EXHIBIT 10.11
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "Agreement"), dated as of
[____________], 2004, is between Splinex Technology Inc., a Delaware corporation
("Splinex"), and [____________] (the "Indemnitee").
W I T N E S S E T H :
WHEREAS, Indemnitee serves as a director and/or officer of Splinex;
WHEREAS, Splinex and Indemnitee recognize the continued difficulty in
obtaining liability insurance for its corporate directors, officers, employees,
stockholders, controlling persons, agents and fiduciaries, the significant
increases in the cost of such insurance and the general reductions in the
coverage of such insurance;
WHEREAS, Splinex and Indemnitee further recognize the substantial increase
in corporate litigation in general, which subjects directors, officers,
employees, stockholders, controlling persons, stockholders, agents and
fiduciaries to expensive litigation risks at the same time as the availability
and coverage of liability insurance has been severely limited;
WHEREAS, Indemnitee does not regard the current protection available for
Splinex's directors and officers as adequate under the present circumstances and
Indemnitee may not be willing to serve in such capacity without additional
protection;
WHEREAS, Splinex desires to attract and retain the involvement of highly
qualified individuals, such as Indemnitee, and, in part, in order to induce
Indemnitee to be involved with Splinex, and Splinex wishes to provide for the
indemnification and advancing of expenses to Indemnitee to the maximum extent
permitted by law in such Indemnitee's role as a director and/or officer of
Splinex; and
WHEREAS, in view of the considerations set forth above, Splinex desires
that Indemnitee in its role as a director and/or officer be indemnified by
Splinex as set forth herein.
NOW, THEREFORE, in consideration of Indemnitee's service to Splinex, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
Section 1. Indemnification.
(a) Indemnification of Expenses. Splinex shall indemnify and hold harmless
Indemnitee, together with Indemnitee's partners, affiliates, employees, agents
and spouse and each person who controls any of them or who may be liable within
the meaning of Section 15 of the Securities Act of 1933, as amended (the
"Securities Act"), or Section 20 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), to the fullest extent permitted by law if
Indemnitee was or is or becomes a party to or witness or other participant in,
or is threatened to be made a party to or witness or other participant in, any
threatened, pending or completed action, suit, proceeding or alternative dispute
resolution mechanism, or any hearing, inquiry or investigation that Indemnitee
believes might lead to the institution of any such action, suit,
proceeding or alternative dispute resolution mechanism, whether civil,
criminal, administrative, investigative or other (hereinafter a "Claim") by
reason of (or arising in part or in whole out of) any event or occurrence
related to the fact that Indemnitee is or was a director, officer, stockholder,
employee, controlling person, agent or fiduciary of Splinex or any subsidiary of
Splinex, or is or was serving at the request of Splinex as a director, officer,
employee, controlling person, agent or fiduciary of another corporation,
partnership, limited liability company, joint venture, trust or other
enterprise, or by reason of any action or inaction on the part of Indemnitee
while serving in such capacity including, without limitation, any and all
losses, claims, damages, expenses and liabilities, joint or several (including
any investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit, proceeding or any claim
asserted) under the Securities Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, or which relate
directly or indirectly to the registration, purchase, sale or ownership of any
securities of Splinex or their existing or future subsidiaries or to any
fiduciary obligation owed with respect thereto or as a direct or indirect result
of any Claim made by any stockholder of Splinex or their existing or future
subsidiaries against an Indemnitee, or made by a third party against an
Indemnitee based on any misstatement or omission of a material fact by Splinex
or its existing or future subsidiaries in violation of any duty of disclosure
imposed on Splinex or its existing or future subsidiaries by federal or state
securities or common laws (hereinafter an "Indemnification Event") against any
and all expenses (including attorneys' fees and all other costs, expenses and
obligations incurred in connection with investigating, defending a witness in or
participating in (including on appeal), or preparing to defend, be a witness in
or participate in, any such action, suit, proceeding, alternative dispute
resolution mechanism, hearing, inquiry or investigation), judgments, fines,
penalties and amounts paid in settlement (if, and only if, such settlement is
approved in advance by Splinex, which approval shall not be unreasonably
withheld) of such Claim and any federal, state, local or foreign taxes imposed
on Indemnitee as a result of the actual or deemed receipt of any payments under
this Agreement (collectively, hereinafter "Expenses"), including all interest,
assessments and other charges paid or payable in connection with or in respect
of such Expenses. Such payment of Expenses shall be made by Splinex as soon as
practicable but in any event no later than ten days after written demand by
Indemnitee therefor is presented to Splinex.
