AND ANY OTHER INDEMNIFIED PERSON, ON THE
OTHER HAND, IN CONNECTION WITH THE MATTERS AS TO WHICH SUCH LIABILITIES OR
EXPENSES RELATE, AS WELL AS ANY OTHER RELEVANT EQUITABLE CONSIDERATIONS;
PROVIDED THAT IN NO EVENT SHALL THE COMPANY CONTRIBUTE LESS THAN THE AMOUNT
NECESSARY TO ENSURE THAT ALL INDEMNIFIED PERSONS, IN THE AGGREGATE, ARE NOT
LIABLE FOR ANY LIABILITIES AND EXPENSES IN EXCESS OF THE AMOUNT OF COMMISSIONS
ACTUALLY RECEIVED BY THE PLACEMENT AGENT PURSUANT TO THIS AGREEMENT. THE
RELATIVE FAULT 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 THE
COMPANY ON THE ONE HAND OR THE PLACEMENT AGENT ON THE OTHER AND THE PARTIES'
RELATIVE INTENT, KNOWLEDGE, ACCESS TO INFORMATION AND OPPORTUNITY TO CORRECT OR
PREVENT SUCH STATEMENT OR OMISSION. THE COMPANY AND THE PLACEMENT AGENT AGREE
THAT IT WOULD NOT BE JUST AND EQUITABLE IF CONTRIBUTIONS PURSUANT TO THIS
SUBSECTION (D) WERE DETERMINED BY PRO RATA ALLOCATION OR BY ANY OTHER METHOD OF
ALLOCATION WHICH DOES NOT TAKE ACCOUNT OF THE EQUITABLE CONSIDERATIONS REFERRED
TO ABOVE IN THIS SUBSECTION (D). FOR PURPOSES OF THIS PARAGRAPH, THE RELATIVE
BENEFITS TO THE COMPANY, ON THE ONE HAND, AND TO THE PLACEMENT AGENT ON THE
OTHER HAND, OF THE MATTERS CONTEMPLATED BY THIS AGREEMENT SHALL BE DEEMED TO BE
IN THE SAME PROPORTION AS: (A) THE TOTAL VALUE RECEIVED BY THE COMPANY IN THE
OFFERING, WHETHER OR NOT SUCH OFFERING IS CONSUMMATED, BEARS TO (B) THE
COMMISSIONS PAID TO THE PLACEMENT AGENT UNDER THIS AGREEMENT. NOTWITHSTANDING
THE ABOVE, NO PERSON GUILTY OF FRAUDULENT MISREPRESENTATION WITHIN THE MEANING
OF SECTION 11(F) OF THE SECURITIES ACT SHALL BE ENTITLED TO CONTRIBUTION FROM A
PARTY WHO WAS NOT GUILTY OF FRAUDULENT MISREPRESENTATION.
18
E.
LIMITATION. THE COMPANY ALSO AGREES THAT NO INDEMNIFIED
PERSON SHALL HAVE ANY LIABILITY (WHETHER DIRECT OR INDIRECT, IN CONTRACT OR TORT
OR OTHERWISE) TO THE COMPANY FOR OR IN CONNECTION WITH ADVICE OR SERVICES
RENDERED OR TO BE RENDERED BY ANY INDEMNIFIED PERSON PURSUANT TO THIS AGREEMENT,
THE TRANSACTIONS CONTEMPLATED THEREBY OR ANY INDEMNIFIED PERSON'S ACTIONS OR
INACTIONS IN CONNECTION WITH ANY SUCH ADVICE, SERVICES OR TRANSACTIONS, EXCEPT
TO THE EXTENT THAT A COURT OF COMPETENT JURISDICTION HAS MADE A FINDING THAT
LIABILITIES (AND RELATED EXPENSES) OF THE COMPANY HAVE RESULTED PRIMARILY FROM
SUCH INDEMNIFIED PERSON'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN CONNECTION
WITH ANY SUCH ADVICE, ACTIONS, INACTIONS OR SERVICES.
F.
SURVIVAL. THE ADVANCEMENT, REIMBURSEMENT, INDEMNITY AND
CONTRIBUTION OBLIGATIONS SET FORTH IN THIS SECTION 9 SHALL REMAIN IN FULL FORCE
AND EFFECT REGARDLESS OF ANY TERMINATION OF, OR THE COMPLETION OF ANY
INDEMNIFIED PERSON'S SERVICES UNDER OR IN CONNECTION WITH, THIS AGREEMENT.
10.
LIMITATION OF DAWSON'S LIABILITY TO THE COMPANY.
DAWSON AND THE COMPANY FURTHER AGREE THAT NEITHER DAWSON NOR ANY OF ITS
AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, CONTROLLING PERSONS
(WITHIN THE MEANING OF SECTION 15 OF