EXHIBIT 10.1
COMMON STOCK PURCHASE AGREEMENT
This COMMON STOCK PURCHASE AGREEMENT (this "AGREEMENT") is dated as of
May 23, 2003 by and between Coeur d'Xxxxx Xxxxx Corporation, a Idaho corporation
(the "COMPANY"), and SF Capital Partners, Ltd., a British Virgin Islands
corporation (the "PURCHASER").
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Certain Definitions.
(a) "Business Day" shall mean any day (other than a Saturday
or Sunday) on which banks are generally open in the State of New York for
ordinary business.
(b) "Company Registration Statement" means the Registration
Statement, including the Prospectus, amendments and supplements to the
Registration Statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto, and all material and exhibits incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
(c) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
(d) "Material Adverse Effect" shall mean any effect on the
business, operations, properties or financial condition of the Company that is
material and adverse to the Company.
(e) "Person" means any court or other federal, state, local or
other governmental authority or other individual or corporation, partnership,
trust, incorporated or unincorporated association, joint venture, limited
liability company, joint stock company, government (or an agency or subdivision
thereof) or other entity of any kind.
(f) "Principal Market" shall mean initially the New York Stock
Exchange, and shall include the Nasdaq National Market, the Nasdaq SmallCap
Market or the American Stock Exchange if the Company becomes listed and trades
on any such market or exchange after the date hereof.
(g) "Prospectus" shall mean the base prospectus contained in
the Registration Statement and each prospectus supplement relating to the Common
Stock to be purchased pursuant to this Agreement filed pursuant to Rule 424(b)
under the Securities Act and
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all other amendments and supplements to the Prospectus, including post-effective
amendments, and all material or exhibits incorporated by reference or deemed to
be incorporated by reference in the Prospectus.
(h) "Purchase Price" shall be $9,999,999.63.
(i) "Registration Statement" shall mean the registration
statement on Form S-3 under the Securities Act filed with the SEC, File No.
333-101434, registering for sale pursuant to Rule 415 promulgated under the
Securities Act, among other things, securities of the Company in an amount not
to exceed $125,000,000, to be sold by the Company, including the filings with
the SEC pursuant to the Exchange Act.
(j) "SEC" shall mean the United States Securities and Exchange
Commission.
(k) "SEC Documents" shall mean all Exchange Act reports
incorporated by reference in the Registration Statement.
(l) "Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
ARTICLE II
PURCHASE AND SALE OF COMMON STOCK
Section 2.1. Purchase and Sale of Stock. Subject to the terms and
conditions of this Agreement, on the date hereof the Company will issue and sell
to the Purchaser, and the Purchaser shall purchase from the Company, Eight
Million One Hundred Thirty Thousand and Eighty One (8,130,081) shares (the
"INITIAL SHARES") of the Company's Common Stock, $1.00 par value per share (the
"COMMON STOCK"), for the Purchase Price.
Section 2.2. Closing. Upon execution hereof by Purchaser, (i) the
Purchaser shall deliver to the Company the Purchase Price by wire transfer of
immediately available funds in accordance with the Company's written wire
instructions, and (ii) the Company shall: (A) cause the Initial Shares to be
electronically delivered to The Depository Trust Company on the Purchaser's
behalf, registered in the name of the Purchaser as set forth on the signature
page hereto and (B) file with the SEC a prospectus supplement to the Company
Registration Statement, in agreed form, in order to evidence and disclose the
offer and sale of the Initial Shares issued hereunder and the offer and sale, if
any, of the Additional Shares.
