Free Declaration in Support - District Court of California - California

Case 3:07-cv-06198-MHP

Document 51-2

Filed 07/10/2008

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EXHIBIT A

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DEC-22-2006 14:56

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Research Services Agreement
dated becenime , 20 06) is between Thomas Weisel Partners LLC ('Account'). (Research Vendor). and WHEREAS, Research vendor and Account hereby enter into an arrangement for Research Vendor to furnish Account with Research (as defined below) on the terms, and subject to the conditions, described herein. NOW THEREFORE, in consideration of the promises and the mutual covenants contained herein, and for good and Other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
This Agreement,

1. Research Products and Payment Obligations.

a) Research Vendor hereby grants to Account a non-exclusive, non-transferable right to receive all Thomas Weisel international Discovery Research Products (the 'Research"). b) Account shall assume the obligation to pay for the Research at a cost of 3 rk i_CP° per 40117141.2-- Account shall pay this amount directly. or cause such payments to be made on its behalf by a brokerdealer (a -Soft-Dollar Broker) with which Account has entered into an arrangement pursuant to Section 23(e) of the Securities Exchange Act of 1934, as amendet) if Account -Fleets to make this payment t directly, Research Vendor will bill Account directly on a l4icilL1-4,1q basis for the Research. If Account elects to have Soft-Dollar Broker Account may payments on Accbunts behalf, Research Vendor will bill either Account or Soft-Dollar Broker, as directed by Account.
2. Agreements of Account. Aocount acknowledges and agrees that: a) the Research does not purport to meet the objectives or needs of Account and is provided to Account for Informational purposes only;

regarding the financial condition, investment objectives, and relative sophistication of Account or (y) determining whether the Research is suitable for Account C) Account intends to incorporate the Research, as well as other data, information and analysis received from other sources or produced internally, into a mix of information and analysis for the purpose of forming its own conclusions and making its own investment decisions; d) the opinions expressed in the Research are subject to change without notice and may not be suitable for all types of Investors; a) Account will not distribute or otherwise make available the Research to any third-party without the prior written consent of Research Vendor, f) Account will take the same care to preserve the confidentiality of the Research as it uses with its own confidential Information; g) nothing herein shall obligate Research Vendor to produce any specific research report or cover any specific industry, issuer or security; h) Account does not, by virtue of this Agreement or otherwise, obtain any right, title or interest in or to the Research, and all right, title and interest therein, and in and to any proprietary data contained therein, shall remain with Research Vendor: and i) Account does not have the authority to grant to any third-party a license or consent or the right to use the Research.

b) Research Vendor shall have no responsibility whatsoever for (X) ascertaining the essential facts

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3. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Stale of New York, without giving effect to the conflicts of laws principles thereof. The parties agree and consent that the jurisdiction and venue of all matters relating to this Agreement shall be vested exclusively in the federal, state and local courts situated in the State of New York, without giving effect to its or any other jurisdiction's conflicts of laws, principles or rules. The parties further agree that the service of process by certified mall shall constitute personal service and shall result in jurisdiction over the parties. 4. No Assignment. Account may not assign this Agreement or any of its rights or obligations hereunder without permission of the Research Vendor. 07 20 sand shall continue untd terminated 10. Term. This Agreement is effective as of pursuant to Paragraph 5, below. . Any payment obligation , 20 11. Termination. This agreement will terminate on existing at the time of such termination shall remain the /la obligation of Account. Either party may terminate this Agreement at any time by providing at least 30 days notice to the other party, 12. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous negotiations, discussions and understandings of the parties, whether written or oral, between the parties. Should any provision of this Agreement be determined to be void, invalid or otherwise unenforceable by any court or tribunal of competent jurisdiction. such determination shall not affect the remaining provisions hereof which shall remain in full force and effect. No waiver or modification of any of the provisions of this Agreement shall be valid unless in writing and signed by both of the parties. 13. Disctaimer and Limitation of Liability. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES MADE BY EITHER PARTY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL INDIRECT OR CONSEQUENTIAL DAMAGES WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 9, Independent Contractor. The parties are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisee-franchisor relationship is intended or created by this Agreement. Neither party shall have any right, power or authority to create or represent to any person that it has the power to create any obligation, express or implied, or make any representations or warranties on behalf of the other party. 10. Miscellaneous. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same instrument. Account's clients are not third party beneficiaries of this Agreement. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized respective officers as of the day and year first above written. [ACCOUNT] By: [Name] [flue] THOMASWEISEL PARTNERS LW

