Roth Capital Partners, LLC 11100 Santa Monica Blvd, Ste. 550 Los Angeles, CA 90025
Exhibit
10.19
▇▇▇▇
Capital Partners, LLC
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
January
9, 2007
STRICTLY
CONFIDENTIAL
▇▇.
▇▇▇▇
▇▇▇▇▇▇
Chief
Executive Officer
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Dear
▇▇.
▇▇▇▇▇▇:
This
letter (the “Agreement”)
amends, restates and supersedes in its entirety a previous letter agreement
between Modigene Inc. (the “Company”)
and
▇▇▇▇ Capital Partners, LLC and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Ventures, Inc. (“▇▇▇▇ and ▇▇▇▇▇▇▇
▇▇▇▇▇” or “Placement Agents”) dated June 28, 2006 (the “June Agreement”).
Pursuant to this Agreement, ▇▇▇▇ shall serve as non-exclusive placement agent
and ▇▇▇▇▇▇▇ shall serve as the co-placement agent for the Company, on a “best
efforts” basis, in connection with the proposed offer and
private placement (the “Offering”)
by the
Company of securities of the Company (the “Securities”).
It is
currently contemplated that the Offering will raise up to $15 million and that
the closing of the Offering will occur simultaneously with a reverse merger
with
a publicly-traded company to be determined by the Company (a “Merger”).
A. Fees
and Expenses.
1.
Advisory
Fee.
Concurrently with the closing of the Offering, the Company will pay the
Placement Agents in the aggregate in cash a fee equal to six percent (6%) of
the
gross proceeds received from the sale of securities in
the
Offering and
a
financial advisory fee equal to two and one-half percent (2.5%) of the gross
proceeds received from the sale of securities
in the
Offering
to
investors first introduced to the Company by Placement
Agents prior to the date hereof (the “Introduced Investors”).
Upon
the
closing of the Offering, and as a condition thereto, the Company will issue
to
▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ in the aggregate warrants to purchase the securities
sold
in the Offering equal to five (5%) of the total shares issued in the Offering
to
Introduced Investors. The warrants will have an initial exercise price equal
to
the price of the Securities sold in the Offering and will have a term of five
(5) years from the date of issuance. These Securities underlying such warrants
will be entitled to the same registration rights as those granted to the
investors in connection with the Offering. To that end, the Company agrees
that
▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ will be afforded the indemnification protections granted
to the investors as part of the agreement governing the registration of the
investor securities sold in the Offering, as a third party beneficiary to such
provisions.
▇▇▇▇
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ agree to divide the cash and non-cash compensation described
in
Section A(1) as follows: ninety percent (90%) to ▇▇▇▇ and ten percent (10%)
to
SpencerTrask on any Introduced Investor introduced by ▇▇▇▇, and ninety percent
(90%) to SpencerTrask and ten percent (10%) to ▇▇▇▇ on any Introduced Investor
introduced by ▇▇▇▇▇▇▇ ▇▇▇▇▇. Attached as Exhibit A is a list of ▇▇▇▇’▇
Introduced Investors.
2.
Expenses.
In
addition to any fees payable to ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ hereunder and regardless
of whether an Offering is consummated, the Company hereby agrees to reimburse
▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ upon request for their respective out-of-pocket expenses;
provided that the expenses (excluding ▇▇▇▇’▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇’▇ legal counsel)
do not exceed $30,000 in the aggregate without prior written approval from
the
Company. To cover expenses, the Company will pay to ▇▇▇▇, on behalf of both
▇▇▇▇
and ▇▇▇▇▇▇▇ ▇▇▇▇▇, $15,000 upon the signing of this Agreement and $15,000 upon
the finalization of the Memorandum (as defined below). The Placement Agents
acknowledge that such $30,000 has already been paid by the Company. Any unused
amount will be netted against the fee payable in A(1) and in the event this
Agreement is terminated and no Offering is closed, any unused portion of such
payment shall be promptly refunded to the Company.