Section 2.3. Additional Shares. On the basis of the representations and
warranties in this Agreement, and subject to its terms and conditions, the
Company agrees to sell to the Purchaser up to 1,219,512 additional shares of the
Common Stock (the "ADDITIONAL SHARES" and together with the Initial Shares, the
"Shares") at a purchase price of $1.23 per each Additional Share (subject to
equitable adjustment for stock splits, recombinations and similar
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events, the "ADDITIONAL PURCHASE PRICE PER SHARE"), and the Purchaser shall have
a one-time right (but not the obligation) to purchase any or all of the
Additional Shares. The Purchaser shall notify the Company in writing not later
than 30 days after the date of this Agreement if it elects to purchase any
Additional Shares (the "ELECTION NOTICE"). On the 3rd Business Day following the
Company's receipt of the Election Notice (the "ADDITIONAL CLOSING DATE"), (i)
the Purchaser shall deliver to the Company the aggregate gross proceeds for the
Additional Shares to be issued and sold to Purchaser by wire transfer of
immediately available funds in accordance with the Company's written wire
instructions, and (ii) the Company shall cause the Additional Shares to be
issued and sold to Purchaser to be electronically delivered to The Depository
Trust Company on the Purchaser's behalf, registered in the name of the Purchaser
as set forth on the signature page hereto. The representations and warranties of
the Company contained in this Agreement shall be true and correct as of the
Additional Closing Date, as though made on and as of such date (other than
representations and warranties which relate to a specific date (which shall not
include representations and warranties relating to the "date hereof") which
representations and warranties shall be true as of such specific date). The
Purchaser's option to purchase Additional Shares shall expire at 5:00 p.m. New
York City time on the 30th day after the date of this Agreement if the Company
does not receive an Election Notice prior to such time.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 3.1. Representations and Warranties of the Company. The Company
hereby makes the following representations and warranties to the Purchaser:
(a) Organization, Good Standing and Power. The Company is a
corporation duly incorporated validly existing and in good standing under the
laws of the State of Idaho and has all requisite corporate authority to own,
lease and operate its properties and assets and to carry on its business as now
being conducted. The Company is duly qualified to do business and is in good
standing as a foreign corporation in every jurisdiction in which the nature of
the business conducted or property owned by it makes such qualification
necessary, other than those in which the failure so to qualify would not have a
Material Adverse Effect.
(b) Authorization, Enforceability. (i) The Company has the
requisite corporate power and corporate authority to enter into and perform its
obligations under this Agreement and to issue the Shares, (ii) the execution,
issuance and delivery of this Agreement by the Company and the consummation by
it of the transactions contemplated hereby have been duly authorized by all
necessary corporate action and no further consent or authorization of the
Company or its Board of Directors or stockholders is required, and (iii) this
Agreement has been duly executed and delivered by the Company and constitutes
the valid and binding obligation of the Company enforceable against the Company
in accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation,
conservatorship, receivership or similar laws relating to, or affecting
generally the
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enforcement of, creditors' rights and remedies or by other equitable principles
of general application.
(c) Issuance of Shares. The Shares to be issued under this
Agreement have been duly authorized by all necessary corporate action and, when
paid for and issued in accordance with the terms hereof, the Shares will be
validly issued and outstanding, fully paid and non-assessable, and the Purchaser
shall be entitled to all rights accorded to a holder of Common Stock.
(d) No Conflicts. The execution, delivery and performance of
this Agreement by the Company and the consummation by the Company of the
transactions contemplated herein do not (i) violate any provision of the
Company's certificate of incorporation or bylaws as in effect on the date
hereof, (ii) conflict with, or constitute a default (or an event which with
notice or lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of, or any
liens under, any agreement, indenture, note or bond to which the Company is a
party, or (iii) result in a violation of any federal, state or local statute,
rule, regulation, order, judgment or decree (including any federal or state
securities laws and regulations) applicable to the Company or by which any
property or asset of the Company is bound or affected, except, in all cases as
set forth in clauses (ii)-(iii) above, for such conflicts, defaults,
termination, amendments, accelerations, cancellations, liens and violations
which would not, individually or in the aggregate, have a Material Adverse
Effect. There are no notices to or approvals or consents required to be made by
the Company of the Principal Market, the SEC or any other Person that have not
been made and obtained (and any so obtained are in full force and effect).