Br [Jame] riThel

irg IF

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AMENDMENT
This Amendment dated December 20, 2006 shall amend the Research Services ("Agreement") between (including its subsidiaries and affiliates) ("Account") and Thomas Weisel Partners LLC ("Research Vendor"). The parties hereto agree that the following additions, changes and/or modifications shall be effective for all services and Research provided by Research Vendor to Account pursuant to the Agreement. I. The following section entitled "Warranty and Indemnity" shall be added to the Agreement and shall be applicable notwithstanding conflicting provisions of the Agreement. Warranty and Indemnity A. Research Vendor hereby represents and warrants to Account that it owns or has the right to provide the Research provided to Account hereunder. B. Notwithstanding any limitations of liability, Research Vendor shall, and hereby agrees to indemnify, defend and hold Account harmless from and against all claims, actions, damages, liabilities, costs and expenses (including, but not limited to, reasonable attorney's fees and expenses arising out of the defense of any claim whether proven or not) arising in any way out of a claim or allegation that the Research provided to Account pursuant to the Agreement infringes upon or violates any patent, copyright, trade secret or other proprietary right of a third party. The indemnities in this Section shall continue in full force and effect notwithstanding the termination of the Agreement, whether by time, operation of law or otherwise.

C. IN NO EVENT SHALL ACCOUNT BE LIABLE FOR ANY DIRECT DAMAGES UNDER THIS CONTRACT NO MATTER HOW CHARACTERIZED IN EXCESS OF ONE MILLION DOLLARS ($1,000,000.00).
2. Notwithstanding any provision to the contrary in the Agreement, agents, independent contractors and other third parties performing services for Account shall be entitled to use and access the Research for the benefit of Account. 3. Notwithstanding any provision to the contrary in the Agreement Account may assign this Agreement to an affiliate, subsidiary or any entity owned or controlled by Account or under common control with Account, or pursuant to a merger, consolidation, demutualization, change of control or corporate reorganization upon notice to Research Vendor. 4. Except as amended herein, all terms and conditions of the Agreement between the parties shall remain in full force and effect. Agreed to and accepted by: ("Account") Agreed to and accepted by: h Vendor") Thomas s LLC

Name: Title: Date: December 20, 2006

Name: Title: Date: I

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Research Services Agreement

This Agreement, dated December 20, 2006 is between Thomas Weisel Partners LLC ("Research Vendor"), and ("Account"). WHEREAS, Research Vendor and Account hereby enter into an arrangement for Research Vendor to furnish Account with Research (as defined below) on the terms, and subject to the conditions, described herein. NOW THEREFORE, in consideration of the promises and the mutual covenants contained herein, and for good and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:

I.

Research Products and Payment Obligations. a. Research Vendor hereby grants to Account a non-exclusive, non-transferable right to receive all Thomas Weisel International Discovery Research Products (the "Research"). b. Account shall assume the obligation to pay for the Research at a cost of $$60,000 per year. Account shall pay this amount directly, or cause such payments to be made on its behalf by a broker-dealer (a "Soft-Dollar Broker") with which Account has entered into an arrangement pursuant to Section 28(e) of the Securities Exchange Act of 1934, as amended. If Account elects to make this payment directly, Research Vendor will bill Account directly on a _xxxxxxxxx basis for the Research. If Account elects to have Soft-Dollar Broker make payments on Account's behalf, Research Vendor will bill either Account or Soft-Dollar Broker, as directed by Account.

2.