(b) Reviewing Party. Notwithstanding the foregoing, (i) the obligations of
Splinex under Section 1(a) shall be subject to the condition that the Reviewing
Party (as defined in Section 10 hereof) shall not have determined (in a written
opinion, in any case in which the Independent Legal Counsel (as defined in
Section 10 hereof) is involved) that Indemnitee would not be permitted to be
indemnified under applicable law and (ii) and Indemnitee acknowledges and agrees
that the obligation of Splinex to make an advance payment of Expenses to
Indemnitee pursuant to Section 2(a) (an "Expense Advance") shall be subject to
the condition that, if, when and to the extent that the Reviewing Party
determines that Indemnitee would not be permitted to be so indemnified under
applicable law, Splinex shall be entitled to be reimbursed by Indemnitee (who
hereby agrees to reimburse Splinex) for all such amounts theretofore paid;
provided, however, that if Indemnitee has commenced or thereafter commences
legal proceedings in a court of competent jurisdiction to secure a determination
that Indemnitee should be indemnified under applicable law, any determination
made by the Reviewing Party that Indemnitee would not be permitted to be
indemnified under applicable law shall not be binding and Indemnitee shall not
be required to reimburse Splinex for any Expense Advance until a final judicial
determination is made with respect thereto (as to which all rights of appeal
therefrom have been
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exhausted or lapsed). Indemnitee's obligation to reimburse Splinex for any
Expense Advance shall be unsecured and no interest shall be charged thereon. If
there has not been a Change of Control (as defined in Section 10 hereof), the
Reviewing Party shall be selected by Splinex, and if there has been such a
Change of Control, the Reviewing Party shall be the Independent Legal Counsel
referred to in Section 1(e) hereof. If there has been no determination by the
Reviewing Party or if the Reviewing Party determines that Indemnitee
substantively would not be permitted to be indemnified in whole or in part under
applicable law, Indemnitee shall have the right to commence litigation seeking
an initial determination by the court or challenging any such determination by
the Reviewing Party or any aspect thereof, including the legal or factual bases
therefor, and Splinex hereby consents to service of process and to appear in any
such proceeding. Any determination by the Reviewing Party otherwise shall be
conclusive and binding on Splinex and Indemnitee.
(c) Contribution. If the indemnification provided for in Section 1(a)
above for any reason is held by a court of competent jurisdiction to be
unavailable to an Indemnitee in respect of any losses, claims, damages, expenses
or liabilities referred to therein, then Splinex, in lieu of indemnifying
Indemnitee thereunder, shall contribute to the amount paid or payable by
Indemnitee as a result of such losses, claims, damages, expenses or liabilities
(i) in such proportion as is appropriate to reflect the relative benefits
received by Splinex on the one hand and Indemnitee on the other hand or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of Splinex on the
one hand and Indemnitee on the other hand in connection with the action or
inaction which resulted in such losses, claims, damages, expenses or
liabilities, as well as any other relevant equitable considerations. In
connection with the registration of Splinex's securities, the relative benefits
received by Splinex and Indemnitee shall be deemed to be in the same respective
proportions that the net proceeds from the offering (before deducting expenses)
received by Splinex and Indemnitee, in each case as set forth in the table on
the cover page of the applicable prospectus, bear to the aggregate public
offering price of the securities so offered. The relative fault of Splinex and
Indemnitee shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by Splinex or
Indemnitee and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
Splinex and Indemnitee agree that it would not be just and equitable if
contribution pursuant to this Section 1(c) were determined by pro rata or per
capita allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. In connection with the registration of Splinex's securities, in no
event shall an Indemnitee be required to contribute any amount under this
Section 1(c) in excess of the lesser of (i) that proportion of the total of such
losses, claims, damages or liabilities indemnified against equal to the
proportion of the total securities sold under such registration statement which
is being sold by Indemnitee or (ii) the proceeds received by Indemnitee from the
Indemnitee's sale of securities under such registration statement. No person
found guilty of fraudulent misrepresentation (within the meaning of Section
10(f) of the Securities Act) shall be entitled to contribution from any person
who was not found guilty of such fraudulent misrepresentation.