(e) SEC Documents. The Common Stock is registered pursuant to
Section 12(b) or Section 12(g) of the Exchange Act, and, except as disclosed in
the SEC Documents or as would not have a Material Adverse Effect, the Company
has timely filed all reports, schedules, forms, statements and other documents
required to be filed by it with the SEC pursuant to the reporting requirements
of the Exchange Act at least since December 31, 2001. As of their respective
dates, the SEC Documents complied in all material respects with the requirements
of the Securities Act and the Exchange Act and the rules and regulations of the
SEC promulgated thereunder, and none of the SEC Documents, when filed, contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The financial statements of the Company included in the SEC
Documents comply in all material respects with applicable accounting
requirements and the rules and regulations of the SEC with respect thereto as in
effect at the time of filing. Such financial statements have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis during the periods involved, except as may be otherwise specified in such
financial statements or the notes thereto, and fairly present in all material
respects the financial position of the Company and its consolidated subsidiaries
as of and for the dates thereof and the results of operations and cash flows for
the periods then ended, subject, in the case of unaudited statements, to normal
year-end audit adjustments.
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(f) Company Registration Statement. The Company Registration
Statement is effective and the Company has not received notice that the SEC has
issued or intends to issue a stop order with respect to the Company Registration
Statement or that the SEC otherwise has suspended or withdrawn the effectiveness
of the Company Registration Statement, either temporarily or permanently, or
intends or has threatened in writing to do so. The Company Registration
Statement, at the time it was first declared effective, on the date of this
Agreement, and on the Additional Closing Date (if any), did not, does not, and
will not contain any untrue statement of material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. The Company Registration Statement complies and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the SEC thereunder.
Notwithstanding the foregoing, the Company makes no representations or
warranties as to the information contained in or omitted from the Registration
Statement or the Prospectus in reliance upon and in conformity with any
information furnished in writing to the Company by the Purchaser specifically
for inclusion in the Registration Statement or the Prospectus. The Shares are
registered under the Securities Act by the Registration Statement.
(g) Certain Fees. No fees or commissions (other than legal
fees and expenses) will be payable by the Company to any broker, financial
advisor or consultant, finder, placement agent, investment banker, bank or other
Person with respect to the transactions contemplated by this Agreement. The
Purchaser will have no obligation with respect to any fees incurred by the
Company or any other Person or with respect to any claims made by or on behalf
of other Persons for fees of a type contemplated in this Section that may be due
in connection with the transactions contemplated by this Agreement. The Company
will indemnify and hold harmless the Purchaser, its employees, officers,
directors, agents, partners, and affiliates, from and against all claims,
losses, damages, costs (including the costs of preparation and reasonable
attorney's fees) and expenses suffered in respect of any such claimed or
existing fees incurred by the Company or any other Person, as such fees and
expenses are incurred.
(h) Disclosure. Neither the Company nor any other Person
acting on its behalf has provided the Purchaser or its agents or counsel with
any information that constitutes or may, in the Company's opinion, constitute
material non-public information.
Section 3.2. Covenants of the Company. The Company hereby covenants and
agrees that, without the prior written consent of the Purchaser, it will not,
during the period commencing on the date hereof and ending 90 days after the
date hereof, (1) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend or otherwise transfer or dispose of, directly
or indirectly, any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or (2) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of Common Stock, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of Common
Stock or such other securities, in cash or otherwise. The foregoing sentence
shall not apply to (a) the sale of the Shares or any Additional Shares to the
Purchaser pursuant to this
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Agreement, (b) the issuance by the Company of shares of Common Stock upon the
exercise of an employee stock option or pursuant to an employee stock purchase
program, (c) the award or grant of employee stock options, (d) the issuance by
the Company of shares of Common Stock upon the exercise or conversion of any
option, warrant, convertible security or instrument or other agreement
outstanding on the date hereof, or (e) the issuance or conversion by the Company
of shares of Common Stock in connection with any strategic merger, acquisition,
partnership or joint venture.