Agreements of Account. Account acknowledges and agrees that: a. the Research does not purport to meet the objectives or needs of Account and is provided to Account for informational purposes only; b. Research Vendor shall have no responsibility whatsoever for (x) ascertaining the essential facts regarding the financial condition, investment objectives, and relative sophistication of Account or (y) determining whether the Research is suitable for Account; c. Account intends to incorporate the Research, as well as other data, information and analysis received from other sources or produced internally, into a mix of information and analysis for the purpose of forming its own conclusions and making its own investment decisions; d. the -opinionS expressed in the Research are subject to change without notice and may not be suitable for all types of investors; e. Account will not distribute or otherwise make available the Research to any third-party without the prior written consent of Research Vendor; f. Account will take the same care to preserve the confidentiality of the Research as it uses with its own confidential information;

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g - nothing herein shall obligate Research Vendor to produce any specific research report or cover any specific industry, issuer or security; h. Account does not, by virtue of this Agreement or otherwise, obtain any right, title or interest in or to the Research, and all right, title and interest therein, and in and to any proprietary data contained therein, shall remain with Research Vendor; and i. Account does not have the authority to grant to any third-party a license or consent or the right to use the Research. Governing Law. This Agreement shall be governed by and construed in 2. accordance with the laws of the State of New York, without giving effect to the conflicts of laws principles thereof. The parties agree and consent that the jurisdiction and venue of all matters relating to this Agreement shall be vested exclusively in the federal, state and local courts situated in the State of New York, without giving effect to its or any other jurisdiction's conflicts of laws, principles or rules. The parties thither agree that the service of process by certified mail shall constitute personal service and shall result in jurisdiction over the parties. No Assignment. Account may not assign this Agreement or any of its rights or 3. obligations hereunder without permission of the Research Vendor. 4. Term. This Agreement is effective as of continue until terminated pursuant to Paragraph 5, below. ,20 and shall

5. Termination. Any payment obligation existing at the time of such termination shall remain the sole obligation of Account. This Agreement will be automatically renewable for successive one-year terms and either party may terminate this Agreement at any time by providing at least 30 days notice to the other party. Entire Agreement. This Agreement constitutes the entire agreement and 6. understanding between the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous negotiations, discussions and understandings of the parties, whether written or oral, between the parties. Should any provision of this Agreement be determined to be void, invalid or otherwise unenforceable by any court or tribunal of competent jurisdiction, such determination shall not affect the remaining provisions hereof which shall remain in full force and effect. No waiver or modification of any of the provisions of this Agreement shall be valid unless in writing and signed by both of the parties. 7. Disclaimer and Limitation of Liability. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES MADE BY EITHER PARTY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHETHER OR NOT SUCH PARTY HAS -SEEN ADVISED-OF THE-POSSIBILITY-OF Stral DA.MAGES. 8. Independent Contractor. The parties are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisee-franchisor relationship is intended or created by this Agreement. Neither party shall have any right, power or authority to create or represent to any person that it has the power to create any obligation, express or implied, or make any representations or warranties on behalf of the other party. 2

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9. Miscellaneous. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same instrument. Account's clients are not third party beneficiaries of this Agreement.

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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized respective officers as of the day and year first above written.

By:

THOMAISEL PARTNERS LLC By:

4

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Discovery Research

Research Services Agreement
This Agreement. dated December 7. 2006 a bemeen Tnomas Weise! Partners let.e, CResearoh Vendor"), aed i"Ac,cotint'). WHEREAS. Research Vendor and Account hereby enter into an arrangement for Research Vendor to furnish Account with Research las defined below) on the terms. and subject to the condihons. described herein. NOW THEREFORE : n consideration of the promises and the mutual covenants contained herein, and for geed :MK', other valuable consideration. toe receipt and sufficiency of which are hereby acknowledged. the Parties hetet° agree as follows: Research Products and Payment Obligations. a) b) Research Vendor hereby grants to Account a non-exclusive, non-transferable right to receive all Thomas Weisel International Discovery Research Products the 'Research"). Account shall assume the obligation to pay for the Research at a cost of $ 15,000_ per Quarter . Account shall pay this amount directly, or cause such payments to be made on its behalf by a broker-dealer (a "Soft-Dollar Broker') with which Account has entered into an arrangement pursuant to Section 2£1(e) of the Securities Exchange Act 011934 : as amended. If Account elects to make this payment directly, Research Vendor will bill Account ciirectly on a Quart= basis for the Research. If Account elects to have Soft-Dollar Broker Account may payments on Account's behalf, Research Vendor will bill either Account or Soft-Dollar Broker, as directed by Account.

