SUCH PROPORTION AS IS APPROPRIATE
TO REFLECT THE RELATIVE FAULT OF THE COMPANY, ON THE ONE HAND, AND THE INVESTOR,
AS WELL AS ANY OTHER SELLING STOCKHOLDERS UNDER SUCH REGISTRATION STATEMENT, 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 OR OTHER SELLING STOCKHOLDER,
ON THE OTHER HAND, AND THE PARTIES' RELATIVE INTENT, KNOWLEDGE, ACCESS TO
INFORMATION AND OPPORTUNITY TO CORRECT OR PREVENT SUCH UNTRUE STATEMENT.
THE
COMPANY AND THE INVESTOR 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 INVESTOR AND OTHER SELLING STOCKHOLDERS 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 PERSON 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 PERSON 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 CONTRIBUTE ANY AMOUNT IN EXCESS OF THE AMOUNT BY WHICH THE AMOUNT
RECEIVED BY THE INVESTOR FROM THE SALE OF THE PURCHASED 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 INVESTOR'S OBLIGATIONS IN THIS
SUBSECTION TO
20
CONTRIBUTE SHALL BE IN PROPORTION TO ITS SALE OF PURCHASED SHARES TO WHICH SUCH
LOSS RELATES AND SHALL NOT BE JOINT WITH ANY OTHER SELLING STOCKHOLDERS.
(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 3.2(G), AND ARE FULLY INFORMED REGARDING SAID
PROVISIONS.
THEY FURTHER ACKNOWLEDGE THAT THE PROVISIONS OF THIS
SECTION 3.2(G) 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.
THE PARTIES ARE ADVISED THAT FEDERAL OR STATE PUBLIC
POLICY AS INTERPRETED BY THE COURTS IN CERTAIN JURISDICTIONS MAY BE CONTRARY TO
CERTAIN