In
addition to any fees payable to ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ hereunder, the Company
hereby agrees to reimburse ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ for its legal counsel’s legal
fees and out-of-pocket expenses incurred since June 2006 either in connection
with the June Agreement or this Agreement on the following schedule: (i) Upon
the signing of the Agreement, the Company will pay $10,000 directly to ▇▇▇▇’▇
and ▇▇▇▇▇▇▇ ▇▇▇▇▇’▇ legal counsel. The Placement Agents acknowledge that such
$10,000 has already been paid by the Company. (ii) Upon the consummation of
the
Offering, the Company will reimburse ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ for its legal
counsel’s legal fees and reasonable out-of-pocket expenses. As of the date
hereof, such legal fees and related expenses are approximately $30,000 in the
aggregate. (iii) If the transaction is not consummated, the Company will pay
a
one-time Break-up fee (the “Break-up” fee) of $40,000 directly to ▇▇▇▇’▇ and
▇▇▇▇▇▇▇ ▇▇▇▇▇’▇ legal counsel. Any unused amount in (i) will be netted against
the reimbursement payable in (ii). No additional out-of-pocket or legal fees
shall be incurred after December 28, 2006 without prior written consent by
the
Company.
C. Term
and Termination of Engagement.
Except
as set forth below, the term (the “Term”) of ▇▇▇▇’▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇’▇
engagement will begin on the date hereof and end on the earlier of the
completion
of the
Offering or 15
days
after receipt by ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ of written notice of termination from
the Company; provided that (i) no such notice may be given prior to December
1,
2006 and (ii) no such notice may be given by the Company for a period of 360
days from the date of this Agreement if
the
Offering is completed by December 1, 2006.
For
the
avoidance of doubt, the Company shall be permitted to give a termination notice
any time after December 1, 2006 in the event the Offering is not completed
by
December 1, 2006. Notwithstanding
any such expiration or termination, Paragraphs D,
E and
G
through
K shall survive and remain in full force and effect and be binding on the
parties hereto.
D. Fee
Tail.
In the
event that
the
Company makes any sales of Securities to Introduced Investors during the period
between December 1, 2006 and November 30, 2007 (the “Tail Period”), the Company
shall pay to ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ in the aggregate a cash placement fee equal
to eight and one-half percent (8.5%) of the aggregate cash purchase price of
such Securities;
provided that such sale of securities is not an Exempt Sale. In
the
case of a merger, acquisition, joint venture or other strategic transaction
during
the Tail Period,
no fee
shall be paid to Placement Agents with respect to the issuance or sale of
Securities in connection with such merger, acquisition, joint venture or other
strategic transaction. For purposes of this Paragraph D, “Exempt Sale” shall
mean any of the following: (i) the issuance by the Company of non-convertible
promissory notes, (ii) the issuance of securities by the Company in connection
with the provision of services to the Company or its affiliates, (iii) the
issuance of securities by the Company in connection with any license or
manufacturing agreement, and (iv) the issuance of any securities by the Company
in connection with any government or foundation grants, loans or other
financings.
2
▇▇▇▇
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ agree to divide the cash and non-cash compensation described
in
Section D as follows: ninety percent (90%) to ▇▇▇▇ and ten percent (10%) to
SpencerTrask on any Introduced Investor introduced by ▇▇▇▇, and ninety percent
(90%) to SpencerTrask and ten percent (10%) to ▇▇▇▇ on any Introduced Investor
introduced by ▇▇▇▇▇▇▇ ▇▇▇▇▇.
F. Use
of
Information.
The
Company authorizes ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ to transmit to the prospective
purchasers of the securities a private placement memorandum prepared by the
Company with such exhibits and supplements as may from time to time be required
or appropriate (the “Memorandum”). The Company represents and warrants that the
Memorandum (i) will be prepared by the management of the Company and reviewed
and approved by its Board of Directors; and (ii) will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein or previously made,
in light of the circumstances under which they were made, not
misleading;
provided, however, the foregoing does not apply to any statements or omissions
made in reliance on and in conformity with written information furnished to
the
Company by any other person or entity.
The
Company will advise ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ immediately of the occurrence of
any
event or any other change known to the Company which results in the Memorandum
containing an untrue statement of a material fact or omitting to state a
material fact required to be stated therein or necessary to make the statements
therein or previously made, in light of the circumstances under which they
were
made, not misleading.
G. Indemnification,
Contribution, and Confidentiality.
