Common use of Agreement to Act as Placement Agent; Delivery and Payment Clause in Contracts

Agreement to Act as Placement Agent; Delivery and Payment. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Placement Agent agrees to act as the Company’s exclusive placement agent to assist the Company, on a best efforts basis, in connection with the proposed issuance and sale by the Company of the Securities to the Investors. The Company expressly acknowledges and agrees that this Agreement does not in any way constitute a commitment by the Placement Agent to purchase any of the Securities and does not ensure successful placement of the Securities or any portion thereof. The Company shall pay to the Placement Agent concurrently with the Closing (as defined below) 4.8% of the gross purchase price of the Securities, which gross purchase price does not include any consideration that may be paid to the Company in the future upon exercise of the Warrants (the “Placement Fee”). Upon satisfaction of the conditions set forth in Section 5 hereof, the closing of the sale and issuance of the Securities (the “Closing”) shall occur at the offices of Wxxxxx Lxxxxxx Xxxxxx & Dxxxx, LLP, 500 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxxxx, or at such other place as may be agreed upon between the Placement Agent and the Company (the “Place of Closing”), at 10:00 a.m., Eastern Standard Time, on January 24, 2007, or at such other time and date as the Placement Agent and the Company may agree, such time and date of payment and delivery being herein called the “Closing Date.” Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Lxxxxxxxxx Xxxxxxx PC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle each purchase of the Securities, with the Shares being settled through the facilities of The Depository Trust Company’s DWAC system and the Warrants being issued in registered physical form. Prior to the Closing Date, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per share as set forth on the cover page of the Prospectus (the “Purchase Amount”). The aggregate of all such Purchase Amounts is herein referred to as the “Escrow Funds.” On the Closing Date, upon satisfaction or waiver of all the conditions to Closing, the Escrow Agent will disburse the Escrow Funds from the Escrow Account to the Company and the Placement Agent as provided in the Escrow Agreement, and the Company shall cause the Securities to be delivered to the Investors, which, with respect to the Shares, shall be made through the facilities of The Depository Trust Company’s DWAC system. The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party disclaims any intention to impose any fiduciary or similar duty on the other. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the offering contemplated hereby that are not limited to the Placement Fee. 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 fiduciary duty. It is understood that the Company proposes to offer the Securities to the Investors upon the terms and conditions set forth in the Registration Statement (hereinafter defined).

Agreement to Act as Placement Agent; Delivery and Payment. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Placement Agent agrees to act as the Company’s exclusive placement agent to assist the Company, on a best reasonable efforts basis, in connection with the proposed issuance and sale by the Company of the Securities to the Investors. The Company expressly acknowledges and agrees that this Agreement does not in any way constitute a commitment by the Placement Agent or any of its affiliates to purchase any of the Securities and does not ensure successful placement of the Securities or any portion thereof. The Company shall pay to the Placement Agent concurrently with the Closing (as defined below) 4.8% of the gross purchase price of the Securities, which gross purchase price does not include any consideration that may be paid to the Company in the future upon exercise of the Warrants (the “Placement Fee”). Upon satisfaction of the conditions set forth in Section 5 hereof, the closing of the sale and issuance of the Securities (the “Closing”) shall occur at the offices of Wxxxxx Lxxxxxx Xxxxxx Xxxxxxx Xxxxxx & DxxxxXxxxx, LLP, 500 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxxxx, or at such other place as may be agreed upon between the Placement Agent and the Company (the “Place of Closing”), at 10:00 a.m., Eastern Standard TimeNew York City time, on January 24September 23, 20072008, or at such other time and date as the Placement Agent and the Company may agree, such time and date of payment and delivery being herein called the “Closing Date.” Concurrently with Prior to the execution and delivery of this AgreementClosing Date, each Investor shall deposit into a single separate interest bearing or money market account maintained by the Company, the Placement Agent and Lxxxxxxxxx Xxxxxxx PC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement (the “Escrow Agreement”), pursuant to which an escrow account Company (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle each purchase of the Securities, with the Shares being settled through the facilities of The Depository Trust Company’s DWAC system and the Warrants being issued in registered physical form. Prior to the Closing Date, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per share Security as set forth on the cover page of the Prospectus (the “Purchase Amount”). The aggregate of all such Purchase Amounts is herein referred to as the “Escrow Funds.” The Company will promptly deposit and will hold the Escrow Funds in the Escrow Account in trust on behalf of the respective Investors, free and clear of any liens, claims, charges or other encumbrances, and the Company agrees that the Escrow Funds shall remain the property of the respective Investors until such time as the Escrow Funds are released to the Company against delivery of the Securities to the Investors on the Closing Date as contemplated by this Agreement. On the Closing Date, upon satisfaction or waiver of all the conditions to Closing, the Escrow Agent will disburse the Escrow Funds from the Escrow Account to the Company and the Placement Agent as provided in the Escrow Agreement, and the Company shall cause the Securities to be delivered to the Investors, which, with respect to the Shares, shall be made through the facilities of The Depository Trust Company’s DWAC systemsystem and, with respect to the Warrants, shall occur by the Company delivering the Warrants to the respective Investors at such addresses as the respective Investors shall have specified, which Warrants shall be issued and delivered in registered physical form, and the Company shall disburse the Placement Fee to the Placement Agent. If for any reason the Closing does not occur on or before September 23, 2008 or this Agreement is terminated, the Company will return to each Investor the Purchase Amount received from such Investor, together with a pro rata portion of any interest or dividends earned on the funds in the Escrow Account for each day while such Purchase Amount received from such Investor was in the Escrow Account, by wire transfer on September 26, 2008 or the date this Agreement is terminated, as the case may be. The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party disclaims any intention to impose any fiduciary or similar duty on the other. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the offering contemplated hereby that are not limited to the Placement FeeFee and the Placement Agent has no obligation to disclose, or account to the Company for, any of such additional financial interests. 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 fiduciary duty. It is understood that the Company proposes to offer the Securities to the Investors upon the terms and conditions set forth in the Registration Statement (as hereinafter defined)) and the Prospectus.