2. Agreements of Account. Account acknowledges and agrees that: a) the Research does riot purport to meet the objectives for informational purposes only;
or

needs of Account and is provided to Account

h) Research Vendor shall have no responsibility 'whatsoever for ix) ascertaining the essential facts regarding the financial condition. investment objectives, and relative sophistication of Account or (y) determining whether the Research is suitable fer Account: Cl Account intends to incorporate the Research. as welt as other data. information and analysis received from other sources or produced internally. into a mix cif information and analysis for the purpose of terming its own conclusions and making Its own investment decisions: 0) the ocintons expressed in the Research are subject to change without notice and may not be suitable for all types 01 investors: e) f)
çp

Account will not distribute or otnerwise make available the Research to any third-party without the prior written consent of Research Vendor; Account wit) take the same care to preserve the confidentiality of the Research as it uses with its own confidential information: nothing herein shall obligate Research Vendor to produce any specific research report or cover any specific induslry. issuer or security:

11) Accourl hoes not by virtue of this Agreement or otherwise. obtain any right. title or interest in or to the P,esearch, and all right. title and interest therein. and 1r: audio any proprietary data contained therein, shalt remain wiet Research Vendor: and Accoent does not have the authority to grant to any third-party a license or consent or the right to use the Research.

vvww.discovery-research.com

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Discovery Research
irldf,;,,ar;11

3. Governing Law. This Ag reement OM be governed by and construed in accordance with the laws of the

State of New York, withoui giving effE.-ict to the conflicts of laws orincipter.i thereof. The panics agree and consent that the iullsdiction and venue of all matters relating to this Agreement shall be vested exclusively in the iederai. state aria Inca! courts situated in the State of New York, without giving e;tect to its o r any otter jurisdiction's conr:cts tyt taws. principles c.,-r faies. The parLer rtner agree that the service oi process by certified ma: shaii constitute personal service and SFlof: result in jurisdiction over the parties. without perm ission of trio tiesearcn Vendor.

4. No Assignment. Account may not assign this Agreement or any of its hohis or obligations hereunder 5. Term. This Agreement is effective as of :ICArA)111!...1._ 1 pursuant 10 Paragraph4, below.
6. Termination. This aoreement will terminate on 0-cc-NW c t.

20.0_3_ and shall continue until terminated

31 , 20 01. Any payment obligation existing at the time of such termination shall remain the sole obligation of Account. Either party may terminate this Agreement at any time by providing at least 30 days notice to the other party. 7. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof. and supersedes all prior and contemporaneous negotiations. discussions and understandings of the parties. whether written or oral, between the parties. Should any provision of this Agreement be determined to be void, invalid or otherwise unenforceable by any court or irbuna; of competent jurisdiction. SuCil determination shall not affect the remaining provisions hereof which shall remain in full force and effect. No waiver or modification of any of the provisions of this Agreement shall be valid unless in writing and signed by both of the parties. 8. Disclaimer and Limitation of Liability. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES MADE BY EITHER PARTY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. tl`i NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT OR CONSEOLIENTLAL DAMAGES WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 9. Independent Contractor. The parties are independent contractors, and no agency, partnership, joint venture, employee- :::Mployer or franchisee-franchisor relationship is intended or created by this Agreement. Neither party shall have any right, power or authority to create or represent to any person that it has the
1

power to create any obligation, express or implied, or make any representations or warranties on behalf of the other party.

10. Miscellaneous. This Agreement may be executed in counterparts. each of which wilt be deemed an original,

one and the same instrument. Account's clients are riot third party beneficiaries of this Agreement. IN WITNESS WHEREOF. the Parties have caused this Agreement to be executed by their duly authorized res p ective olftcess as of the day and year first above written, [ACCOUNB
Cut all of which taken together will constitute By: [Name] fiitiioj

--

By: [Narnel Fitlej

k Coprit
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r)

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Research Services Aereement ,20 ü 6 is between Thomas Weisel This Agreement, dated Out AL U. 0 _ _ Partners LLC ("Research Vendor"), and ("Account"). WHEREAS, Research Vendor and Account hereby enter into an arrangement for Research Vendor to furnish Account with Research (as defined below) on the terms, and subject to the conditions, described herein. NOW THEREFORE, in consideration of the promises and the mutual covenants containherein, and for good and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
ed

3

1.

