SECTION IN RESPECT OF ANY LOSSES SHALL NOT EXCEED THE NET PROCEEDS RECEIVED
BY SUCH INVESTOR IN THE REGISTERED OFFERING OUT OF WHICH SUCH LOSSES ARISE. THE
RELATIVE FAULT OF SUCH INVESTOR, ON THE ONE HAND, AND OF THE COMPANY
REGISTRATION INDEMNITEE, ON THE OTHER HAND, SHALL BE DETERMINED BY REFERENCE TO,
AMONG OTHER FACTORS, WHETHER THE UNTRUE STATEMENT OF A MATERIAL FACT OR OMISSION
TO STATE A MATERIAL FACT RELATES TO INFORMATION SUPPLIED BY SUCH INVESTOR OR BY
THE COMPANY REGISTRATION INDEMNITEE AND THE PARTIES' RELATIVE INTENT, KNOWLEDGE,
ACCESS TO INFORMATION AND OPPORTUNITY TO CORRECT OR PREVENT SUCH STATEMENT OR
OMISSION; SUCH INVESTOR AND EACH COMPANY REGISTRATION INDEMNITEE AGREE THAT IT
WOULD NOT BE JUST AND EQUITABLE IF CONTRIBUTION PURSUANT TO THIS
SECTION 10(G)(IV) WERE DETERMINED BY PRO RATA ALLOCATION OR BY ANY OTHER METHOD
OF ALLOCATION THAT DOES NOT TAKE ACCOUNT OF THE EQUITABLE CONSIDERATIONS
REFERRED TO IN SECTION 10(G)(II). NO COMPANY REGISTRATION INDEMNITEE GUILTY OF
FRAUDULENT MISREPRESENTATION (WITHIN THE MEANING OF SECTION 11(F) OF THE
SECURITIES ACT) SHALL BE ENTITLED TO CONTRIBUTION FROM SUCH INVESTOR IF THE
COMPANY REGISTRATION INDEMNITEE WAS NOT GUILTY OF SUCH FRAUDULENT
MISREPRESENTATION.
39
(H)
ASSIGNMENT OF REGISTRATION RIGHTS. THE
RIGHTS OF EACH INVESTOR WITH RESPECT TO THE REGISTRATION OF REGISTRABLE
SECURITIES PURSUANT TO SECTION 10 MAY BE ASSIGNED BY SUCH INVESTOR IN CONNECTION
WITH A TRANSFER OF SHARES OF COMMON STOCK REPRESENTING AT LEAST 3% OF THE
COMPANY'S THEN OUTSTANDING SHARES OF COMMON STOCK (OR SHARES OF CONVERTIBLE
PREFERRED STOCK REPRESENTING AT LEAST 3% OF THE COMPANY'S THEN OUTSTANDING
SHARES OF COMMON STOCK, GIVING EFFECT TO THE CONVERSION THEREOF AND TREATING
EACH CONVERSION SECURITY THAT IS NOT A SHARE OF COMMON STOCK AS IF IT HAD
CONVERTED INTO COMMON STOCK); PROVIDED, HOWEVER, THAT THE COMPANY SHALL HAVE NO
OBLIGATIONS WITH RESPECT TO SUCH TRANSFEREE OR ASSIGNEE UNTIL SUCH TIME AS SUCH
INVESTOR OR SUCH TRANSFEREE OR ASSIGNEE SHALL HAVE FURNISHED TO THE COMPANY
WRITTEN NOTICE OF THE NAME AND ADDRESS OF SUCH TRANSFEREE OR ASSIGNEE AND THE
NUMBER AND TYPE OF REGISTRABLE SECURITIES THAT WERE ASSIGNED.
(I)
RULE 144 REPORTING. WITH A VIEW TO
MAKING AVAILABLE TO THE INVESTORS AND OTHER HOLDERS THE BENEFITS OF CERTAIN
RULES AND REGULATIONS OF THE COMMISSION WHICH MAY PERMIT THE SALE OF THE
REGISTRABLE SECURITIES TO THE PUBLIC WITHOUT REGISTRATION, THE COMPANY AGREES TO
USE ITS REASONABLE BEST EFFORTS TO:
(I)
MAKE AND KEEP PUBLIC INFORMATION
AVAILABLE, AS THOSE TERMS ARE UNDERSTOOD AND DEFINED IN RULE 144(C)(1) OR ANY
SIMILAR OR ANALOGOUS RULE PROMULGATED UNDER THE SECURITIES ACT, AT ALL TIMES
AFTER THE EFFECTIVE DATE OF THIS AGREEMENT;
(II)
(A) FILE WITH THE COMMISSION, IN A TIMELY
MANNER, ALL REPORTS AND OTHER DOCUMENTS REQUIRED OF THE COMPANY UNDER THE
EXCHANGE ACT AND (B) IF AT ANY TIME THE COMPANY IS NOT REQUIRED TO FILE SUCH
REPORTS, MAKE AVAILABLE, UPON REQUEST OF ANY HOLDER, SUCH INFORMATION NECESSARY
TO PERMIT SALES PURSUANT TO RULE 144A (INCLUDING THE INFORMATION REQUIRED BY
RULE 144A(D)(4) UNDER THE SECURITIES ACT); AND