The
Company agrees to indemnify ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ and its controlling persons,
representatives and agents in accordance with the indemnification provisions
set
forth in Appendix I, and the parties agree to the confidentiality provisions
of
Appendix II, all of which are incorporated herein by this reference. These
provisions will apply regardless of whether the proposed Offering is
completed.
H. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
state of California applicable to contracts executed and to be wholly performed
therein without giving effect to its conflicts of laws principles or rules.
The
Company and ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ agree that any dispute concerning this
Agreement this Agreement shall be resolved through binding arbitration before
the NASD pursuant to its arbitration rules. Arbitration will be venued in Los
Angeles County, CA.
I. Announcement
of Offering.
If the
Offering is completed, ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ may, at their expense, and subject
to written consent by the Company, place an announcement in such newspapers
and
periodicals as ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ may desire.
J. Advice
to the Board.
The
Company acknowledges that any advice given by ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ to the
Company is solely for benefit and use of the Board of Directors of the Company
and may not be used, reproduced, disseminated, quoted or referred to, without
▇▇▇▇’▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇’▇ prior written consent.
3
K. Entire
Agreement.
This
Agreement constitutes the entire Agreement between the parties and supersedes
and cancels any and all prior or contemporaneous arrangements, understandings
and agreements, written or oral, between them relating to the subject matter
hereof.
.
*The
Next Page Is the Signature Page.*
4
In
acknowledgment that the foregoing correctly sets forth the understanding reached
by ▇▇▇▇ and the Company, please sign in the space provided below, whereupon
this
letter shall constitute a binding Agreement as of the date indicated
above.
| Very
truly yours,
▇▇▇▇
CAPITAL PARTNERS, LLC
By:
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇.
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Managing
Director
▇▇▇▇▇▇▇
▇▇▇▇▇ VENTURES, INC.
By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
President
|
Accepted
and agreed to
as
of the
date hereof:
By:
/s/
▇▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇.
▇▇▇▇ ▇▇▇▇▇▇
Chief
Executive Officer
5
APPENDIX
I
INDEMNIFICATION
AND CONTRIBUTION
The
Company agrees to indemnify and hold harmless ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ and its
affiliates (as defined in Rule 405 under the Securities Act of 1933, as amended)
and their respective directors, officers, employees, agents and controlling
persons (▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ and each such person being an “Indemnified
Party”) from and against all losses, claims, damages and liabilities (or
actions, including shareholder actions, in respect thereof), joint or several,
to which such Indemnified Party may become subject under any applicable federal
or state law, or otherwise, which are related to or result from the performance
by ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ of the services contemplated by or the engagement
of
▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ pursuant to, this Agreement and will promptly reimburse
any Indemnified Party for all reasonable expenses (including reasonable counsel
fees and expenses) as they are incurred in connection with the investigation
of,
preparation for or defense arising from any threatened or pending claim, whether
or not such Indemnified Party is a party and whether or not such claim, action
or proceeding is initiated or brought by the Company. The Company will not
be
liable to any Indemnified Party under the foregoing indemnification and
reimbursement provisions, (i) for any settlement by an Indemnified Party
effected without its prior written consent (not to be unreasonably withheld);
or
(ii) to the extent that any loss, claim, damage or liability is found in a
final, non-appealable judgment by a court of competent jurisdiction to have
resulted primarily from ▇▇▇▇’▇ or ▇▇▇▇▇▇▇ ▇▇▇▇▇’▇ willful misconduct or gross
negligence. The Company also agrees that no Indemnified Party shall have any
liability (whether direct or indirect, in contract or tort or otherwise) to
the
Company or its security holders or creditors related to or arising out of the
engagement of ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ pursuant to, or the performance by ▇▇▇▇
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ of the services contemplated by, this Agreement except to the
extent that any loss, claim, damage or liability is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
primarily from ▇▇▇▇’▇ or ▇▇▇▇▇▇▇ ▇▇▇▇▇’▇ willful misconduct or gross
negligence.
