DETERMINED BY REFERENCE TO, AMONG OTHER THINGS,
WHETHER THE UNTRUE OR ALLEGED UNTRUE STATEMENT OF A MATERIAL FACT OR THE
OMISSION TO STATE A MATERIAL FACT RELATES TO INFORMATION SUPPLIED BY THE
INDEMNIFYING PARTY OR BY THE INDEMNIFIED PARTY AND THE PARTIES' RELATIVE INTENT,
KNOWLEDGE, ACCESS TO INFORMATION AND OPPORTUNITY TO CORRECT OR PREVENT SUCH
STATEMENT OR OMISSION.
THE PARTIES HERETO AGREE THAT IT WOULD NOT BE JUST OR
EQUITABLE IF THE CONTRIBUTION PURSUANT TO THIS SECTION 6(D) WERE TO BE
DETERMINED BY PRO RATA ALLOCATION OR BY ANY OTHER METHOD OF ALLOCATION THAT DOES
NOT TAKE INTO ACCOUNT SUCH EQUITABLE CONSIDERATIONS.
THE AMOUNT PAID OR PAYABLE
BY AN INDEMNIFIED PARTY AS A RESULT OF THE LOSSES, CLAIMS, DAMAGES, LIABILITIES
OR EXPENSES REFERRED TO HEREIN SHALL BE DEEMED TO INCLUDE ANY LEGAL OR OTHER
EXPENSES REASONABLY INCURRED BY SUCH INDEMNIFIED PARTY IN CONNECTION WITH
INVESTIGATING OR DEFENDING AGAINST ANY ACTION OR CLAIM WHICH IS THE SUBJECT
HEREOF.
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 IS NOT GUILTY OF SUCH FRAUDULENT MISREPRESENTATION.
(E)
THE INDEMNIFICATION AND CONTRIBUTION PROVIDED FOR UNDER THIS AGREEMENT
SHALL REMAIN IN FULL FORCE AND EFFECT REGARDLESS OF ANY INVESTIGATION MADE BY OR
ON BEHALF OF THE INDEMNIFIED PARTY OR ANY OFFICER, DIRECTOR OR CONTROLLING
PERSON OF SUCH INDEMNIFIED PARTY AND SHALL SURVIVE THE TRANSFER OF SECURITIES.
(F)
NO INDEMNIFYING PARTY SHALL, EXCEPT WITH THE CONSENT OF THE INDEMNIFIED
PARTY, CONSENT TO THE ENTRY OF ANY JUDGMENT OR ENTER INTO ANY SETTLEMENT THAT
DOES NOT INCLUDE AS AN UNCONDITIONAL TERM THEREOF GIVING BY THE CLAIMANT OR
PLAINTIFF TO SUCH INDEMNIFIED PARTY OF A RELEASE FROM ALL LIABILITY IN RESPECT
TO SUCH CLAIM OR LITIGATION.
7.
PARTICIPATION IN UNDERWRITTEN REGISTRATIONS; SHELF REGISTRATIONS.
(A)
PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
(I)
NO PERSON MAY PARTICIPATE IN ANY REGISTRATION HEREUNDER WHICH IS
UNDERWRITTEN UNLESS SUCH PERSON (I) AGREES TO SELL SUCH PERSON'S SECURITIES ON
THE BASIS PROVIDED IN ANY UNDERWRITING ARRANGEMENTS APPROVED BY THE PERSON OR
PERSONS ENTITLED HEREUNDER TO APPROVE SUCH ARRANGEMENTS (INCLUDING PURSUANT TO
ANY OVER-ALLOTMENT OR "GREEN SHOE" OPTION REQUESTED BY THE UNDERWRITERS);
PROVIDED THAT NO HOLDER OF REGISTRABLE SECURITIES SHALL BE REQUIRED TO SELL MORE
THAN THE NUMBER OF REGISTRABLE SECURITIES SUCH HOLDER HAS REQUESTED TO INCLUDE
AND (II) COMPLETES AND EXECUTES ALL QUESTIONNAIRES, POWERS OF ATTORNEY, CUSTODY
AGREEMENTS, INDEMNITIES, UNDERWRITING AGREEMENTS AND OTHER DOCUMENTS REQUIRED
UNDER THE TERMS OF SUCH UNDERWRITING ARRANGEMENTS; PROVIDED THAT IN NO EVENT
SHALL ANY HOLDER OF REGISTRABLE SECURITIES BE REQUIRED TO INDEMNIFY ANY
UNDERWRITER OR OTHER PERSON IN ANY MANNER OTHER THAN THAT WHICH IS SPECIFICALLY
SET FORTH IN SECTION 6(B) WITH RESPECT TO ITS INDEMNIFICATION OBLIGATIONS TO THE
COMPANY AND OTHER HOLDERS OF REGISTRABLE SECURITIES.
EACH HOLDER OF REGISTRABLE
SECURITIES AGREES TO EXECUTE AND DELIVER SUCH OTHER AGREEMENTS AS MAY BE
REASONABLY REQUESTED BY THE COMPANY AND THE LEAD
13
MANAGING UNDERWRITER(S) THAT ARE CONSISTENT WITH SUCH HOLDER'S OBLIGATIONS UNDER
SECTION 3 OR