RESPECT THEREOF) REFERRED
TO THEREIN, THEN EACH INDEMNIFYING PARTY SHALL CONTRIBUTE TO THE AMOUNT PAID OR
PAYABLE BY SUCH INDEMNIFIED PARTY AS A RESULT OF SUCH LOSSES, CLAIMS, DAMAGES OR
LIABILITIES (OR ACTIONS IN RESPECT THEREOF) IN SUCH PROPORTION AS IS APPROPRIATE
TO REFLECT THE RELATIVE FAULT OF THE COMPANY ON THE ONE HAND AND THE INVESTOR ON
THE OTHER IN CONNECTION WITH THE STATEMENTS OR OMISSIONS OR OTHER MATTERS WHICH
RESULTED IN SUCH LOSSES, CLAIMS, DAMAGES OR LIABILITIES (OR ACTIONS IN RESPECT
THEREOF), AS WELL AS ANY OTHER RELEVANT EQUITABLE CONSIDERATIONS.
THE RELATIVE
FAULT SHALL BE DETERMINED BY REFERENCE TO, AMONG OTHER THINGS, IN THE CASE OF AN
UNTRUE STATEMENT, WHETHER THE UNTRUE STATEMENT RELATES TO INFORMATION SUPPLIED
BY THE COMPANY ON THE ONE HAND OR THE INVESTOR ON THE OTHER AND THE PARTIES'
RELATIVE INTENT, KNOWLEDGE, ACCESS TO INFORMATION AND OPPORTUNITY TO CORRECT OR
PREVENT SUCH UNTRUE STATEMENT.
THE COMPANY AND THE INVESTOR, OR INVESTORS IF
THERE ARE MORE THAN ONE, AGREE THAT IT WOULD NOT BE JUST AND EQUITABLE IF
CONTRIBUTION PURSUANT TO THIS SUBSECTION (IV) WERE DETERMINED BY PRO RATA
ALLOCATION (EVEN IF THE INVESTORS WERE TREATED AS ONE ENTITY FOR SUCH PURPOSE)
OR BY ANY OTHER METHOD OF ALLOCATION WHICH DOES NOT TAKE INTO ACCOUNT THE
EQUITABLE CONSIDERATIONS REFERRED TO ABOVE IN THIS SUBSECTION (IV).
THE AMOUNT
PAID OR PAYABLE BY AN INDEMNIFIED PARTY AS A RESULT OF THE LOSSES, CLAIMS,
DAMAGES OR LIABILITIES (OR ACTIONS IN RESPECT THEREOF) REFERRED TO ABOVE IN THIS
SUBSECTION (IV) SHALL BE DEEMED TO INCLUDE ANY LEGAL OR OTHER EXPENSES
REASONABLY INCURRED BY SUCH INDEMNIFIED PARTY IN CONNECTION WITH INVESTIGATING
OR DEFENDING ANY SUCH ACTION OR CLAIM.
NOTWITHSTANDING THE PROVISIONS OF THIS
SUBSECTION (IV), THE INVESTOR SHALL NOT BE REQUIRED TO INDEMNIFY AND CONTRIBUTE
AN AGGREGATE AMOUNT IN EXCESS OF THE AMOUNT BY WHICH THE NET AMOUNT RECEIVED
D-14
BY THE INVESTOR FROM THE SALE OF THE SHARES TO WHICH SUCH LOSS RELATES EXCEEDS
THE AMOUNT OF ANY DAMAGES WHICH THE INVESTOR HAS OTHERWISE BEEN REQUIRED TO PAY
BY REASON OF SUCH UNTRUE STATEMENT.
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 INVESTORS' OBLIGATIONS IN THIS SUBSECTION TO
CONTRIBUTE ARE SEVERAL IN PROPORTION TO THEIR SALES OF SHARES TO WHICH SUCH LOSS
RELATES AND NOT JOINT.
(V)
THE PARTIES TO THIS AGREEMENT HEREBY
ACKNOWLEDGE THAT THEY ARE SOPHISTICATED BUSINESS PERSONS WHO WERE REPRESENTED BY
COUNSEL DURING THE NEGOTIATIONS REGARDING THE PROVISIONS HEREOF INCLUDING,
WITHOUT LIMITATION, THE PROVISIONS OF THIS SECTION 6.3, AND ARE FULLY INFORMED
REGARDING SAID PROVISIONS.
THEY FURTHER ACKNOWLEDGE THAT THE PROVISIONS OF THIS
SECTION 6.3 FAIRLY ALLOCATE THE RISKS IN LIGHT OF THE ABILITY OF THE PARTIES TO
INVESTIGATE THE COMPANY AND ITS BUSINESS IN ORDER TO ASSURE THAT ADEQUATE
DISCLOSURE IS MADE IN THE REGISTRATION STATEMENT AS REQUIRED BY THE SECURITIES
ACT AND THE EXCHANGE ACT.
6.4
TERMINATION OF