required to contribute, in the aggregate, any amount in excess of the amount by
which the proceeds actually received by such Investor from the sale of the
Registrable Securities subject to the Proceeding exceed the amount of any
damages that such Investor has 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 6.4(d) are
in addition to any liability that the Indemnifying Parties may have to the
Indemnified Parties.
33
6.5
DISPOSITIONS.
EACH INVESTOR AGREES THAT IT WILL COMPLY WITH THE
PROSPECTUS DELIVERY REQUIREMENTS OF THE SECURITIES ACT AS APPLICABLE TO IT IN
CONNECTION WITH SALES OF REGISTRABLE SECURITIES PURSUANT TO THE REGISTRATION
STATEMENT AND SHALL SELL ITS REGISTRABLE SECURITIES IN ACCORDANCE WITH THE PLAN
OF DISTRIBUTION SET FORTH IN THE PROSPECTUS.
EACH INVESTOR FURTHER AGREES THAT,
UPON RECEIPT OF A NOTICE FROM THE COMPANY OF THE OCCURRENCE OF ANY EVENT OF THE
KIND DESCRIBED IN SECTIONS 6.2(C)(V), (VI) OR (VII), SUCH INVESTOR WILL
DISCONTINUE DISPOSITION OF SUCH REGISTRABLE SECURITIES UNDER THE REGISTRATION
STATEMENT UNTIL SUCH INVESTOR IS ADVISED IN WRITING BY THE COMPANY THAT THE USE
OF THE PROSPECTUS, OR AMENDED PROSPECTUS, AS APPLICABLE, MAY BE RESUMED.
THE
COMPANY MAY PROVIDE APPROPRIATE STOP ORDERS TO ENFORCE THE PROVISIONS OF THIS
PARAGRAPH.
6.6
NO PIGGYBACK ON REGISTRATIONS.
EXCEPT AS DESCRIBED IN SCHEDULE 6.6,
NEITHER THE COMPANY NOR ANY OF ITS SECURITY HOLDERS (OTHER THAN THE INVESTORS IN
SUCH CAPACITY PURSUANT HERETO AND THE EXCLUDED INVESTORS) MAY INCLUDE SECURITIES
OF THE COMPANY IN THE REGISTRATION STATEMENT OTHER THAN THE REGISTRABLE
SECURITIES.
6.7
PIGGY-BACK REGISTRATIONS.
IF AT ANY TIME DURING THE EFFECTIVENESS PERIOD
THERE IS NOT AN EFFECTIVE REGISTRATION STATEMENT COVERING ALL OF THE REGISTRABLE
SECURITIES AND THE COMPANY SHALL DETERMINE TO PREPARE AND FILE WITH THE SEC A
REGISTRATION STATEMENT RELATING TO AN OFFERING FOR ITS OWN ACCOUNT OR THE
ACCOUNT OF OTHERS UNDER THE SECURITIES ACT OF ANY OF ITS EQUITY SECURITIES,
OTHER THAN ON FORM S-4 OR FORM S-8 (EACH AS PROMULGATED UNDER THE SECURITIES
ACT) OR THEIR THEN EQUIVALENTS RELATING TO EQUITY SECURITIES TO BE ISSUED SOLELY
IN CONNECTION WITH ANY ACQUISITION OF ANY ENTITY OR BUSINESS OR EQUITY
SECURITIES ISSUABLE IN CONNECTION WITH STOCK OPTION OR OTHER EMPLOYEE BENEFIT
PLANS, THEN THE COMPANY SHALL SEND TO EACH INVESTOR NOT THEN ELIGIBLE TO SELL
ALL OF THEIR REGISTRABLE SECURITIES UNDER RULE 144 IN A THREE-MONTH PERIOD,
WRITTEN NOTICE OF SUCH DETERMINATION AND IF, WITHIN TEN DAYS AFTER RECEIPT OF
SUCH NOTICE, ANY SUCH INVESTOR SHALL SO REQUEST IN WRITING, THE COMPANY SHALL
INCLUDE IN SUCH REGISTRATION STATEMENT ALL OR ANY PART OF SUCH REGISTRABLE
SECURITIES SUCH INVESTOR REQUESTS TO BE REGISTERED.
NOTWITHSTANDING THE
FOREGOING, IN THE EVENT THAT, IN CONNECTION WITH ANY UNDERWRITTEN PUBLIC
OFFERING, THE