Agreement to Act as Placement Agent; Delivery and Payment. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Placement Agent agrees to act as the Company’s exclusive placement agent to assist the Company, on a best efforts basis, in connection with the proposed issuance and sale by the Company of the Securities to the Investors. The Company expressly acknowledges and agrees that this Agreement does not in any way constitute a commitment by the Placement Agent to purchase any of the Securities and does not ensure successful placement of the Securities or any portion thereof. The Company shall pay to the Placement Agent concurrently with the Closing (as defined below) 4.87.0% of the gross purchase price of the Securities, which gross purchase price does not include excluding any consideration that may be paid to the Company in the future upon exercise of the Warrants (the “Placement Fee”). Upon satisfaction of the conditions set forth in Section 5 hereof, the closing of the sale and issuance of the Securities (the “Closing”) shall occur at the offices of Wxxxxx Lxxxxxx Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, 000 Xxxxxxx Xxxxxx & Dxxxx, LLP, 500 Xxxxx XxxxxxXxxxx, Xxxxx 0000, XxxxxxxxxXxxxxxx Xxxxx, XxxxxxxxxXxxxxxxxxx, or at such other place as may be agreed upon between the Placement Agent and the Company (the “Place of Closing”)Company, at 10:00 a.m., Eastern Standard Time, on January 2419, 2007, unless a written consent or acknowledgement to hold the Closing on January 22, 2007 is obtained from each of the Investors and delivered to the Company prior thereto in which case the Closing shall occur on January 22, 2007, or at such other time and date as the Placement Agent and the Company may agree, such time and date of payment and delivery being herein called the “Closing Date.” Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Lxxxxxxxxx Xxxxxxx PC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle each purchase of the Securities, with the Shares being settled through the facilities of The Depository Trust Company’s DWAC system and the Warrants being issued in registered physical form. Prior to the Closing Date, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per share as set forth on the cover page of the Prospectus (the “Purchase Amount”). The aggregate of all such Purchase Amounts is herein referred to as the “Escrow Funds.” On the Closing Date, upon satisfaction or waiver of all the conditions to Closing, the Escrow Placement Agent will disburse the Escrow Funds from the Escrow Account disburse, or cause to be disbursed, to the Company an amount equal to the product of (x) the number of Securities the Investors have agreed to purchase and (y) the purchase price per Security as set forth on the cover page of the Prospectus, less the Placement Agent as provided in the Escrow Fee and any reimbursable expenses pursuant to Section 10 of this Agreement, and the Company shall cause the Securities to be delivered to either the Placement Agent, for further delivery to the Investors, or directly to Investor in the event such Investor disburses funds directly to the Company, which, with respect to the Shares, shall be made through the facilities of The Depository Trust Company’s DWAC system. The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party disclaims any intention to impose any fiduciary or similar duty on the other. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the offering contemplated hereby that are not limited to the Placement Fee. 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 fiduciary duty. It is understood that the Company proposes to offer the Securities to the Investors upon the terms and conditions set forth in the Registration Statement (hereinafter defined).

