THE COMPANY ON THE ONE HAND AND THE INITIAL PURCHASERS ON THE OTHER
SHALL BE DEEMED TO BE IN THE SAME RESPECTIVE PROPORTIONS AS THE 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
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 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 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
18
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
REASONABLY 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.
8.
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) TRADING OF ANY SECURITIES