PARTY AND OF THE
INDEMNIFIED PARTY 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 INDEMNIFYING PARTY OR BY THE INDEMNIFIED PARTY AND THE PARTIES'
RELATIVE INTENT, KNOWLEDGE, ACCESS TO INFORMATION AND OPPORTUNITY TO CORRECT OR
PREVENT SUCH STATEMENT OR OMISSION.
(V)
NOTWITHSTANDING THE FOREGOING, TO THE EXTENT THAT THE PROVISIONS
ON INDEMNIFICATION AND CONTRIBUTION CONTAINED IN THE UNDERWRITING AGREEMENT
ENTERED INTO IN CONNECTION WITH ANY UNDERWRITTEN PUBLIC OFFERING CONTEMPLATED BY
THIS AGREEMENT ARE IN CONFLICT WITH THE FOREGOING PROVISIONS, THE PROVISIONS IN
SUCH UNDERWRITING AGREEMENT SHALL BE CONTROLLING.
(VI)
THE FOREGOING INDEMNITY AGREEMENT OF THE COMPANY AND HOLDERS IS
SUBJECT TO THE CONDITION THAT, INSOFAR AS THEY RELATE TO ANY LOSS, CLAIM,
LIABILITY OR DAMAGE ARISING OUT OF A STATEMENT MADE IN OR OMITTED FROM A
PRELIMINARY PROSPECTUS BUT ELIMINATED OR REMEDIED IN THE AMENDED PROSPECTUS ON
FILE WITH THE COMMISSION AT THE TIME THE REGISTRATION STATEMENT IN QUESTION
BECOMES EFFECTIVE OR THE AMENDED PROSPECTUS
8
FILED WITH THE COMMISSION PURSUANT TO RULE 424(B) UNDER THE SECURITIES ACT (THE
"FINAL PROSPECTUS"), SUCH INDEMNITY OR CONTRIBUTION AGREEMENT SHALL NOT INURE TO
THE BENEFIT OF ANY UNDERWRITER OR HOLDER IF A COPY OF THE FINAL PROSPECTUS WAS
FURNISHED TO THE UNDERWRITER AND WAS NOT FURNISHED TO THE PERSON ASSERTING THE
LOSS, LIABILITY, CLAIM OR DAMAGE AT OR PRIOR TO THE TIME SUCH ACTION IS REQUIRED
BY THE SECURITIES ACT.
(F)
INFORMATION BY THE HOLDERS.
EACH OF THE HOLDERS HOLDING SECURITIES INCLUDED IN ANY REGISTRATION SHALL USE
ITS REASONABLE BEST EFFORTS TO TIMELY FURNISH TO THE COMPANY SUCH INFORMATION
REGARDING SUCH HOLDER AND THE DISTRIBUTION PROPOSED BY SUCH HOLDER AS THE
COMPANY MAY REASONABLY REQUEST IN WRITING AND AS SHALL BE REASONABLY REQUIRED IN
CONNECTION WITH ANY REGISTRATION, QUALIFICATION OR COMPLIANCE REFERRED TO IN
THIS SECTION 2.
(G)
TERMINATION.
THE REGISTRATION RIGHTS SET FORTH IN THIS SECTION 2
SHALL BE AVAILABLE TO ANY HOLDER UNTIL SUCH TIME AS (I) ALL OF THE REGISTRABLE
SECURITIES HELD BY SUCH HOLDER HAVE BEEN SOLD IN A REGISTRATION PURSUANT TO THE
SECURITIES ACT OR (II) THE RESTRICTIONS CONTAINED IN SECTION 6 OF THE AMENDED
AND RESTATED STANDSTILL AGREEMENT ARE TERMINATED PURSUANT TO SECTION 6(D)
THEREOF.
SECTION 3.
MISCELLANEOUS
(A)
DIRECTLY OR INDIRECTLY.
WHERE ANY PROVISION IN THIS AGREEMENT
REFERS TO ACTION TO BE TAKEN BY ANY PERSON, OR WHICH SUCH PERSON IS PROHIBITED
FROM TAKING, SUCH PROVISION SHALL BE APPLICABLE WHETHER SUCH ACTION IS TAKEN
DIRECTLY OR INDIRECTLY BY SUCH PERSON.
(B)
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
(C)
SECTION HEADINGS.
THE HEADINGS OF THE SECTIONS AND SUBSECTIONS OF
THIS AGREEMENT ARE INSERTED FOR CONVENIENCE ONLY AND SHALL NOT BE DEEMED TO
CONSTITUTE A PART THEREOF.
(D)
NOTICES.
(I)
ALL