Promptly
after receipt by an Indemnified Party of notice of any intention or threat
to
commence an action, suit or proceeding or notice of the commencement of any
action, suit or proceeding, such Indemnified Party will, if a claim in respect
thereof is to be made against the Company pursuant hereto, promptly notify
the
Company in writing of the same. In case any such action is brought against
any
Indemnified Party and such Indemnified Party notifies the Company of the
commencement thereof, the Company may elect to assume the defense thereof,
with
counsel reasonably satisfactory to such Indemnified Party, and an Indemnified
Party may employ counsel to participate in the defense of any such action
provided, that the employment of such counsel shall be at the Indemnified
Party’s own expense, unless (i) the employment of such counsel has been
authorized in writing by the Company, (ii) the Indemnified Party has reasonably
concluded (based upon advice of counsel to the Indemnified Party) that there
may
be legal defenses available to it or other Indemnified Parties that are
different from or in addition to those available to the Company, or that a
conflict or potential conflict exists (based upon advice of counsel to the
Indemnified Party) between the Indemnified Party and the Company that makes
it
impossible or inadvisable for counsel to the Indemnifying Party to conduct
the
defense of both the Company and the Indemnified Party (in which case the Company
will not have the right to direct the defense of such action on behalf of the
Indemnified Party), or (iii) the Company has not in fact employed counsel
reasonably satisfactory to the Indemnified Party to assume the defense of such
action within a reasonable time after receiving notice of the action, suit
or
proceeding, in each of which cases the reasonable fees, disbursements and other
charges of such counsel will be at the expense of the Company; provided,
further, that in no event shall the Company be required to pay fees and expenses
for more than one firm of attorneys representing Indemnified Parties unless
the
defense of one Indemnified Party is unique or separate from that of another
Indemnified Party subject to the same claim or action. Any failure or delay
by
an Indemnified Party to give the notice referred to in this paragraph shall
not
affect such Indemnified Party’s right to be indemnified hereunder, except to the
extent that such failure or delay causes actual harm to the Company, or
prejudices its ability to defend such action, suit or proceeding on behalf
of
such Indemnified Party.
If
the
indemnification provided for in this Agreement is for any reason held
unenforceable by an Indemnified Party, the Company agrees to contribute to
the
losses, claims, damages and liabilities for which such indemnification is held
unenforceable (i) in such proportion as is appropriate to reflect the relative
benefits to the Company, on the one hand, and ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ on the
other hand, of the Offering as contemplated whether or not the Offering is
consummated or, (ii) if (but only if) the allocation provided for in clause
(i)
is for any reason unenforceable, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) but also the relative
fault of the Company, on the one hand and ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇, on the other
hand, as well as any other relevant equitable considerations. The Company agrees
that for the purposes of this paragraph the relative benefits to the Company
and
▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ of the Offering as contemplated shall be deemed to be
in
the same proportion that the total value received or contemplated to be received
by the Company or its shareholders, as the case may be, as a result of or in
connection with the Offering bear to the fees paid or to be paid to ▇▇▇▇ and
▇▇▇▇▇▇▇ ▇▇▇▇▇ under this Agreement. Notwithstanding the foregoing, the Company
expressly agrees that ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall not be required to contribute
any amount in excess of the amount by which fees paid ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇
hereunder (excluding reimbursable expenses), exceeds the amount of any damages
which ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ has otherwise been required to pay.
The
Company agrees that without ▇▇▇▇’▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇’▇ prior written consent,
which shall not be unreasonably withheld, it will not settle, compromise or
consent to the entry of any judgment in any pending or threatened claim, action
or proceeding in respect of which indemnification could be sought under the
indemnification provisions of this Agreement (in which ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇’▇
or any other Indemnified Party is an actual or potential party to such claim,
action or proceeding), unless such settlement, compromise or consent includes
an
unconditional release of each Indemnified Party from all liability arising
out
of such claim, action or proceeding.
In
the
event that an Indemnified Party is requested or required to appear as a witness
in any action brought by or on behalf of or against the Company in which such
Indemnified Party is not named as a defendant, the Company agrees to promptly
reimburse ▇▇▇▇ and/or ▇▇▇▇▇▇▇ ▇▇▇▇▇, as applicable, on a monthly basis for
all
expenses incurred by it in connection with such Indemnified Party’s appearing
and preparing to appear as such a witness, including, without limitation, the
reasonable fees and disbursements of its legal counsel.
