NET PROCEEDS
(BEFORE DEDUCTING EXPENSES) RECEIVED BY THE COMPANY FROM THE SALE OF THE
SECURITIES AND THE TOTAL DISCOUNTS AND COMMISSIONS RECEIVED BY THE INITIAL
PURCHASERS IN CONNECTION THEREWITH, AS PROVIDED IN THIS AGREEMENT, BEAR TO THE
AGGREGATE OFFERING PRICE OF THE SECURITIES.
THE RELATIVE FAULT OF THE COMPANY
AND THE SUBSIDIARY GUARANTORS ON THE ONE HAND AND THE INITIAL PURCHASERS ON THE
OTHER 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 COMPANY
OR ANY SUBSIDIARY GUARANTOR OR BY THE INITIAL PURCHASERS AND THE PARTIES'
RELATIVE INTENT, KNOWLEDGE, ACCESS TO INFORMATION AND OPPORTUNITY TO CORRECT OR
PREVENT SUCH STATEMENT OR OMISSION.
(E)
LIMITATION ON LIABILITY.
THE COMPANY, THE SUBSIDIARY GUARANTORS
AND THE INITIAL PURCHASERS AGREE THAT IT WOULD NOT BE JUST AND EQUITABLE IF
CONTRIBUTION PURSUANT TO THIS SECTION 7 WERE DETERMINED BY PRO RATA ALLOCATION
(EVEN IF THE INITIAL PURCHASERS WERE TREATED AS ONE ENTITY FOR SUCH PURPOSE) OR
BY ANY OTHER METHOD OF ALLOCATION THAT DOES NOT TAKE ACCOUNT OF THE EQUITABLE
CONSIDERATIONS REFERRED TO IN PARAGRAPH (D) ABOVE.
THE AMOUNT PAID OR PAYABLE
BY AN INDEMNIFIED PERSON AS A RESULT OF THE LOSSES, CLAIMS, DAMAGES AND
LIABILITIES REFERRED TO IN PARAGRAPH (D) ABOVE SHALL BE DEEMED TO INCLUDE,
SUBJECT TO THE LIMITATIONS SET FORTH ABOVE, ANY LEGAL OR OTHER EXPENSES INCURRED
BY SUCH INDEMNIFIED PERSON IN CONNECTION WITH ANY SUCH ACTION OR CLAIM.
NOTWITHSTANDING THE PROVISIONS OF THIS SECTION 7, IN NO EVENT SHALL AN INITIAL
PURCHASER BE REQUIRED TO CONTRIBUTE ANY AMOUNT IN EXCESS OF THE AMOUNT BY WHICH
THE TOTAL DISCOUNTS AND COMMISSIONS RECEIVED BY SUCH INITIAL PURCHASER WITH
RESPECT TO THE OFFERING OF THE SECURITIES EXCEEDS THE AMOUNT OF ANY DAMAGES THAT
SUCH INITIAL PURCHASER 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 INITIAL PURCHASERS'
OBLIGATIONS TO CONTRIBUTE PURSUANT TO THIS SECTION 7 ARE SEVERAL IN PROPORTION
TO THEIR RESPECTIVE PURCHASE OBLIGATIONS HEREUNDER AND NOT JOINT.
(F)
NON-EXCLUSIVE REMEDIES.
THE REMEDIES PROVIDED FOR IN THIS
SECTION 7 ARE NOT EXCLUSIVE AND SHALL NOT LIMIT ANY RIGHTS OR REMEDIES THAT MAY
OTHERWISE BE AVAILABLE TO ANY INDEMNIFIED PERSON AT LAW OR IN EQUITY.
23
8.
Effectiveness of Agreement.
This Agreement shall become
effective upon
the execution and delivery hereof by the parties hereto.
9.
Termination.
This Agreement may be terminated in the absolute
discretion of the Representative, by notice to the Company, if after the
execution and delivery of this Agreement and on or prior to the Closing Date
(i) trading generally shall have been suspended or materially limited on the New
York Stock Exchange or the over-the-counter market; (ii)