Section 3.3. Representations and Warranties of the Purchaser. The
Purchaser hereby makes the following representations and warranties to the
Company:
(a) Organization and Standing of the Purchaser. The Purchaser
is a corporation duly organized, validly existing and in good standing under the
laws of the British Virgin Islands.
(b) Authorization and Power. The Purchaser has the requisite
corporate power and corporate authority to enter into and perform this Agreement
and to purchase the Shares being sold to it hereunder. This Agreement has been
duly executed and delivered by the Purchaser and constitutes the valid and
binding obligation of the Purchaser enforceable against the Purchaser in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation,
conservatorship, receivership or similar laws relating to, or affecting
generally the enforcement of, creditors' rights and remedies or by other
equitable principles of general application.
(c) No Conflicts. The execution, delivery and performance of
this Agreement and the consummation by the Purchaser of the transactions
contemplated hereby or relating hereto do not and will not (i) result in a
violation of Purchaser's charter documents or bylaws or (ii) conflict with, or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of any agreement, indenture or
instrument to which the Purchaser is a party, or result in a violation of any
law, rule, or regulation, or any order, judgment or decree of any court or
governmental agency applicable to the Purchaser or its properties (except for
such conflicts, defaults and violations as could not, individually or in the
aggregate, have a material adverse effect on the business, operations,
properties or financial condition of the Purchaser). The Purchaser is not
required to obtain any consent, authorization or order of, or make any filing or
registration with, any court or governmental agency in order for it to execute,
deliver or perform any of its obligations under this Agreement or to purchase
the Shares in accordance with the terms hereof.
(d) Information. The Purchaser and its advisors, if any, have
been furnished with all materials relating to the business, finances and
operations of the Company and materials relating to the offer and sale of the
Shares which have been requested by the Purchaser and the Purchaser and its
advisors, if any, have been afforded the opportunity to ask questions of the
Company. The Purchaser understands that its investment in the Shares involves a
high degree of risk. The Purchaser has sought such accounting, legal and tax
advice as it has considered necessary to make an informed decision with respect
to its acquisition of the Shares.
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Furthermore, the Purchaser hereby acknowledges receipt of the Prospectus, a copy
of which is attached hereto as Exhibit A.
(e) No Governmental Review. The Purchaser understands that no
United States federal or state agency or any other government or governmental
agency has passed on or made any recommendation or endorsement of the Shares or
the fairness or suitability of the investment in the Shares nor have such
authorities passed upon or endorsed the merits of the offering of the Shares.
Section 3.4. Covenants of the Purchaser. The Purchaser covenants with
the Company as follows: The Purchaser's trading and distribution activities with
respect to the Shares will be in compliance with all applicable state and
federal securities laws, rules and regulations (including, without limitation,
Regulation M) and the rules and regulations of the New York Stock Exchange.
Neither the Purchaser nor any of its affiliates (as that term is defined in Rule
405 promulgated under the Securities Act) has taken, nor will any of them take,
directly or indirectly, any action designed to cause or that would result in, or
which constitutes or that might reasonably be expected to constitute, the
stabilization or manipulation of the price of the Common Stock to facilitate the
sale or resale of the Common Stock.
Section 3.5. Certain Disclosures. The Company will not and will use its
best efforts to cause each of its affiliates and other Persons acting on behalf
of the Company not to divulge to the Purchaser any information that it believes
to be material non-public information unless the Purchaser has agreed in writing
to receive such information prior to such divulgence. Neither the Company nor
the Purchaser will issue any press release or make any other public announcement
relating to this Agreement unless the form thereof is mutually agreed to by the
Company and the Purchaser, or if the Company is advised by its counsel that such
press release or public announcement is required by law.
