appealable
final order, decree or ruling or taken any other action having the effect of permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement, (iii) that a breach is made by the Company of any
representation or warranty contained in this Agreement which is 







 qualified as to materiality or a material breach is made by the Company of any representation or warranty contained in
this Agreement which is not qualified as to materiality, in each case that cannot be or has not been cured within ten (10) days after the giving of written notice to the Company of such breach, (iv) of nonfulfillment by the Company of any covenant
or agreement contained in this Agreement that cannot be or has not been cured within ten (10) days after the giving of written notice to the Company of such breach, or (v) any event occurs which could adversely affect the transactions contemplated
hereby or the other Transaction Documents or the ability of the parties to perform thereunder. If the Offering is not completed for any reason, the Company will reimburse the Placement Agent for any and all out-of-pocket expenses incurred by the
Placement Agent with respect to the Offering as set forth in Section 4(e). 
  
 (b) This Offering may be terminated by the Company at any time prior to the Expiration Date in the event that (i) the Placement Agent shall have failed to perform in any material respect any of its obligations
hereunder or (ii) there shall occur any event described in Section 10(a)(ii) above not occasioned by or arising out of or in connection with any material breach or failure hereunder on the part of the Company. In the event of any such termination by
the Company, the Placement Agent shall be entitled to retain all Placement Agent’s Fees earned with respect to Shares actually sold prior to such termination, plus the non-refundable amounts paid to Placement Agent’s counsel for Blue Sky
counsel fees and all fees and expenses of the Escrow Agent, if any, but the Company shall owe no other amounts whatsoever except as may be due under any indemnity or contribution obligation provided herein or any other Transaction Document, at law
or otherwise. 
  
 (c) Upon any such termination,
at the request of the Placement Agent, all monies received in respect of subscriptions for Shares not accepted by the Company shall be promptly returned to such subscribers without interest, penalty, expense or deduction. 
  
 11. Survival. (a) The obligations of the parties to pay any costs and
expenses hereunder and to provide indemnification and contribution as provided herein shall survive any termination hereunder. 
  
 (b) The respective indemnities, agreements, representations, warranties and other statements of the Company set forth in or made pursuant
to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of, and regardless of any access to information by, the Company or the Placement Agent, or any of their officers or directors or any
controlling person thereof, and will survive the offer and sale of the Shares. 
  
 12. Notices. All communications hereunder will be in writing and, except as otherwise expressly provided herein or after notice by one party to the other of a change of address, if sent to the Placement Agent,
will be mailed by registered or certified mail, postage prepaid, return receipt requested, sent by overnight express delivery service, delivered personally, receipt acknowledged, or facsimile and confirmed to Brean Murray & Co., Inc., 570
Lexington Avenue, New York, New York 10022, Attn: Mr. A. Brean Murray, facsimile: (212) 702-6649; with a copy to Piper Rudnick LLP, 1251 Avenue of the Americas, New York, New York 10020, Attn: Michael Hirschberg, Esq., facsimile: (212) 835-6001; and
if sent to the Company, will be mailed by registered or certified mail, postage prepaid, return receipt requested, sent by overnight express delivery service, delivered personally, receipt 







 acknowledged, or facsimile and confirmed to TenFold Corporation, 698 West 10000 South, South Jordan, Utah 84095, Attn:
Nancy M. Harvey, facsimile: (801) 619-8204; with a copy to Munger, Tolles & Olson LLP, 335 South Grand Avenue, 35th Floor, Los Angeles, California 90071-1560, Attn: Rob Knauss, facsimile: (213) 687-3702, or at such other address or facsimile number as any party may from time to time specify to the others. Such notice shall be deemed given when
actually received by the addressee; provided, if a notice is received other than during normal business hours at the place of receipt it shall be deemed received at the opening of business on the next regular business day at the place of receipt.

  
 13. Parties in Interest. The Agreement herein set forth
is made solely for the benefit of the Placement Agent, the Company, any person controlling either of them, and their respective executors, administrators, successors and assigns; and no other person will acquire or have any rights under or by virtue
of this Agreement. The term “successors and assigns” will not include any purchaser, as such purchaser, of the Shares. 
  
 14. APPLICABLE LAW, COSTS, ETC. THIS AGREEMENT WILL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE (WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW). THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE OR UNITED STATES FEDERAL COURT
SITTING IN NEW YORK COUNTY OVER ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY AGREEMENT CONTEMPLATED HEREBY, AND THE COMPANY HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE
HEARD AND DETERMINED IN SUCH STATE OR FEDERAL COURT. THE COMPANY FURTHER WAIVES ANY OBJECTION TO VENUE IN SUCH STATE AND ANY OBJECTION TO AN ACTION OR PROCEEDING IN SUCH STATE ON THE BASIS OF A NON-CONVENIENT FORUM. THE COMPANY FURTHER AGREES THAT
ANY ACTION OR PROCEEDING BROUGHT AGAINST THE PLACEMENT AGENT SHALL BE BROUGHT ONLY IN NEW YORK STATE OR UNITED STATES FEDERAL COURTS SITTING IN NEW YORK COUNTY. SERVICE OF PROCESS MAY BE MADE UPON THE COMPANY BY MAILING A COPY THEREOF TO IT, BY
CERTIFIED OR REGISTERED MAIL, AT ITS ADDRESS TO BE USED FOR THE GIVING OF NOTICES UNDER THIS AGREEMENT. THE COMPANY AND THE PLACEMENT AGENT EACH AGREES TO WAIVE ITS 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. THE PLACEMENT AGENT OR THE COMPANY, AS THE CASE MAY BE, SHALL BE ENTITLED TO COSTS AND REASONABLE ATTORNEY’S FEES IN THE EVENT IT PREVAILS IN ANY CLAIMS, ACTIONS,
AWARDS OR JUDGMENT UNDER THIS AGREEMENT. 
  
 15.
Miscellaneous. No provision of this Agreement may be changed or terminated except by a writing signed by the party or parties to be charged therewith. Unless expressly so provided, no party to this Agreement will be liable for the performance
of any other party’s obligations hereunder. Any party hereto may waive compliance by the other with any of the 
  







 terms, provisions and conditions set forth herein; provided, however that any such waiver shall be in writing
specifically setting forth those provisions waived thereby. No such waiver shall be deemed to constitute or imply waiver of any other term, provision or condition of this Agreement. This Agreement contains the entire agreement between the parties
hereto and is intended to supersede any and all prior agreements between the parties relating to the same subject matter. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which shall constitute a
single agreement. 
  
 [Remainder of page intentionally left
blank.] 







 If the foregoing is in accordance with your understanding of our agreement, kindly sign and return this
Placement Agent Agreement, whereupon it will become a binding agreement between the Company and the Placement Agent in accordance with its terms. 
  

	 Very truly yours,
  
 TENFOLD CORPORATION

		
	By:	 	/s/ Nancy M. Harvey
	 	

	 	 	 Name: Nancy M. Harvey
 Title:   President and Chief Executive Officer



  
 Accepted and agreed to this

 12th day of December, 2003. 
  

	BREAN MURRAY & CO., INC.
		
	By:	 	/s/ A. Brean Murray
	 	

	 	 	 Name: A. Brean Murray
 Title:   Chairman and Chief Executive Officer