OR IN RESPECT OF THIS AGREEMENT, OR ANY
PROVISIONS HEREIN CONTAINED, EXCEPT THAT (I) THE REPRESENTATIONS, WARRANTIES,
COVENANTS, AGREEMENTS AND INDEMNITIES OF THE COMPANY CONTAINED IN THIS AGREEMENT
SHALL ALSO BE FOR THE BENEFIT OF THE CONTROLLING PERSONS, OFFICERS AND DIRECTORS
REFERRED TO IN SECTION 6(A) AND THE INDEMNITIES OF THE PLACEMENT AGENT SHALL
ALSO BE FOR THE BENEFIT OF THE CONTROLLING PERSONS, OFFICERS AND DIRECTORS
REFERRED TO IN SECTION 6(B)
AND (II) THE INVESTORS ARE RELYING ON THE
27
REPRESENTATIONS MADE BY THE COMPANY UNDER, AND ARE INTENDED THIRD PARTY
BENEFICIARIES OF, THIS AGREEMENT..
THE TERM "SUCCESSORS AND ASSIGNS" AS HEREIN
USED SHALL NOT INCLUDE ANY PURCHASER OF THE SECURITIES BY REASON MERELY OF SUCH
PURCHASE.
11.
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
THE CONFLICTS OF LAWS PROVISIONS THEREOF.
12.
NO FIDUCIARY RELATIONSHIP. THE COMPANY HEREBY ACKNOWLEDGES AND
AGREES THAT THE PLACEMENT AGENT IS ACTING SOLELY AS A PLACEMENT AGENT IN
CONNECTION WITH THE OFFERING OF THE COMPANY'S SECURITIES. THE COMPANY FURTHER
ACKNOWLEDGES THAT THE PLACEMENT AGENT IS ACTING PURSUANT TO A CONTRACTUAL
RELATIONSHIP CREATED SOLELY BY THIS AGREEMENT ENTERED INTO ON AN ARM'S LENGTH
BASIS AND IN NO EVENT DO THE PARTIES INTEND THAT THE PLACEMENT AGENT ACT OR BE
RESPONSIBLE AS A FIDUCIARY TO THE COMPANY, ITS MANAGEMENT, STOCKHOLDERS,
CREDITORS OR ANY OTHER PERSON IN CONNECTION WITH ANY ACTIVITY THAT THE PLACEMENT
AGENT MAY UNDERTAKE OR HAS UNDERTAKEN IN FURTHERANCE OF THE OFFERING OF THE
COMPANY'S SECURITIES, EITHER BEFORE OR AFTER THE DATE HEREOF. THE PLACEMENT
AGENT HEREBY EXPRESSLY DISCLAIMS ANY FIDUCIARY OR SIMILAR OBLIGATIONS TO THE
COMPANY, EITHER IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT OR ANY MATTERS LEADING UP TO SUCH TRANSACTIONS, AND THE COMPANY HEREBY
CONFIRMS ITS UNDERSTANDING AND AGREEMENT TO THAT EFFECT. THE PRICE OF THE
SECURITIES SET FORTH IN THIS AGREEMENT WAS ESTABLISHED BY THE COMPANY FOLLOWING
DISCUSSIONS AND ARMS-LENGTH NEGOTIATIONS WITH THE INVESTORS AND THE PLACEMENT
AGENT, AND THE COMPANY IS CAPABLE OF EVALUATING AND UNDERSTANDING, AND
UNDERSTANDS AND ACCEPTS, THE TERMS, RISKS AND CONDITIONS OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT.
THE COMPANY HAS BEEN ADVISED THAT THE PLACEMENT
AGENT AND ITS AFFILIATES ARE ENGAGED IN A BROAD RANGE OF TRANSACTIONS WHICH MAY
INVOLVE INTERESTS THAT DIFFER FROM THOSE OF THE COMPANY AND THAT THE PLACEMENT
AGENT HAS NO OBLIGATION TO DISCLOSE SUCH INTERESTS AND TRANSACTIONS TO THE
COMPANY BY VIRTUE OF ANY FIDUCIARY, ADVISORY OR AGENCY RELATIONSHIP.
THE
COMPANY AND THE PLACEMENT AGENT AGREE THAT THEY ARE EACH RESPONSIBLE FOR MAKING
THEIR OWN INDEPENDENT JUDGMENTS WITH RESPECT TO ANY SUCH TRANSACTIONS. THE
COMPANY HEREBY WAIVES AND RELEASES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
CLAIMS THAT THE COMPANY MAY HAVE AGAINST THE PLACEMENT AGENT WITH RESPECT TO ANY
BREACH OR ALLEGED BREACH OF ANY FIDUCIARY OR SIMILAR DUTY TO THE COMPANY IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY MATTERS
LEADING UP TO