TO ASSUME SUCH LEGAL DEFENSES AND OTHERWISE TO
PARTICIPATE IN THE DEFENSE OF SUCH ACTION, WITH THE REASONABLE EXPENSES AND FEES
OF SUCH SEPARATE COUNSEL AND OTHER EXPENSES RELATED TO SUCH PARTICIPATION TO BE
REIMBURSED BY THE INDEMNIFYING PARTY AS INCURRED.
(D)
IN ORDER TO PROVIDE FOR JUST AND EQUITABLE CONTRIBUTION IN THE
EVENT OF JOINT LIABILITY UNDER THE 1933 ACT IN ANY CASE IN WHICH EITHER (I) A
PURCHASER, OR ANY CONTROLLING PERSON OF A PURCHASER, MAKES A CLAIM FOR
INDEMNIFICATION PURSUANT TO THIS SECTION 9.6 BUT IT IS JUDICIALLY DETERMINED (BY
THE ENTRY OF A FINAL JUDGMENT OR DECREE BY A COURT OF COMPETENT JURISDICTION AND
THE EXPIRATION OF TIME TO APPEAL OR THE DENIAL OF THE LAST RIGHT OF APPEAL) THAT
SUCH INDEMNIFICATION MAY NOT BE ENFORCED IN SUCH CASE NOTWITHSTANDING THE FACT
THAT THIS SECTION 9.6 PROVIDES FOR INDEMNIFICATION IN SUCH CASE, OR (II)
CONTRIBUTION UNDER THE 1933 ACT MAY BE REQUIRED ON THE PART OF THE PURCHASER OR
CONTROLLING PERSON OF THE PURCHASER IN CIRCUMSTANCES FOR WHICH INDEMNIFICATION
IS NOT PROVIDED UNDER THIS SECTION 9.6; THEN, AND IN EACH SUCH CASE, THE COMPANY
AND THE PURCHASERS WILL CONTRIBUTE TO THE AGGREGATE LOSSES, CLAIMS, DAMAGES OR
LIABILITIES TO WHICH THEY MAY BE SUBJECT (AFTER CONTRIBUTION FROM OTHERS) IN
SUCH PROPORTION AS IS APPROPRIATE TO REFLECT (I) THE RELATIVE FAULTS OF THE
COMPANY AND THE PURCHASERS IN CONNECTION WITH THE STATEMENTS OR OMISSIONS OR
INACCURACIES IN THE REPRESENTATIONS AND WARRANTIES IN THE REGISTRATION STATEMENT
THAT RESULTED IN SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR EXPENSES, AS WELL
AS ANY OTHER RELEVANT EQUITABLE CONSIDERATIONS, OR (II) IF THE ALLOCATION
PROVIDED BY CLAUSE (I) ABOVE IS NOT PERMITTED BY APPLICABLE LAW, IN SUCH
PROPORTION AS IS APPROPRIATE TO REFLECT NOT ONLY THE RELATIVE FAULTS REFERRED TO
IN CLAUSE (I) ABOVE BUT ALSO THE RELATIVE BENEFITS RECEIVED BY THE COMPANY AND
THE PURCHASERS FROM THE SALE OF THE SECURITIES.
THE RESPECTIVE RELATIVE
BENEFITS RECEIVED BY THE COMPANY AND THE SELLER ON THE ONE HAND AND EACH
PURCHASER ON THE OTHER SHALL BE DEEMED TO BE IN THE SAME PROPORTION AS THE
AMOUNT TO WHICH THE CONSIDERATION PAID BY SUCH PURCHASER TO THE COMPANY PURSUANT
TO THIS AGREEMENT FOR THE SECURITIES PURCHASED BY SUCH PURCHASER THAT WERE SOLD
PURSUANT TO THE REGISTRATION STATEMENT BEARS TO THE DIFFERENCE BETWEEN THE
AMOUNT SUCH PURCHASER PAID FOR THE SECURITIES THAT WERE SOLD PURSUANT TO THE
REGISTRATION STATEMENT AND THE AMOUNT RECEIVED BY SUCH PURCHASER FROM SUCH
SALE.
THE RELATIVE FAULT OF THE COMPANY AND EACH PURCHASER SHALL BE DETERMINED
BY REFERENCE TO, AMONG
17
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 COMPANY OR SUCH PURCHASER AND THE PARTIES' RELATIVE
INTENT, KNOWLEDGE, ACCESS TO INFORMATION AND OPPORTUNITY TO CORRECT OR PREVENT
SUCH STATEMENT OR OMISSION, PROVIDED, HOWEVER, THAT, IN ANY SUCH CASE, NO PERSON
OR ENTITY GUILTY OF FRAUDULENT MISREPRESENTATION (WITHIN THE