IN RELIANCE UPON
AND IN CONFORMITY WITH INFORMATION REGARDING SUCH INDEMNITEE OR ITS PLAN OF
DISTRIBUTION OR OWNERSHIP INTERESTS WHICH WAS FURNISHED IN WRITING TO THE
COMPANY BY SUCH INDEMNITEE FOR USE IN CONNECTION WITH SUCH REGISTRATION
STATEMENT, INCLUDING ANY SUCH PRELIMINARY PROSPECTUS OR FINAL PROSPECTUS
CONTAINED THEREIN OR ANY SUCH AMENDMENTS OR SUPPLEMENTS THERETO, OR (II) OFFERS
OR SALES EFFECTED BY OR ON BEHALF SUCH INDEMNITEE "BY MEANS OF" (AS DEFINED IN
RULE 159A) A "FREE WRITING PROSPECTUS" (AS DEFINED IN RULE 405) THAT WAS NOT
AUTHORIZED IN WRITING BY THE COMPANY.
49
(2)
IF THE INDEMNIFICATION PROVIDED FOR IN
SECTION 4.10(G)(1) IS UNAVAILABLE TO AN INDEMNITEE WITH RESPECT TO ANY LOSSES OR
IS INSUFFICIENT TO HOLD THE INDEMNITEE HARMLESS AS CONTEMPLATED THEREIN, THEN
THE COMPANY, IN LIEU OF INDEMNIFYING SUCH INDEMNITEE, SHALL CONTRIBUTE TO THE
AMOUNT PAID OR PAYABLE BY SUCH INDEMNITEE AS A RESULT OF SUCH LOSSES IN SUCH
PROPORTION AS IS APPROPRIATE TO REFLECT THE RELATIVE FAULT OF THE INDEMNITEE, ON
THE ONE HAND, AND THE COMPANY, ON THE OTHER HAND, IN CONNECTION WITH THE
STATEMENTS OR OMISSIONS WHICH RESULTED IN SUCH LOSSES AS WELL AS ANY OTHER
RELEVANT EQUITABLE CONSIDERATIONS.
THE RELATIVE FAULT OF THE COMPANY, ON THE
ONE HAND, AND OF THE INDEMNITEE, ON THE OTHER HAND, SHALL BE DETERMINED BY
REFERENCE TO, AMONG OTHER FACTORS, WHETHER THE UNTRUE STATEMENT OF A MATERIAL
FACT OR OMISSION TO STATE A MATERIAL FACT RELATES TO INFORMATION SUPPLIED BY THE
COMPANY OR BY THE INDEMNITEE AND THE PARTIES' RELATIVE INTENT, KNOWLEDGE, ACCESS
TO INFORMATION AND OPPORTUNITY TO CORRECT OR PREVENT SUCH STATEMENT OR OMISSION;
THE COMPANY AND EACH HOLDER AGREE THAT IT WOULD NOT BE JUST AND EQUITABLE IF
CONTRIBUTION PURSUANT TO THIS SECTION 4.10(G)(2) WERE DETERMINED BY PRO RATA
ALLOCATION OR BY ANY OTHER METHOD OF ALLOCATION THAT DOES NOT TAKE ACCOUNT OF
THE EQUITABLE CONSIDERATIONS REFERRED TO IN SECTION 4.10(G)(1).
NO INDEMNITEE
GUILTY OF FRAUDULENT MISREPRESENTATION (WITHIN THE MEANING OF SECTION 11(F) OF
THE SECURITIES ACT) SHALL BE ENTITLED TO CONTRIBUTION FROM THE COMPANY IF THE
COMPANY WAS NOT GUILTY OF SUCH FRAUDULENT MISREPRESENTATION.
(H)
ASSIGNMENT OF REGISTRATION RIGHTS.
THE
RIGHTS OF THE INVESTOR TO REGISTRATION OF REGISTRABLE SECURITIES PURSUANT TO
SECTION 4.10(A) MAY BE ASSIGNED BY THE INVESTOR TO A TRANSFEREE OR ASSIGNEE OF
REGISTRABLE SECURITIES TO WHICH (I) THERE IS TRANSFERRED TO SUCH TRANSFEREE NO
LESS THAN $1 MILLION IN REGISTRABLE SECURITIES AND (II) SUCH TRANSFER OR
ASSIGNMENT IS PERMITTED UNDER THE TERMS HEREOF; PROVIDED, HOWEVER, THAT THE
TRANSFEROR SHALL, WITHIN TEN DAYS AFTER SUCH TRANSFER, FURNISH TO THE COMPANY
WRITTEN NOTICE OF THE NAME AND ADDRESS OF SUCH TRANSFEREE OR ASSIGNEE AND THE
NUMBER AND TYPE OF REGISTRABLE SECURITIES THAT ARE BEING ASSIGNED.
(I)
HOLDBACK.
WITH RESPECT TO ANY
UNDERWRITTEN OFFERING OF REGISTRABLE SECURITIES BY THE INVESTOR OR OTHER HOLDERS
PURSUANT TO THIS SECTION 4.10, THE COMPANY AGREES NOT TO EFFECT (OTHER THAN
PURSUANT TO SUCH REGISTRATION OR PURSUANT TO A SPECIAL REGISTRATION) ANY PUBLIC
SALE OR DISTRIBUTION, OR TO FILE