A-2
If
multiple claims are brought with respect to at least one of which
indemnification is permitted under applicable law and provided for under this
Agreement, The Company agrees that any judgment or arbitrate award shall be
conclusively deemed to be based on claims as to which indemnification is
permitted and provided for, except to the extent the judgment or arbitrate
award
expressly states that it, or any portion thereof, is based solely on a claim
as
to which indemnification is not available.
A-3
APPENDIX
II
INFORMATION
TO BE SUPPLIED; CONFIDENTIALITY.
In
connection with ▇▇▇▇’▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇’▇ activities on behalf of the Company,
the Company will furnish ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ with all financial and other
information regarding the Company that ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ reasonably
believes appropriate to its assignment (all such information so furnished by
the
Company, whether furnished before or after the date of this Agreement, being
referred to herein as the “Information”). The Company will provide ▇▇▇▇ and
▇▇▇▇▇▇▇ ▇▇▇▇▇ with access to the officers, directors, employees, independent
accountants, legal counsel and other advisors and consultants of the Company.
The Company recognizes and agrees that ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ (i) will use
and
rely primarily on the Information and information available from generally
recognized public sources in performing the services contemplated by this
Agreement without independently verifying the Information or such other
information, (ii) does not assume responsibility for the accuracy of the
Information or such other information, and (iii) will not make an appraisal
of
any assets or liabilities owned or controlled by the Company or its market
competitors.
▇▇▇▇
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ will maintain the confidentiality of the Information and, unless
and until such information shall have been made publicly available by the
Company or by others without breach of a confidentiality agreement, shall
disclose the Information only as authorized by the Company or as required by
law
or by order of a governmental authority or court of competent jurisdiction.
In
the event that ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ is legally required to make disclosure
of
any of the Information, ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ will give notice to the Company
prior to such disclosure, to the extent that ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ can
practically do so.
The
foregoing paragraph shall not apply to information that:
|
(i)
|
at
the time of disclosure by the Company is, or thereafter becomes,
generally
available to the public or within the industries in which the Company
or
▇▇▇▇ or its affiliates and ▇▇▇▇▇▇▇ ▇▇▇▇▇ or its affiliates conduct
business, other than as a direct result of a breach by ▇▇▇▇ or ▇▇▇▇▇▇▇
▇▇▇▇▇ of its obligations under this
Agreement;
|
|
(ii)
|
prior
to or at the time of disclosure by the Company, was already in the
possession of, or conceived by, ▇▇▇▇ or any of its affiliates and
▇▇▇▇▇▇▇
▇▇▇▇▇ or any of its affiliates, or could have been developed by them
from
information then in their possession, by the application of other
information or techniques in their possession, generally available
to the
public, or available to ▇▇▇▇ or its affiliates and ▇▇▇▇▇▇▇ ▇▇▇▇▇
or its
affiliates other than from the
Company;
|
|
(iii)
|
at
the time of disclosure by the Company or thereafter, is obtained
by ▇▇▇▇
or any of its affiliates and ▇▇▇▇▇▇▇ ▇▇▇▇▇ or any of its affiliates
from a
third party who ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ reasonably believes to be
in
possession of the information not in violation of any contractual,
legal
or fiduciary obligation to the Company with respect to that information;
or
|
A-4
|
(iv)
|
is
independently developed by ▇▇▇▇ or its affiliates and ▇▇▇▇▇▇▇ ▇▇▇▇▇
or its
affiliates.
|
Nothing
in this Agreement shall be construed to limit the ability of ▇▇▇▇ or its
affiliates and ▇▇▇▇▇▇▇ ▇▇▇▇▇ or its affiliates to pursue, investigate, analyze,
invest in, or engage in investment banking, financial advisory or any other
business relationship with entities other than the Company, notwithstanding
that
such entities may be engaged in a business which is similar to or competitive
with the business of the Company, and notwithstanding that such entities may
have actual or potential operations, products, services, plans, ideas, customers
or supplies similar or identical to the Company’s, or may have been identified
by the Company as potential merger or acquisition targets or potential
candidates for some other business combination, cooperation or relationship.
The
Company expressly acknowledges and agrees that it does not claim any proprietary
interest in the identity of any other entity in its industry or otherwise,
and
that the identity of any such entity is not confidential
information.
A-5