BUSINESS BY BSMB IN CONNECTION WITH BSMB'S OBLIGATIONS
HEREUNDER, INCLUDING FEES AND EXPENSES PAID TO CONSULTANTS, SUBCONTRACTORS,
ADVISORS AND OTHER THIRD PARTIES IN CONNECTION WITH SUCH OBLIGATIONS.
4.
TRANSACTION FEES. THE COMPANY HEREBY AGREES TO PAY TO BSMB UPON
THE DATE HEREOF A FEE (THE "CLOSING FEE") FOR SERVICES RENDERED IN CONNECTION
WITH SECURING, STRUCTURING AND NEGOTIATING THE ACQUISITION, EQUITY AND DEBT
FINANCING FOR THE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT AND CERTAIN
OTHER MANAGEMENT SERVICES IN AN AMOUNT EQUAL TO $10,000,000. THE CLOSING FEE
SHALL BE PAYABLE BY WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS TO BSMB OR ONE
OR MORE OF ITS DESIGNEES. IN ADDITION, THE COMPANY SHALL EITHER PAY DIRECTLY OR
REIMBURSE BSMB FOR ALL OF THE REASONABLE OUT-OF-POCKET FEES AND EXPENSES,
INCLUDING LEGAL AND ACCOUNTING FEES, INCURRED BY BSMB OR ANY OF ITS AFFILIATES
(OTHER THAN THE COMPANY OR ANY OF ITS SUBSIDIARIES) IN CONNECTION WITH THE
NEGOTIATION AND EXECUTION OF THE MERGER AGREEMENT AND THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT.
5.
PERSONNEL. BSMB SHALL PROVIDE AND DEVOTE TO THE PERFORMANCE OF
THIS AGREEMENT SUCH PARTNERS, EMPLOYEES AND AGENTS OF BSMB AS BSMB SHALL DEEM
APPROPRIATE TO THE FURNISHING OF THE SERVICES REQUIRED.
6.
LIABILITY. NONE OF BSMB, ANY OF ITS AFFILIATES NOR THEIR
RESPECTIVE PARTNERS, MEMBERS, EMPLOYEES OR AGENTS (COLLECTIVELY, THE "BSMB
GROUP") SHALL BE LIABLE TO THE COMPANY OR ITS SUBSIDIARIES OR AFFILIATES FOR ANY
LOSS, LIABILITY, DAMAGE OR EXPENSE (COLLECTIVELY, A "LOSS") ARISING OUT OF OR IN
CONNECTION WITH THE PERFORMANCE OF SERVICES CONTEMPLATED BY THIS AGREEMENT,
UNLESS AND THEN ONLY TO THE EXTENT THAT SUCH LOSS IS DETERMINED BY A COURT IN A
FINAL ORDER FROM WHICH NO APPEAL CAN BE TAKEN, TO HAVE RESULTED SOLELY FROM THE
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT ON THE PART OF SUCH MEMBER OF THE BSMB
GROUP. BSMB MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, IN
RESPECT OF THE SERVICES TO BE PROVIDED BY THE BSMB GROUP. EXCEPT AS BSMB MAY
OTHERWISE AGREE IN WRITING ON OR AFTER THE DATE HEREOF:
(A) EACH MEMBER OF THE
BSMB GROUP SHALL HAVE THE RIGHT TO, AND SHALL HAVE NO DUTY (CONTRACTUAL OR
OTHERWISE) NOT TO, DIRECTLY OR INDIRECTLY:
(I) ENGAGE IN THE SAME OR SIMILAR
BUSINESS ACTIVITIES OR LINES OF BUSINESS AS THE COMPANY OR ITS SUBSIDIARIES AND
(II) DO BUSINESS WITH ANY CLIENT, CUSTOMER, SUPPLIER, LENDER OR INVESTOR OF, TO
OR IN THE COMPANY OR ITS SUBSIDIARIES; (B) NO MEMBER OF THE BSMB GROUP SHALL BE
LIABLE TO THE COMPANY OR ITS SUBSIDIARIES OR AFFILIATES FOR BREACH OF ANY DUTY
(CONTRACTUAL OR OTHERWISE) BY REASON OF ANY SUCH ACTIVITIES OR OF SUCH PERSON'S
PARTICIPATION THEREIN; AND (C) IN THE EVENT THAT ANY MEMBER OF THE BSMB GROUP
ACQUIRES KNOWLEDGE OF A POTENTIAL TRANSACTION OR MATTER THAT MAY BE A CORPORATE
OPPORTUNITY FOR BOTH (A) THE COMPANY OR ANY OF ITS SUBSIDIARIES, ON THE ONE
HAND, AND (B) BSMB, ON THE OTHER HAND, OR ANY OTHER PERSON, NO MEMBER OF THE
BSMB GROUP SHALL