Agreement to Act as Placement Agent; Delivery and Payment. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Placement Agent agrees to act as the Company’s exclusive placement agent to assist the Company, on a best efforts basis, in connection with the proposed issuance and sale by the Company of the Securities Units to the Investors. The Company expressly acknowledges and agrees that this Agreement does not in any way constitute a commitment by the Placement Agent to purchase any of the Securities Units and does not ensure successful placement of the Securities Units or any portion thereof. The Company shall pay to the Placement Agent concurrently with the Closing (as defined below) 4.86.0% of the gross purchase price of the Securities, which gross purchase price does not include Units (excluding any consideration that may be paid to the Company in the future upon exercise of the Warrants Warrants) (the “Placement Fee”). Upon satisfaction of the conditions set forth in Section 5 hereof, the closing of the sale and issuance of the Securities Units (the “Closing”) shall occur at the offices of Wxxxxx Lxxxxxx Xxxxxx Fenwick & Dxxxx, West LLP, 500 Xxxxx Xxxxxx801 California Street, Xxxxx 0000Mountain View, Xxxxxxxxx, XxxxxxxxxCalifornia, or at such other place as may be agreed upon between the Placement Agent you and the Company (the “Place of Closing”), at 10:00 7:00 a.m., Eastern Standard TimePacific time, on January 24September 26, 2007, or at such other time and date not later than 5 full business days thereafter as the Placement Agent and the Company may agree, such time and date of payment and delivery being herein called the “Closing Date.” Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Lxxxxxxxxx Xxxxxxx PC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle each purchase of the Securities, with the Shares being settled through the facilities of The Depository Trust Company’s DWAC system and the Warrants being issued in registered physical form. Prior to the Closing Date, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per share as set forth on the cover page of the Prospectus (the “Purchase Amount”). The aggregate of all such Purchase Amounts is herein referred to as the “Escrow Funds.” On the Closing Date, upon satisfaction or waiver of all the conditions to Closing, the Escrow Agent will disburse the Escrow Funds from the Escrow Account to the Company and the Placement Agent as provided in the Escrow Agreement, and the Company shall cause the Securities to be delivered to the Investors, which, with respect to the Shares, shall be made through the facilities of The Depository Trust Company’s DWAC system. The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to investment banking services to the Company, including the offering of the Securities Units contemplated hereby (including in connection with determining the terms of the offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party disclaims any intention to impose any fiduciary or similar duty on the other. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the offering. Notwithstanding anything in this Placement Agent Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the offering contemplated hereby that are not limited to the Placement Fee. 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 fiduciary duty. It is understood that the Company proposes to offer the Securities Units to the Investors upon the terms and conditions set forth in the Registration Statement (hereinafter defined).

Agreement to Act as Placement Agent; Delivery and Payment. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Placement Agent agrees to act as the Company’s 's exclusive placement agent to assist the Company, on a best efforts basis, in connection with the proposed issuance and sale by the Company of the Securities Shares to the InvestorsInvestor. The Company expressly acknowledges and agrees that this Agreement does not in any way constitute a commitment by the Placement Agent to purchase any of the Securities Shares and does not ensure successful placement of the Securities Shares or any portion thereof. The Company shall pay to the Placement Agent concurrently with the Closing (as defined below) 4.81.75% of the gross purchase price of the Securities, which gross purchase price does not include any consideration that may be paid to the Company in the future upon exercise of the Warrants Shares (the “"Placement Fee”"). Upon satisfaction of the conditions set forth in Section 5 hereof, the closing of the sale and issuance of the Securities Shares (the “"Closing”") shall occur at the offices of Wxxxxx Lxxxxxx Xxxxxx Xxxxxxx Xxxxxxxxxxx & DxxxxMugel, LLP, 500 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxxxx, or at such other place as may be agreed upon between the Placement Agent you and the Company (the “"Place of Closing”"), at 10:00 8:00 a.m., Eastern Standard Timecentral time, on January 24November 18, 20072003, or at such other time and date not later than four full business days thereafter as the Placement Agent you and the Company may agree, such time and date of payment and delivery being herein called the “"Closing Date.” Concurrently with the execution and " The delivery of this Agreement, the Company, Shares shall be made to the respective accounts of the Investors against payment by the Investors of the purchase price thereof (the "Requisite Funds") to the Placement Agent and Lxxxxxxxxx Xxxxxxx PC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit on behalf of the Company and the Investors to settle each purchase of the Securities, with the Shares being settled through the facilities ID System of The Depository Trust Company’s DWAC system and the Warrants being issued in registered physical form. Prior to the Closing Date, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per share as set forth on the cover page of the Prospectus Company (the “Purchase Amount”"DTC"). The aggregate Placement Agent shall then immediately transfer the Requisite Funds, less the Placement Fee and any expenses of all such Purchase Amounts the Placement Agent for which the Company is herein referred obligated to as the “Escrow Funds.” On the Closing Datereimburse, upon satisfaction or waiver of all the conditions to Closing, the Escrow Agent will disburse the Escrow Funds from the Escrow Account to the Company and by Federal Funds wire transfer payable in same day funds. The delivery of the Placement Agent as provided in the Escrow Agreement, and the Company shall cause the Securities to be delivered Shares to the Investors, which, with respect to the Shares, Investors shall be made through the facilities of The Depository Trust Company’s DWAC system. The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party disclaims any intention to impose any fiduciary or similar duty on the other. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the offering contemplated hereby that are not limited to the Placement Fee. 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 fiduciary dutyDTC. It is understood that the Company proposes to offer the Securities Shares to the Investors upon the terms and conditions set forth in the Registration Statement Prospectus (hereinafter definedas defined below).