Research Products and Payment Obligations. a. Research Vendor hereby grants to Account a non-exclusive, non-transferable right to receive all Thomas Weisel International Discovery Research Products (the "Research"). You will initially be receiving the product during its Beta phase. "Beta" is the phase in -which the product is nearly complete but some things still might not be in the final form and format. The Beta product is released to a group .of people, called "beta testers", who use it and then report anything they find that still needs to be fixed. Investors should consider the Beta nature of this report in making any investment decisions. (Please note: The Beta phase is currently scheduled to end effective Nov. 2, 2006). b. Accourit shall assume the obligation to pay for the Research at a cost of $ 4 C, 1- per me/tit, . Research Vendor agrees that it will bill Account directly on a IN ft, y . basis for the Research. _ Agreements of Account- Account aciaiowledges and agrees that: a. the Research does not purport to meet the Objectives or needs of Account and is provided to Account for informational purposes only; b. Research Vendor shall have no responsibility -whatsoever for (x) ascertaining the essential faits regarding the financial condition, investment objectives, and relative sophistication of Account or (y) determining whether the Research is suitable for Account; c. Account intends to incorporate the Research, as well as other data, information and analysis received from other sources or produced internally, into a mix of information and analysis for the purpose of forming its own conclusions and making its own investnient decisions; d. the opinions expressed in the Research are subject to change without notice and may not be suitable for all types of investors; e. Account will not distribute or otherwise make available the Research to any third-party without the prior written consent of Research Vendor, f. Account will take the same care to preserve the confidentiality of the Research as it uses with its own confidential information;

2.

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nothing herein shall obligate Research Vendor to produce any specific research report or cover any specific industry, issuer or security; h. Account does not, by :virtue of this Agreement or otherwise, obtain any right, title or interest in or to the Research, and all right, title and interest therein, and in. and to any proprietary data contained therein, shall remain with Research Vendor; and 1. Account does not have the authority to grant to any third-party a license or consent or the right to use the Research. Governing Law. This Agreement shall be governed by and construed in 2.. accordance with the laws of the State of New York, without giving effect to the conflicts of laws principles thereof. The parties agree and consent that the jurisdiction and venue of all matters relating to this Agreement. shall be vested exclusively in.-the federal, state and local courts Situated in the State Of New York, without giving effect to its or any other jurisdiction's conflicts of laws, principles or rules. The parties further agree that the service of process by certified mail shall constitute personal Service and shall result in jurisdiction over the parties. No Assignment Account may not assign' this Agreement or any of its rights or 3. obligations hereunder without permission of the Research Vendor. Term. This Agreement is effective as of 4. continue until terminated pursuant . toTaragraPh 5, below.
·

.e.710,-e 4 er"

/ t' , 20 06 and shall

Termination. This agreement will terminate on 5. r r 3 (s 20 t1( Any payment obligation existing at the time of such termination shall remain the sole obligation of Account. The Account may terminate this Agreement at any time during the second half of the term of -the agreement by providing at. least .30 days netice to the Research Vendor. 6._egrmgeiLt This Agreement Constitutes the entire agreement and A understanding between the parties with respect to the -subject matter hereof, and supersedes all prior and contemporaneous negotiations, discussions and understandings of the parties, whether written or oral, between the parties. Should any provision of this Agreement be determined to be void, invalid or otherwise unenforceable by any court or tribunal of competent jurisdiction, such determination shall not affect the remaining provisions hereof which, shall remain in full force and effect. No waiver or modification of any of the PrOVisions of this Agreement shall be valid unless in writing and signed by both of the parties.

7. Disclaimer and Limitation of Liahilitv. .THERE ARE NO EXPRESS OR IMPLIED WARRANTIES MADE BY -EITHER PARTY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR - PURPOSE. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 8. Independent Contractor. The parties are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisee-franchisor relationship is intended or created by this Agreement. Neither party shall have any right, power or authority to create or represent to any person that it has the power to create any.obfigation, express or implied, or make any representations or warranties on behalf of the other party. -2-

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Miscellaneous. This Agreement May be exeCuted in counterparts, each of which 9. will be deemed an original, but all of which taken together will constitute one and the same instrument. Account's clients are not third party beneficiaries of this Agreement.

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· IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized respective officers as of the day and year first above written.

