PARTIES HERETO AGREE THAT IT WOULD NOT BE JUST AND EQUITABLE IF CONTRIBUTION
PURSUANT TO THIS PARAGRAPH (E)(4) WERE DETERMINED BY PRO RATA ALLOCATION OR BY
ANY OTHER METHOD OF ALLOCATION THAT DOES NOT TAKE INTO ACCOUNT THE EQUITABLE
CONSIDERATIONS REFERRED TO IN THE IMMEDIATELY PRECEDING PARAGRAPH.
NOTWITHSTANDING THE PROVISION OF THIS PARAGRAPH (E)(4), NO PURCHASER SHALL BE
REQUIRED TO CONTRIBUTE, IN THE AGGREGATE, ANY AMOUNT IN EXCESS OF THE AMOUNT BY
WHICH THE PROCEEDS ACTUALLY RECEIVED BY SUCH PURCHASER FROM THE SALE OF THE
REGISTRABLE SECURITIES SUBJECT TO THE PROCEEDING EXCEEDS THE AMOUNT OF ANY
DAMAGES THAT SUCH PURCHASER HAS
9
OTHERWISE BEEN REQUIRED TO PAY BY REASON OF SUCH UNTRUE OR ALLEGED UNTRUE
STATEMENT OR OMISSION OR ALLEGED OMISSION.
NO PERSON GUILTY OF FRAUDULENT
MISREPRESENTATION (WITHIN THE MEANING OF SECTION 11(F) OF THE SECURITIES ACT)
SHALL BE ENTITLED TO CONTRIBUTION FROM ANY PERSON WHO WAS NOT GUILTY OF SUCH
FRAUDULENT MISREPRESENTATION.
THE INDEMNITY AND CONTRIBUTION AGREEMENTS CONTAINED IN THIS SECTION ARE IN
ADDITION TO ANY LIABILITY THAT THE INDEMNIFYING PARTIES MAY HAVE TO THE
INDEMNIFIED PARTIES AND SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT FOR A
PERIOD OF THREE YEARS FROM THE CLOSING DATE.
F.
MISCELLANEOUS
(1)
ALL PRONOUNS AND ANY VARIATIONS THEREOF USED HEREIN SHALL BE DEEMED
TO REFER TO THE MASCULINE, FEMININE, SINGULAR OR PLURAL, AS IDENTITY OF THE
PERSON OR PERSONS MAY REQUIRE.
(2)
ANY NOTICE OR OTHER DOCUMENT REQUIRED OR PERMITTED TO BE GIVEN OR
DELIVERED TO THE PURCHASERS SHALL BE IN WRITING AND SENT (I) BY FAX IF THE
SENDER ON THE SAME DAY SENDS A CONFIRMING COPY OF SUCH NOTICE BY A RECOGNIZED
OVERNIGHT DELIVERY SERVICE (CHARGES PREPAID), (B) BY REGISTERED OR CERTIFIED
MAIL WITH RETURN RECEIPT REQUESTED (POSTAGE PREPAID), OR (C) BY A RECOGNIZED
OVERNIGHT DELIVERY SERVICE (WITH CHARGES PREPAID):
(A)
IF TO THE COMPANY, AT
TRANSGENOMIC, INC.
12325 EMMET STREET
OMAHA, NE 68164
FAX NO.:(402) 452-5447
ATTENTION: CHIEF FINANCIAL OFFICER
OR SUCH OTHER ADDRESS AS IT SHALL HAVE SPECIFIED BY THE COMPANY TO THE
PURCHASERS IN WRITING, WITH A COPY (WHICH SHALL NOT CONSTITUTE NOTICE) TO:
STEVEN P. AMEN
KUTAK ROCK LLP
1650 FARNAM STREET
OMAHA, NE 68102
FAX. NO.: (402) 346-1148
(B)
IF TO THE PURCHASER, AT ITS ADDRESS SET FORTH ON THE SIGNATURE PAGE
TO THIS AGREEMENT, OR SUCH OTHER ADDRESS AS IT SHALL HAVE SPECIFIED TO THE
COMPANY IN WRITING.
(3)
FAILURE OF ANY PARTY TO EXERCISE ANY RIGHT OR REMEDY UNDER THIS
AGREEMENT OR ANY OTHER AGREEMENT BETWEEN THE COMPANY AND ANY PURCHASERS, OR
OTHERWISE, OR DELAY BY SUCH PARTY IN EXERCISING SUCH RIGHT OR REMEDY, WILL NOT
OPERATE AS A WAIVER THEREOF.
NO WAIVER BY A PARTY WILL BE EFFECTIVE UNLESS AND
UNTIL IT IS IN WRITING AND SIGNED BY SUCH PARTY.
(4)
THIS AGREEMENT SHALL BE ENFORCED, GOVERNED AND CONSTRUED IN ALL
RESPECTS IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, AS SUCH LAWS ARE
APPLIED BY THE COURTS THEREOF TO AGREEMENTS ENTERED INTO AND TO BE PERFORMED IN
SUCH STATE.