effective as of December 1, 2001, between the Company and Prospector Partners Connecticut Fund, L.P., a Delaware limited partnership (the “ Prospector Options ”).

 

“ GAAP ” means generally accepted accounting principles as in effect from time to time in the United States applied on a consistent basis throughout the period involved.

 

“ Governmental Entity ” means any governmental or regulatory authority, agency, commission, body, corporation, court, tribunal or other governmental entity or authority of any kind or nature.

 

“ Guarantee ” means, with respect to any Person, all obligations of such Person which in any manner directly or indirectly guarantee or assure, or in effect guarantee or assure, the payment or performance of any Indebtedness, dividend or other obligations of any other Person (the “ guaranteed obligations ”), or assure or in effect assure the holder of the guaranteed obligations against loss in respect thereof, including any such obligations incurred through an agreement, contingent or otherwise: 23.1.1.1 to purchase the guaranteed obligations or any property constituting security therefor; 23.1.1.2 to advance or supply funds for the purchase or payment of the guaranteed obligations or to maintain a working capital or other balance sheet condition; or 23.1.1.3 to lease property or to purchase any debt or equity securities or other property or services.

 

“ Holder ” means any Person owning or having the right to acquire Registrable Securities or any assignee or transferee thereof in accordance with Section 0 hereof.

 

“ Identified Stockholder ” has the meaning set forth in the preamble to this Agreement.

 

“ Indebtedness ” of any Person means all obligations of such Person (i) for borrowed money, (ii) evidenced by notes, bonds, debentures or similar instruments, (iii) for the deferred purchase price of goods or services (other than trade payables or accruals incurred in the ordinary course of business), (iv) under capital leases and (v) in the nature of Guarantees of the obligations described in clauses (i) through (iv) above of any other Person.

 

“ Intellectual Property Rights ” has the meaning set forth in Section 2.10 to the Stock Purchase Agreement.

 

“ Investor ” means Zions, its Affiliates and their respective successors or any transferee or assignee of all of the shares of Common Stock purchased by Zions pursuant to the Stock Purchase Agreement.

 

“ Investor Offer Price ” has the meaning set forth in Section 5.2(a) of this Agreement.

 

“ Investor Offered Shares ” has the meaning set forth in Section 5.2(a) of this Agreement.

 

“ Investor Option Period ” has the meaning set forth in Section 5.1(b) of this Agreement.

 

“ Investor Tag-Along Notice ” has the meaning set forth in Section 3.3(c) of this Agreement.

 

“ Investor Transfer Notice ” has the meaning set forth in Section 5.2(a) of this Agreement.

 

“ Investor Director ” has the meaning set forth in Section 3.5(a) of this Agreement.

 

“ Liability ” or “ Liabilities ” means any liability (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due), including any liability for Taxes.

 

“ Lien ” or “ Liens ” means, with respect to any Person, any security interest, claim, pledge, mortgage, charge, option, assignment, hypothecation, encumbrance, attachment, garnishment, sequestration, forfeiture, execution or other voluntary or involuntary lien upon or affecting the revenues of such Person or any real or personal property in which such Person has or hereafter acquires any interest.

 

“ Majority Holders ” has the meaning set forth in Section 2.1(a) of this Agreement.

 

“ Material Adverse Effect ” means a material adverse effect upon the condition (financial or otherwise), business, properties, assets, results of operations or prospects of the Company and its Subsidiaries, taken as a whole, or upon the validity or enforceability of this Agreement, the Stock Purchase Agreement or the shares of Common Stock, or upon the ability of the Company to perform its obligations hereunder or under the Stock Purchase Agreement, or upon the rights of the Investor hereunder or thereunder.

 

“ Nasdaq ” means The Nasdaq Stock Market, Inc.

 

“ Notice ” has the meaning set forth in Section 0(a) of this Agreement.

 

“ Option Plan ” means the Company’s 1997 Stock Option Plan as in effect on the date of this Agreement.

 

“ Party ” or “ Parties ” have the meanings set forth in the preamble to this Agreement.

 

“ Person ” means any individual, corporation (including not-for-profit), general or limited partnership, limited liability company, joint venture, estate, trust, business trust, association, organization, Governmental Entity or other entity of any kind or nature.

 

“ Prohibited Transferee ” means any Person that is listed on Schedule A attached hereto.

 

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The terms “ register ”, “ registered ” and “ registration ” refer to a registration effected by preparing and filing a registration statement or similar document in compliance with the Securities Act, and the declaration or ordering of effectiveness of such registration statement or similar document.

 

“ Registrable Securities ” means any 23.1.1.4 Common Stock purchased pursuant to the Stock Purchase Agreement and (ii) Common Stock of the Company issued as (or issuable upon the conversion or exercise of any warrant, right or other security which is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of the shares referenced in clause (i) above.

 

The number of shares of “ Registrable Securities then outstanding ” shall be determined by the number of shares of Common Stock outstanding which are, and the number of shares of Common Stock issuable pursuant to then exercisable or convertible securities which are, Registrable Securities.