[Accourm

By: [NeYnoll [Title]
THOMA WEISEL By: ame]

[Title]

74-

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Discovery Research

Research Services Agreement
. This Agreement, dated January 3, 2017 is between Thomas Weisel Partners LW ('fiesearch Vendor% and (-Aecount"). WHEREAS. Research Vendor and Account hereby enter Into an arrangement for Research Vendor to furnish Account with Research (as defined below) on the terms. and subject to the conditions, described herein. NOW THEREFORE, in consideration of the promises and the mutual covenants contained herein. and for good and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged. the Parties hereto agree as follows: 1. Research Products and Payment Obligations. a) Research Vendor hereby grants to Account a non-exclusive, non-transferable right to receive all Thomas Weisel International Discovery Research Products (the 'Research".

b) Account shall assume the obligation to pay for the Research at a cost of $60.000 per year. Account shall pay this amount directly, or cause such payments to be made on Its behalf by a broker-dealer (a -Soft-Dollar Broker) with which Account has entered into an arrangement pursuant to Section 28(e) of the Securities Exchange Act of 1934, as amended. If Account elects to make this payment directly, Research Vendor will bill Account directly on a Quarterhr basis for the Research. If Account elects to have Soft-Dollar Broker Account may payments on Account's behalf. Research Vendor will bill either Account or Soft-Dollar Broker, as directed by Account_ 2. Agreements of Account Account acknowledges and agrees that:

>6

a)

the Research does not purport to meet the objectives or needs of Account and is provided to Account for informational purposes only

b) Research Vendor shall have no responsibility whatsoever for (x) ascertaining the essential facts regarding the financial condition, investment objectives, and relative sophistication of Account or (y) determining whether the Research is suitable for Account; c) Account intends to incorporate the Research, as well as other data. Information and analysis received from other sources or produced Internally. into a mix of information and analysis for the purpose of forming its own conclusions and making its own investment decisions; d) the opinions expressed in the Research are subject to change without notice and may not be suitable for all types of investors; e) Account will not distribute or otherwise make available the Research to any third-party without the prior written consent of Research Vendor: f) g) Account will take the same care to preserve the confidentiality of confidential information;
the

Research as It uses with its own

nothing herein shall obligate Research Vendor to produce any specific research report or cover any specific industry. issuer or security;

h) Account does not, by virtue of this Agreement or otherwise, obtain any right, title or Interest in or to the Research, and all right title and interest therein, and In and to any proprietary data contained therein, shall remain with Research Vendor; and i) Account does not have tho authority to grant to any third-party a license or consent or the right to use the Research.

IS NNE

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427. Discovery Research 3. 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 principles thereof_ The parties agree and consent that the jurisdiction and venue of all matters relating to this Agreement shall be vested exclusively in the federal, state and local courts situated in the State of New York. without giving effect to Its or any other jurisdiction's conflicts of laws, principles or rules. The parties further agree that the service of process by certified mail shall constitute personal service and shall result In jurisdiction over the panics_ 4. No Assignment. Account may not assign this Agreement or any of its rights or obligations hereunder without permission of the Research Vendor. S. Tema_ This Agreement is effective as of January 4. 2007 and shall continue until terminated pursuant to Paragraph 5. below. 6. Termlnatiog. This agreement will terminate on January 4, 2008. Any payment obligation existing at tie time of such termination shall remain tho sole obligation of Account. Either party may terminate this Agreement at any time by providing at feast 30 days notice to the other party. 7. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous negotiations. discussions and understandings of the parties, whether written or oral, between the parties. Should any provision of this Agreement be determined to be void, invalid or othenvise unenforceable by any teen or tribunal of competent jurisdiction, such determtnatIon shall not affect the remaining provisions hereof which shall remain in full force and affect No waiver or modification of any of the provisions of this Agreement shall be valid unless in writing and signed by both of the parties. B. Disclaimer and Limitation of Liability. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES MADE BY EITHER PARTY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 9. Independent Contractor. The parties are independent contractors, and no agency, partnership, joint venture, erne/ripe-employer or franchisee-franchisor relationship is intended or created by this Agreement. Neither party shall have any right, power or authority to create or represent to any person that it has the power to create any obligation, express or implied. or snake any representations or warranties on behalf of the other party. 10. Miscellaneous. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same instrument. Account's clients aro not third party beneficiaries of this Agreement. INWITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized respective officers as of the day and year first above written. (ACCOUNT] By: [Name]
[Title]

THOMAS WE/SE A.QTNERS LLC By: [Name] [Title]

12 EMS

www.discovery-research.com

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Consulting Services Agreement

This Agreement, dated 1..1-C ("Vendor"). and

October 15. 2007 is between Thomas Weisel Partners _ ("Account").