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(d) Survival Regardless of Investigation. The indemnification and
contribution provided for herein will remain in full force and effect regardless
of any investigation made by or on behalf of Indemnitee or any officer,
director, employee, agent or controlling person of Indemnitee.
(e) Change of Control. Splinex agrees that if there is a Change of Control
of Splinex then, with respect to all matters thereafter arising concerning the
rights of Indemnitee to payments of Expenses under this Agreement or any other
agreement or under Splinex's constituent documents as now or hereafter in
effect, the Independent Legal Counsel (as defined in Section 10 hereof) shall be
selected by Indemnitee and approved by Splinex (which approval shall not be
unreasonably withheld). Such counsel, among other things, shall render its
written opinion to Splinex and Indemnitee as to whether and to what extent
Indemnitee would be permitted to be indemnified under applicable law. Splinex
agrees to abide by such opinion and to pay the reasonable fees of the
Independent Legal Counsel referred to above and to fully indemnify such counsel
against any and all reasonable expenses (including attorneys' fees), claims,
liabilities and damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
(f) Mandatory Payment of Expenses. To the extent that Indemnitee has been
successful on the merits or otherwise, including, without limitation, the
dismissal of an action without prejudice, in the defense of any action, suit,
proceeding, inquiry or investigation referred to in Section 1(a) hereof or in
the defense of any claim, issue or matter therein, Indemnitee shall be
indemnified against all Expenses incurred by Indemnitee in connection herewith.
Section 2. Expenses; Indemnification Procedure.
(a) Advancement of Expenses. Splinex shall advance all Expenses incurred
by Indemnitee. The advances to be made hereunder shall be paid by Splinex to
Indemnitee as soon as practicable but in any event no later than ten business
days after written demand by Indemnitee therefor to Splinex.
(b) Notice/Cooperation by Indemnitee. Indemnitee shall give Splinex notice
as soon as practicable of any Claim made against Indemnitee for which
indemnification will or could be sought under this Agreement. Notice to Splinex
shall be directed to the President of Splinex at the address stated in Section
11 hereof.
(c) No Presumptions; Burden of Proof. For purposes of this Agreement, the
termination of any Claim by judgment, order, settlement (whether with or without
court approval) or conviction, or upon a plea of nolo contendere, or its
equivalent, shall not create a presumption that Indemnitee did not meet any
particular standard of conduct or have any particular belief or that a court has
determined that indemnification is not permitted by applicable law. In addition,
neither the failure of the Reviewing Party to have made a determination as to
whether Indemnitee has met any particular standard of conduct or had any
particular belief, nor an actual determination by the Reviewing Party that
Indemnitee has not met such standard of conduct or did not have such belief,
prior to the commencement of legal proceedings by Indemnitee to secure a
judicial determination that Indemnitee should be indemnified under applicable
law, shall be a defense to Indemnitee's claim or create a presumption that
Indemnitee
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has not met any particular standard of conduct or did not have any particular
belief. In connection with any determination by the Reviewing Party or otherwise
as to whether Indemnitee is entitled to be indemnified hereunder, the burden of
proof shall be on Splinex to establish that Indemnitee is not so entitled.