Agreement to Act as Placement Agent; Delivery and Payment. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Placement Agent agrees to act as the Company’s exclusive placement agent to assist the Company, on a best efforts basis, in connection with the proposed issuance and sale by the Company of the Securities to the Investors. The Company expressly acknowledges and agrees that this Agreement does not in any way constitute a commitment by the Placement Agent to purchase any of the Securities and does not ensure successful placement of the Securities or any portion thereof. The Company shall pay to the Placement Agent concurrently with the Closing (as defined below) 4.8% of the gross purchase price of the Securities, which gross purchase price does not include any consideration that may be paid to the Company in the future upon exercise of the Warrants (the “Placement Fee”). Upon satisfaction of the conditions set forth in Section 5 8 hereof, the closing of the sale and issuance of the Securities Shares (the “"Closing”") shall occur at the offices of Wxxxxx Lxxxxxx Xxxxxx Bass, Berry & DxxxxSims PLC, LLP100 Peabody Place, 500 Xxxxx XxxxxxSuite 900, Xxxxx 0000Memphis, XxxxxxxxxTennessee 38100, Xxxxxxxxx, or at such other place as may be agreed upon between the Placement Agent and the Company xr ax xxch othxx xxxxx xx xxx xx xxxxxx xxxx xxxxxxx xxx xxx xxx Xxxpany (the “"Place of Closing”"), at 10:00 a.m., Eastern Standard TimeMemphis time, on January 24February 15, 20072006, or at such other time and date not later than 5 full business days thereafter as the Placement Agent you and the Company may agree, such time and date of payment and delivery being herein called the “"Closing Date.” Concurrently with the execution and " The delivery of the Shares shall be made to the respective accounts of the Investors against payment by the Investors of the purchase price thereof (the "Requisite Funds") to the Placement Agent, as agent, and not as principal, on behalf of the Company by Federal Funds wire transfer payable in same day funds. The Placement Agent shall then immediately transfer the Requisite Funds, less the Placement Fee and any expenses of the Placement Agent for which the Company is obligated to reimburse pursuant to this Agreement, to the CompanyCompany by Federal Funds wire transfer payable in same day funds. The delivery of the Shares to the Investors shall be made, at the option of the Placement Agent and Lxxxxxxxxx Xxxxxxx PCAgent, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle each purchase of the Securities, with the Shares being settled either through the facilities of The Depository Trust Company’s DWAC system Company (the "DTC") or by certificated securities. If the Placement Agent elects to deliver certificated securities, the Company will deliver definitive certificates for the Shares at the office of A.G. Edwards & Sons, Inc., 77 Water Street, New York, New York ("Edwarxx' Xxxxxx"), or such other xxxxx xx xxx xxx xxx Xxxxxxx xxx xutuxxxx xxree upon. The certificates for the Shares so to be delivered will be made available to you for inspection at Edwards' Office (or such other place as you and the Warrants being issued Company may mutualxx xxxxe upon) at least one full business day prior to the Closing Date and will be registered in registered physical form. Prior such names and denominations as you may request at least forty-eight hours prior to the Closing Date, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per share as set forth on the cover page of the Prospectus (the “Purchase Amount”). The aggregate of all such Purchase Amounts is herein referred to as the “Escrow Funds.” On the Closing Date, upon satisfaction or waiver of all the conditions to Closing, the Escrow Agent will disburse the Escrow Funds from the Escrow Account to the Company and the Placement Agent as provided in the Escrow Agreement, and the Company shall cause the Securities to be delivered to the Investors, which, with respect to the Shares, shall be made through the facilities of The Depository Trust Company’s DWAC system. The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, financial advisor or agent, and any duties of the Placement Agent with respect to investment banking services to the Company, including the offering of the Securities Shares contemplated hereby (including in connection with determining the terms of the offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party disclaims any intention to impose any fiduciary or similar duty on the other. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be on behalf of the Company or any other person. It is understood that the offering price, including the volume discount to Investors purchasing at least 200,000 Shares, was arrived at through arms-length negotiations between the Company and the several Investors; and that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the offering. Notwithstanding anything in this Placement Agent Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the offering contemplated hereby that are not limited to the Placement Fee. 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 fiduciary duty. It is understood that the Company proposes to offer the Securities Shares to the Investors upon the terms and conditions set forth in the Registration Statement (hereinafter defined)Statement.