WHEREAS, Vendor and Account hereby enter into an arrangement for Vendor to furnish Account with Services (as defined below) on the terms, and subject to the conditions, described herein. NOW THEREFORE, in consideration of the promises and the mutual covenants contained herein, and for good and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows: 1. Services and Payment Obligations. a. Vendor hereby grants to Account a non-transferable right to receive Thomas Weisel International Consulting Services (the "Product"). b. The Product may consist of any of the following: Channel Checks, Initiations, Valuation Analyses, White Papers, Industry Overviews, Modeling, and Transaction Analyses c. Account shall assume the obligation to pay for the Product at a cost of $ 15.000 for 100 hours of consultin2 services in 402007. Vendor will bill Account directly on a hard dollar basis for the Research. 2. Agreements of Account. Account acknowledges and agrees that: a. the Product does not purport to meet the objectives or needs of Account and is provided to Account for informational purposes only; b. Vendor shall have no responsibility whatsoever for (x) ascertaining the essential facts regarding the financial condition, investment objectives, and relative sophistication of Account or (y) determining whether the Services are suitable for Account; c. Account intends to incorporate the Product, as well as other data, information and analysis received from other sources or produced internally, into a mix of information and analysis for the purpose of forming its own conclusions and making its own investment decisions; d. any opinions expressed in the Product provided are subject to change without notice and may not be suitable for all types of investors; e. Account will not distribute or otherwise make available the Product to any third-party without the prior written consent of Vendor; f. Account will take the same care to preserve the confidentiality of the Product as it uses with its own confidential information; g. nothing herein shall obligate Vendor to produce any specific Product or cover any specific industry, issuer or security;

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Ii. Account does not, by virtue of this Agreement or otherwise, obtain any right, title or interest in or to the Product, and all right, title and interest therein, and in and to any proprietary data contained therein, shall remain with Vendor; and i. Account does not have the authority to grant to any third-party a license or consent or the right to use the Product 2. 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 principles thereof The parties agree and consent that the jurisdiction and venue of all matters relating to this Agreement shall be vested exclusively in the federal, state and local courts situated in the State of New York, without giving effect to its or any other jurisdiction's conflicts of laws, principles or rules. The parties further agree that the service of process by certified mail shall constitute personal so-vice and shall result in jurisdiction over the parties. No Assignment. Account may not assign this Agreement or any of its rights or 3. obligations hereunder without permission of the Vendor. 4. Term. This Agreement is effective as of October I , 2007 and shall continue until terminated pursuant to Paragraph 5, below. Termination. This agreement will terminate on Ian 1 5. , 2Q . Any payment obligation existing at the time of such termination shall remain the sole obligation of Account. Either party may terminate this Agreement at any time by providing at least 30 days notice to the other party. Entire Agreement. This Agreement constitutes the entire agreement and 6. understanding between the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous negotiations, discussions and understandings of the parties, whether written or oral, between the parties. Should any provision of this Agreement be determined to be void, invalid or otherwise unenforceable by any court or tribunal of competent jurisdiction, such determination shall not affect the remaining provisions hereof which shall remain in full force and effect. No waiver or modification of any of the provisions of this Agreement shall be valid unless in writing and signed by both of the parties. 7. Disclaimer and Limitation of Liability. THERE ARE NO EXPRESS 012 IMPLIED WARRANTIES MADE BY EITHER PARTY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 8. Independent Contractor. The parties are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisee-franchisor relationship is intended or created by this Agreement. Neither party shall have any right, power or authority to create or represent to any person that it has the power to create any obligation, express or implied, or make any representations or warranties on behalf of the other party.

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9. Miscellaneous. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same instrument Account's clients are not third party beneficiaries of this Agreement.

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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized respective officers as of the day and year first above written.

[ACCOUNT]

m s

By [Name] [Title]
r WEISEL PARTNERS LLC

By: [Name] K_

[Titij 4,5,0,54,6 I

bi

.LC1

-4-

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