Section 3.6. Indemnification. The Company will indemnify the Purchaser
as provided in Exhibit B attached hereto against liability with respect to the
Company Registration Statement (including, without limitation, the prospectus
supplement) relating to the Shares sold by the Company to the Purchaser
hereunder. For purposes of said Exhibit B, capitalized terms used therein
without definition shall have the same meanings therein as are ascribed to said
terms in this Agreement.
ARTICLE IV
MISCELLANEOUS
Section 4.1. Specific Enforcement. The Company and the Purchaser
acknowledge and agree that irreparable damage would occur in the event that any
of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent or cure
breaches of the provisions of this Agreement and to enforce
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specifically the terms and provisions hereof or thereof, this being in addition
to any other remedy to which any of them may be entitled by law or equity.
Section 4.2. Entire Agreement; Amendment. This Agreement contains the
entire understanding of the parties with respect to the matters covered hereby
and, except as specifically set forth herein, neither the Company nor the
Purchaser makes any representations, warranty, covenant or undertaking with
respect to such matters. No provision of this Agreement may be waived or amended
other than by a written instrument signed by the party against whom enforcement
of any such amendment or waiver is sought.
Section 4.3. Notices. Any notice, demand, request, waiver or other
communication required or permitted to be given hereunder shall be in writing
and shall be effective (a) upon hand delivery or facsimile at the address or
number designated below (if delivered on a business day during normal business
hours where such notice is to be received), or the first business day following
such delivery (if delivered other than on a business day during normal business
hours where such notice is to be received) or (b) on the second business day
following the date of mailing by express courier service, fully prepaid,
addressed to such address, or upon actual receipt of such mailing, whichever
shall first occur. The addresses for such communications shall be:
If to the Company: Coeur d'Xxxxx Xxxxx Corporation
400 Coeur d'Xxxxx Xxxxx Building
000 Xxxxx Xxxxxx
Xxxxx x'Xxxxx, Xxxxx 00000
Attn: Chief Financial Officer
Facsimile: (000) 000-0000
With copies to: Xxxxxx Xxxx & Xxxxxxxx LLP
(which shall not 0000 Xxxxxxx Xxxx Xxxx
constitute notice): Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
If to the Purchaser: SF Capital Partners, Ltd.
c/o Staro Asset Management, LLC
0000 Xxxxx Xxxx Xxxxx
Xx. Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
With copies to: Xxxxx Xxxx LLP
(which shall not 1290 Avenue of the Americas
constitute notice): Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000 & (000) 000-0000
Any party hereto may from time to time change its address for notices
by giving written notice of such changed address to the other party hereto in
accordance herewith.
Section 4.4. Waivers. No waiver by either party of any default with
respect to any provision, condition or requirement of this Agreement shall be
deemed to be a continuing waiver in the future or a waiver of any other
provisions, condition or requirement hereof, nor shall any delay or omission of
any party to exercise any right hereunder in any manner impair the exercise of
any such right accruing to it thereafter.
Section 4.5. Headings. The article, section and subsection headings in
this Agreement are for convenience only and shall not constitute a part of this
Agreement for any other purpose and shall not be deemed to limit or affect any
of the provisions hereof.
Section 4.6. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties and their successors and assigns.
The parties hereto may not amend this Agreement or any rights or obligations
hereunder without the prior written consent of the Company and the Purchaser.
Section 4.7. No Third Party Beneficiaries. This Agreement is intended
for the benefit of the parties hereto and their respective permitted successors
and assigns and is not for the benefit of, nor may any provision hereof be
enforced by, any other person.
Section 4.8. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York, without
giving effect to the choice of law provisions. The Company and the Purchaser
agree to submit itself to the in personam jurisdiction of the state and federal
courts situated within the Southern District of the State of New York with
regard to any controversy arising out of or relating to this Agreement.
Section 4.9. Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument and shall become effective when counterparts have been signed by each
party and delivered to the other parties hereto, it being understood that all
parties need not sign the same counterpart. Execution may be made by delivery by
facsimile.