(d) Notice to Insurers. If, at the time of the receipt by Splinex of a
notice of a Claim pursuant to Section 2(b) hereof, Splinex has liability
insurance in effect which may cover such Claim, Splinex shall give prompt notice
of the commencement of such Claim to the insurers in accordance with the
procedures set forth in such policies. Splinex shall thereafter take all
necessary or desirable action to cause such insurers to pay, on behalf of
Indemnitee, all amounts payable as a result of such action, suit, proceeding,
inquiry or investigation in accordance with the terms of such policies.
(e) Selection of Counsel. In the event Splinex shall be obligated
hereunder to pay the Expenses of any Claim, Splinex shall be entitled to assume
the defense of such Claim, with counsel approved by Indemnitee (which approval
shall not be unreasonably withheld) upon the delivery to Indemnitee of written
notice of its election to do so. After delivery of such notice, approval of such
counsel by Indemnitee and the retention of such counsel by Splinex, Splinex will
not be liable to Indemnitee under this Agreement for any fees of counsel
subsequently incurred by Indemnitee with respect to the same Claim; provided
that (i) Indemnitee shall have the right to employ Indemnitee's counsel in any
such Claim at Indemnitee's expense, (ii) Indemnitee shall have the right to
employ its own counsel in connection with any such proceeding, at the expense of
Splinex, if such counsel serves in a review, observer, advice and counseling
capacity and does not otherwise materially control or participate in the defense
of such proceeding and (iii) if (A) the employment of counsel by Indemnitee has
been previously authorized by Splinex, (B) Indemnitee shall have reasonably
concluded that there is a conflict of interest between Splinex and Indemnitee in
the conduct of any such defense or (C) Splinex shall not continue to retain such
counsel to defend such Claim, then the fees and expenses of Indemnitee's counsel
shall be at the expense of Splinex.
Section 3. Additional Indemnification Rights; Nonexclusivity. Splinex
hereby agrees to indemnify Indemnitee to the fullest extent permitted by law,
even if such indemnification is not specifically authorized by the other
provisions of this Agreement, Splinex's constituent documents or any other
agreement, Splinex's certificate of incorporation, bylaws or by statute. In the
event of any change after the date of this Agreement in any applicable law,
statute or rule which expands the right of a Delaware corporation to indemnify a
director or an officer, stockholder, employee, controlling person, agent or
fiduciary, it is the intent of the parties hereto that Indemnitee shall enjoy by
this Agreement the greater benefits afforded by such change. In the event of any
change in any applicable law, statute or rule which narrows the right of a
Delaware corporation to indemnify a director or an officer, employee, agent or
fiduciary, such change, to the extent not otherwise required by such law,
statute or rule to be applied to this Agreement, shall have no effect on this
Agreement or the parties' rights and obligations hereunder except as set forth
in Section 8 hereof.
The indemnification provided by this Agreement shall be in addition to any
rights to which Indemnitee may be entitled under Splinex's constituent
documents, Splinex's certificate of incorporation, bylaws, any agreement, any
vote of stockholders or disinterested directors, the
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laws of the State of Delaware, or otherwise. The indemnification provided under
this Agreement shall continue as to Indemnitee for any action Indemnitee took or
did not take while serving in an indemnified capacity even though Indemnitee may
have ceased to serve in such capacity and such indemnification shall inure to
the benefit of Indemnitee from and after Indemnitee's first day of service as a
director and/or officer with Splinex or affiliation with a director and/or
officer from and after the date such Indemnitee commences services as a director
and/or officer with Splinex.
Section 4. No Duplication of Payments. Splinex shall not be liable under
this Agreement to make any payment in connection with any Claim made against
Indemnitee to the extent Indemnitee has otherwise actually received payment
(under any insurance policy, Splinex constituent documents, Splinex's
certificate of incorporation, bylaws or otherwise) of the amounts otherwise
indemnifiable hereunder.
