PARTY IN
CONNECTION WITH INVESTIGATING OR DEFENDING ANY SUCH ACTION OR CLAIM TO THE
EXTENT CONSISTENT WITH SECTION 10(C) HEREOF.
NOTWITHSTANDING THE FOREGOING
PROVISIONS OF THIS SECTION 10(D), NEITHER AGENT SHALL BE REQUIRED TO CONTRIBUTE
ANY AMOUNT IN EXCESS OF THE COMMISSIONS RECEIVED BY IT UNDER THIS AGREEMENT AND
NO PERSON FOUND GUILTY OF FRAUDULENT MISREPRESENTATION (WITHIN THE MEANING OF
SECTION 11(F) OF THE SECURITIES ACT) WILL BE ENTITLED TO CONTRIBUTION FROM ANY
PERSON WHO WAS NOT GUILTY OF SUCH FRAUDULENT MISREPRESENTATION.
FOR PURPOSES OF
THIS SECTION 10(D), ANY PERSON WHO CONTROLS A PARTY TO THIS AGREEMENT WITHIN THE
MEANING OF THE SECURITIES ACT, AND ANY OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES
OR AGENTS OF EITHER AGENT, WILL HAVE THE SAME RIGHTS TO CONTRIBUTION AS THAT
PARTY, AND EACH OFFICER OF THE COMPANY WHO SIGNED THE REGISTRATION STATEMENT
WILL HAVE THE SAME RIGHTS TO CONTRIBUTION AS THE COMPANY, SUBJECT IN EACH CASE
TO THE PROVISIONS HEREOF.
ANY PARTY ENTITLED TO CONTRIBUTION, PROMPTLY AFTER
RECEIPT OF NOTICE OF COMMENCEMENT OF ANY ACTION AGAINST SUCH PARTY IN RESPECT OF
WHICH A CLAIM FOR CONTRIBUTION MAY BE MADE UNDER THIS SECTION 10(D), WILL NOTIFY
ANY SUCH PARTY OR PARTIES FROM WHOM CONTRIBUTION MAY BE SOUGHT, BUT THE OMISSION
TO SO NOTIFY WILL NOT RELIEVE THAT PARTY OR PARTIES FROM WHOM CONTRIBUTION MAY
BE SOUGHT FROM ANY OTHER OBLIGATION IT OR THEY MAY HAVE UNDER THIS
SECTION 10(D) EXCEPT TO THE EXTENT THAT THE FAILURE TO SO NOTIFY SUCH OTHER
PARTY MATERIALLY PREJUDICED THE SUBSTANTIVE RIGHTS OR DEFENSES OF THE PARTY FROM
WHOM CONTRIBUTION IS SOUGHT.
EXCEPT FOR A SETTLEMENT ENTERED INTO PURSUANT TO
THE LAST SENTENCE OF SECTION 10(C) HEREOF, NO PARTY WILL BE LIABLE FOR
CONTRIBUTION WITH RESPECT TO ANY ACTION OR CLAIM SETTLED WITHOUT ITS WRITTEN
CONSENT IF SUCH CONSENT IS REQUIRED PURSUANT TO SECTION 10(C) HEREOF.
11.
REPRESENTATIONS AND AGREEMENTS TO SURVIVE
DELIVERY.
THE INDEMNITY AND CONTRIBUTION AGREEMENTS CONTAINED IN SECTION 10 OF
THIS AGREEMENT AND ALL REPRESENTATIONS AND
26
WARRANTIES OF THE COMPANY HEREIN OR IN CERTIFICATES DELIVERED PURSUANT HERETO
SHALL SURVIVE, AS OF THEIR RESPECTIVE DATES, REGARDLESS OF (I) ANY INVESTIGATION
MADE BY OR ON BEHALF OF EITHER AGENT, ANY CONTROLLING PERSONS, OR THE COMPANY
(OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS OR CONTROLLING PERSONS),
(II) DELIVERY AND ACCEPTANCE OF THE PLACEMENT SHARES AND PAYMENT THEREFOR OR
(III) ANY TERMINATION OF THIS AGREEMENT.
12.
TERMINATION.
(A)
EACH AGENT SHALL HAVE THE RIGHT BY GIVING
NOTICE AS HEREINAFTER SPECIFIED AT ANY TIME TO TERMINATE THIS AGREEMENT IF
(I) ANY MATERIAL ADVERSE EFFECT, OR ANY DEVELOPMENT THAT HAS ACTUALLY OCCURRED
AND THAT IS REASONABLY EXPECTED TO CAUSE A MATERIAL ADVERSE EFFECT HAS OCCURRED
THAT, IN THE REASONABLE JUDGMENT OF SUCH AGENT, MAY MATERIALLY IMPAIR THE
ABILITY OF SUCH AGENT TO SELL THE PLACEMENT SHARES HEREUNDER, (II) THE COMPANY
SHALL HAVE FAILED, REFUSED OR BEEN UNABLE TO PERFORM ANY AGREEMENT ON ITS PART
TO BE PERFORMED HEREUNDER; PROVIDED, HOWEVER, IN THE CASE OF ANY FAILURE OF THE
COMPANY TO DELIVER (OR CAUSE