TO
CONFLICT WITH THE INTERESTS OF THE INDEMNIFYING PARTY, THE INDEMNIFIED PARTY
SHALL HAVE THE RIGHT TO SELECT ONE SEPARATE COUNSEL AND 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 SECURITIES ACT IN ANY CASE IN WHICH EITHER
(I) THE PURCHASER, OR ANY OFFICER, DIRECTOR OR CONTROLLING PERSON OF THE
PURCHASER, MAKES A CLAIM FOR INDEMNIFICATION
6
PURSUANT TO THIS SECTION 5 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 5 PROVIDES FOR INDEMNIFICATION IN SUCH CASE, OR (II) CONTRIBUTION
UNDER THE SECURITIES ACT MAY BE REQUIRED ON THE PART OF THE PURCHASER OR SUCH
OFFICER, DIRECTOR OR CONTROLLING PERSON OF THE PURCHASER IN CIRCUMSTANCES FOR
WHICH INDEMNIFICATION IS PROVIDED UNDER THIS SECTION 5; THEN, AND IN EACH SUCH
CASE, THE COMPANY AND THE PURCHASER WILL CONTRIBUTE TO THE AGGREGATE LOSSES,
CLAIMS, DAMAGES OR LIABILITIES TO WHICH THEY MAY BE SUBJECT (AFTER CONTRIBUTION
FROM OTHERS) IN SUCH PROPORTION SO THAT THE PURCHASER IS RESPONSIBLE ONLY FOR
THE PORTION REPRESENTED BY THE PERCENTAGE THAT THE PUBLIC OFFERING PRICE OF ITS
SECURITIES OFFERED BY THE REGISTRATION STATEMENT BEARS TO THE PUBLIC OFFERING
PRICE OF ALL SECURITIES OFFERED BY SUCH REGISTRATION STATEMENT, PROVIDED,
HOWEVER, THAT, IN ANY SUCH CASE, (A) THE PURCHASER WILL NOT BE REQUIRED TO
CONTRIBUTE ANY AMOUNT IN EXCESS OF THE PUBLIC OFFERING PRICE OF ALL SUCH
SECURITIES OFFERED BY IT PURSUANT TO SUCH REGISTRATION STATEMENT; AND (B) NO
PERSON OR ENTITY GUILTY OF FRAUDULENT MISREPRESENTATION (WITHIN THE MEANING OF
SECTION 10(F) OF THE ACT) WILL BE ENTITLED TO CONTRIBUTION FROM ANY PERSON OR
ENTITY WHO WAS NOT GUILTY OF SUCH FRAUDULENT MISREPRESENTATION.
6.
REPRESENTATIONS AND WARRANTIES.
(A)
THE COMMON STOCK IS REGISTERED PURSUANT TO SECTION 12(B) OR
12(G) OF THE EXCHANGE ACT AND, EXCEPT WITH RESPECT TO CERTAIN MATTERS WHICH THE
COMPANY HAS DISCLOSED TO THE PURCHASER ON SCHEDULE 4.21 TO THE SECURITIES
PURCHASE AGREEMENT, THE COMPANY HAS TIMELY FILED ALL PROXY STATEMENTS, REPORTS,
SCHEDULES, FORMS, STATEMENTS AND OTHER DOCUMENTS REQUIRED TO BE FILED BY IT
UNDER THE EXCHANGE ACT.
THE COMPANY HAS FILED (I) ITS ANNUAL REPORT ON
FORM 10-K FOR ITS FISCAL YEAR ENDED [DECEMBER 31, 2004 AND (II) ITS QUARTERLY
REPORT ON FORM 10-QFOR THE FISCAL QUARTERS ENDED MARCH 31, 2005, JUNE 30, 2005
AND SEPTEMBER 30, 2005 (COLLECTIVELY, THE "SEC REPORTS").
EACH SEC REPORT WAS,
AT THE TIME OF ITS FILING, IN SUBSTANTIAL COMPLIANCE WITH THE REQUIREMENTS OF
ITS RESPECTIVE FORM AND NONE OF THE SEC REPORTS, NOR THE