Section 5. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by Splinex for any portion of
Expenses incurred in connection with any Claim, but not, however, for all of the
total amount thereof, Splinex shall nevertheless indemnify Indemnitee for the
portion of such Expenses to which Indemnitee is entitled.
Section 6. Mutual Acknowledgement. Splinex and Indemnitee acknowledge that
in certain instances, federal law or applicable public policy may prohibit
Splinex from indemnifying any of Splinex's directors, officers, employees,
controlling persons, agents or fiduciaries under this Agreement or otherwise.
Section 7. Liability Insurance. To the extent Splinex maintains liability
insurance applicable to directors, officers, employees, control persons, agents
or fiduciaries, Indemnitee shall be covered by such policies in such a manner as
to provide Indemnitee the same rights and benefits as are accorded to the most
favorably insured of Splinex's directors, if such Indemnitee is a director, or
of Splinex's officers, if such Indemnitee is not a director of Splinex but is an
officer.
Section 8. Exceptions. Splinex shall not be obligated to provide
indemnification to Indemnitee pursuant to the terms of this Agreement under any
of the following circumstances:
(a) Claims Under Section 16(b). To indemnify Indemnitee for expenses and
the payment of profits arising from the purchase and sale by Indemnitee of
securities in violation of Section 16(b) of the Exchange Act or any similar
successor statute.
(b) Claims Excluded Under Section 145 of the Delaware General Corporation
Law. To indemnify Indemnitee if (i) Indemnitee did not act in good faith or in a
manner reasonably believed by such Indemnitee to be in or not opposed to the
best interests of Splinex, (ii) with respect to any criminal action or
proceeding, Indemnitee had reasonable cause to believe Indemnitee's conduct was
unlawful or (iii) Indemnitee shall have been adjudged to be liable to Splinex
unless and only to the extent the court in which such action was brought shall
permit indemnification as provided in Section 145(b) of the Delaware General
Corporation Law.
(c) Unlawful Indemnification. To indemnify an Indemnitee if a final
decision by a court having jurisdiction in the matter shall determine that such
indemnification is not lawful.
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(d) Fraud. To indemnify an Indemnitee if a final decision by a court
having jurisdiction in the matter shall determine that Indemnitee has committed
fraud on Splinex.
(e) Insurance. To indemnify Indemnitee for which payment is actually and
fully made to Indemnitee under a valid and collectible insurance policy.
Section 9. Period of Limitations. No legal action shall be brought and no
cause of action shall be asserted by or in the right of Splinex against
Indemnitee, any Indemnitee's estate, spouse, heirs, executors or personal or
legal representatives after the expiration of five years from the date of
accrual of such cause of action, and any claim or cause of action of Splinex
shall be extinguished and deemed released unless asserted by the timely filing
of a legal action within such five-year period; provided, however, that if any
shorter period of limitations is otherwise applicable to any such cause of
action, such shorter period shall govern.
Section 10. Construction of Certain Phrases. For purposes of this
Agreement,
"Change of Control" shall be deemed to have occurred in the event of a
sale of securities, merger, consolidation, combination, reorganization or other
transaction results in less than 50% of the voting power of the surviving or
resulting entity being owned by the security holders of Splinex immediately
prior to such transaction.
"Independent Legal Counsel" means an attorney or firm of attorneys,
selected in accordance with the provisions of Section 1(e) hereof, who shall not
have otherwise performed services for Splinex or Indemnitee within the last
three years (other than with respect to matters concerning the right of
Indemnitee under this Agreement, or of other indemnitees under similar indemnity
agreements).
"Reviewing Party" means any appropriate person or body consisting of an
officer or director of Splinex or any other person or body appointed by the
board of directors of Splinex who is not a party to the particular Claim for
which Indemnitee is seeking indemnification, or Independent Legal Counsel.
Section 11. Miscellaneous Provisions.