Section 4.10. Publicity. Neither the Company nor the Purchaser shall
issue any press release or otherwise make any public statement or announcement
with respect to this Agreement or the transactions contemplated hereby or the
existence of this Agreement unless in strict compliance with Rule 134 under the
Securities Act.
Section 4.11. Severability. The provisions of this Agreement are
severable and, in the event that any court or officials of any regulatory agency
of competent jurisdiction shall
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determine that any one or more of the provisions or part of the provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision or part of a provision of
this Agreement and this Agreement shall be reformed and construed as if such
invalid or illegal or unenforceable provision, or part of such provision, had
never been contained herein, so that such provisions would be valid, legal and
enforceable to the maximum extent possible, so long as such construction does
not materially adversely effect the economic rights of either party hereto.
Section 4.12. Further Assurances. From and after the date of this
Agreement, upon the request of the Purchaser or the Company, each of the Company
and the Purchaser shall execute and deliver such instruments, documents and
other writings as may be reasonably necessary or desirable to confirm and carry
out and to effectuate fully the intent and purposes of this Agreement.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
COEUR D'XXXXX XXXXX CORPORATION
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive V.P. & Chief
Financial Officer
SF CAPITAL PARTNERS, LTD.
By: /s/ Xxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Authorized Signatory
EXHIBIT B
TERMS OF INDEMNIFICATION
(a) Indemnification by the Company. The Company will indemnify and hold
harmless the Purchaser and the officers, directors, employees and agents of the
Purchaser, and each Person, if any, who controls the Purchaser within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Securities
Exchange Act, as amended (the "Exchange Act"), from and against any losses,
claims, damages, liabilities, costs and expenses (including, without limitation,
reasonable costs of defense and investigation and all reasonable attorneys' fees
and expenses) to which the Purchaser and the officers, directors, employees and
agents of the Purchaser, and each Person, if any, who controls the Purchaser may
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages, liabilities and expenses (or actions in respect thereof) arise
out of or are based upon: (i) any untrue statement or alleged untrue statement
of a material fact contained, or incorporated by reference, in the Company
Registration Statement, or (ii) the omission or alleged omission to state in the
Company Registration Statement a material fact required to be stated therein or
necessary to make the statements therein not misleading (an "Indemnifiable
Matter"). The Company will reimburse the Purchaser and the officers, directors,
employees and agents of the Purchaser and each such controlling Person promptly
upon demand for any legal or other costs or expenses reasonably incurred by the
Purchaser and the officers, directors, employees and agents of the Purchaser or
the controlling Person in investigating, defending against, or preparing to
defend against any claim relating to an Indemnifiable Matter, except that the
Company will not be liable to the extent such claim, suit or proceeding which
results in a loss, claim, damage, liability or expense arises out of, or is
based upon, an untrue statement, alleged untrue statement, omission or alleged
omission, included in the Company Registration Statement in reliance upon, and
in conformity with, written information furnished by the Purchaser to the
Company for inclusion in the Company Registration Statement.
(b) Contribution. If for any reason the indemnification provided for in
this Agreement is not available to, or is not sufficient to hold harmless, an
indemnified party in respect of any loss, claim, damage, liability, cost or
expense referred to in Paragraph (a), each indemnifying party will, in lieu of
indemnifying the indemnified party, contribute to the amount paid or payable by
the indemnified party, contribute to the amount paid or payable by the
indemnified party as a result of the loss, claim, damage, liability, cost or
expense: (i) in the proportion which is appropriate to reflect the relative
benefits received by the indemnifying party, on the one hand, and by the
indemnified party, on the other hand, from the sale of stock which is the
subject of the claim, action, suit or proceeding which resulted in the loss,
claim, liability, cost or expense or (ii) if that allocation is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits of the sale of stock, but also the relative fault of the
indemnifying party and the indemnified party with respect to the statements or
omissions which are the subject of the claim, action, suit or proceeding that
resulted in the loss, claim, damage, liability, cost or expense as well as any
other relevant equitable considerations.