(a) Amendment and Modification. Subject to applicable law, this Agreement
may be amended, modified and supplemented only by written agreement of the
parties hereto.
(b) Waiver of Compliance; Consents. Any failure of any party hereto to
comply with any obligation, covenant, agreement or condition herein may be
waived in writing by the other party hereto, but such waiver or failure to
insist upon strict compliance with such obligation, covenant, agreement or
condition shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure. Whenever this Agreement requires or permits consent
by or on behalf of any party hereto, such consent shall be given in writing.
(c) Rules of Construction. Words in the singular shall include the plural
and vice versa, and words importing the masculine shall include the feminine and
neuter and vice versa.
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(d) Notices. All notices, requests, demands and other communications
required or permitted by one party to another hereunder shall be in writing and
shall be deemed to have been duly given upon (i) a transmitter's confirmation of
a receipt of a facsimile transmission or (ii) confirmed delivery of a standard
overnight courier or when delivered by hand, to the parties at the following
addresses:
If to Splinex, to:
Splinex Technology Inc.
000 X. Xxxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
with a copy to:
Xxxxxx Xxxxx
General Counsel
Splinex Technology Inc.
000 X. Xxxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
If to Indemnitee, to:
[____________]
[____________]
[____________]
or to such other person or address as the party shall furnish by notice to the
other party in writing.
(e) Assignment. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, but neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any party hereto
without the prior written consent of the other party.
(f) Governing Law. The Agreement shall be governed by the internal laws of
the state of Delaware as to all matters, including but not limited to matters of
validity, construction, effect and performance.
(g) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(h) Headings. The article and section headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
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(i) Entire Agreement. This Agreement embodies the entire agreement and
understanding of the parties hereto in respect of the transactions contemplated
by this Agreement and supersedes all prior agreements, representations,
warranties, promises, covenants, arrangements, communications and
understandings, oral or written, express or implied, between the parties with
respect to such transactions. There are no agreements, representations,
warranties, promises, covenants, arrangements or understandings between the
parties with respect to such transactions, other than those expressly set forth
or referred to herein.
(j) Consent to Jurisdiction; Service of Process. The parties hereto hereby
irrevocably submit to the jurisdiction of the state courts located in Broward
County, Florida or the federal courts of the Southern District of Florida in
connection with any suit, action or other proceeding arising out of or relating
to this Agreement and the transactions contemplated hereby, and hereby agree not
to assert, by way of motion, as a defense, or otherwise in any such suit, action
or proceeding that the suit, action or proceeding is brought in an inconvenient
forum, that the venue of the suit, action or proceeding is improper or that this
Agreement or the subject matter hereof may not be enforced by such courts.
(k) Binding Effect. This Agreement shall not be construed so as to confer
any right or benefit upon any Person other than the signatories to this
Agreement and each of their respective successors and permitted assigns.
(l) Delays or Omissions. No delay or omission to exercise any right, power
or remedy accruing to any party hereto, upon any breach or default of any other
party under this Agreement, shall impair any such right, power or remedy of such
party nor shall it be construed to be a waiver of any such breach or default, or
an acquiescence therein, or of or in any similar breach or default thereafter
occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring. Any
waiver, permit, consent or approval of any kind or character on the part of any
party hereto of any breach or default under this Agreement, or any waiver on the
part of any party of any provisions or conditions of this Agreement must be made
in writing and shall be effective only to the extent specifically set forth in
such writing. All remedies, either under this Agreement or by law or otherwise
afforded to any party, shall be cumulative and not alternative.
(m) Severability. Unless otherwise provided herein, if any provision of
this Agreement shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 12. Waiver of Jury Trial. THE PARTIES HERETO KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT OR ANY EXHIBIT HERETO, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING OR STATEMENTS (WHETHER VERBAL OR WRITTEN) RELATING TO THE
FOREGOING. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES HERETO TO
ENTER INTO THIS AGREEMENT.
(Signature page to follow)
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