 

“ SEC ” means the United States Securities and Exchange Commission and any successor commission or agency having similar powers.

 

“ Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

 

“ Seller Party ” or “ Seller Parties ” has the meaning set forth in Section 3.3(a) of this Agreement.

 

“ Stock Purchase Agreement ” shall have the meaning set forth in the recitals to this Agreement.

 

“ Stockholder Offer Price ” has the meaning set forth in Section 5.1(a) of this Agreement.

 

“ Stockholder Offered Shares ” has the meaning set forth in Section 5.1(a) of this Agreement.

 

“ Stockholder Offeror ” has the meaning set forth in Section 5.1(a) of this Agreement.

 

“ Stockholder Option Period ” has the meaning set forth in Section 5.2(b) of this Agreement.

 

“ Stockholder Transfer Notice ” has the meaning set forth in Section 5.1(a) of this Agreement.

 

“ Subsidiary ” or “ Subsidiaries ” means, with respect to any Person, any entity, whether incorporated or unincorporated, of which at least a majority of the securities or ownership interests having by their terms ordinary voting power to elect a majority of the board of directors or other Persons performing similar functions is directly or indirectly owned or controlled by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries.  As of the date of execution of this Agreement, the Company has only two Subsidiaries, Insure.com, Inc., a Delaware corporation, and Life Quotes Acquisition, Inc., a Delaware corporation.

 

“ Tag-Along Allotment ” has the meaning set forth in Section 3.3(a) of this Agreement.

 

“ Tag-Along Notice Date ” has the meaning set forth in Section 3.3(a) of this Agreement.

 

“ Tag-Along Sale ” has the meaning set forth in Section 3.3(a) of this Agreement.

 

“ Tag-Along Sale Date ” has the meaning set forth in Section 3.3(b) of this Agreement.

 

“ Tag-Along Sale Notice ” has the meaning set forth in Section 3.3(b) of this Agreement.

 

“ Tax ” and “ Taxes ” means all federal, state, local and foreign taxes, charges, fees, customs, duties, levies or other assessments, however denominated, including, without limitation, all net income, gross income, profits, gains, gross receipts, sales, use, value added, goods and services, capital, production, transfer, franchise, windfall profits, license, withholding, payroll, employment, disability, employer health, excise, estimated, severance, stamp, occupation, property, environmental, unemployment, capital stock or any other taxes, charges, fees, customs, duties, levies or other assessments of any nature whatsoever, together with all interest, penalties and additions imposed with respect to such amounts and any interest in respect of such penalties and additions.

 

“ Transfer ” means to transfer, sell, assign, pledge, hypothecate, give, create a security interest in or Lien on, place in trust (voting or otherwise), assign or in any other way encumber or dispose of, directly or indirectly and whether or not by operation of law or for value, any shares of Common Stock.

 

“ Violation ” has the meaning set forth in Section 23.1.1.13 of this Agreement.

 

Registration Rights .  The Company hereby covenants and agrees as follows:

 

Request for Registration By the Holders .

 

If the Company shall receive at any time after the date hereof a written request from the Holders of fifty percent (50%) or more of the Registrable Securities then outstanding (the “ Majority Holders ”) that the Company file a registration statement under the Securities Act covering the registration of at least ten percent (10%) of the Registrable Securities then outstanding, then the Company shall:

 

within ten (10) days of the receipt thereof, give written notice of such request to all other Holders; and use commercially reasonable efforts to effect as soon as practicable the registration under the Securities Act of all Registrable Securities which the Majority Holders request to be registered and which all other

 

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Holders request to be registered in writing within thirty (30) days after the sending of such notice by the Company pursuant to subsection 2.1(a)(i).

 

If the Majority Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to subsection 2.1(a) and the Company shall include such information in the written notice referred to in subsection 0.  The underwriter shall be selected by the Majority Holders, subject to the approval of the Company (which approval shall not be unreasonably withheld or delayed).  In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein.  All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement (together with the Company as provided in subsection 0) with the underwriter or underwriters selected for such underwriting and shall execute any custody agreement, power of attorney  or other related document in customary form as may be required by any such underwriting agreement.  Notwithstanding any other provision of this Section 0, if the underwriter advises the Majority Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Majority Holders shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and shares shall be included in such underwriting according to the following priorities: 23.1.1.5  first , pro rata among the Holders of Registrable Securities according to the total amount of Registrable Securities entitled to be included therein by each Holder of Registrable Securities and 23.1.1.6  lastly , pro rata among any other holders of the Company’s securities seeking registration.

 

Notwithstanding the foregoing, if the Company shall furnish to the Majority Holders within five (5) business days after they request a registration statement pursuant to this Section 0, a certificate signed by the Chief Executive Officer of the Company stating that in the reasonable business judgment of the Board of Directors, it would not be in the best interests of the Company and its stockholders for such registration statement to be filed and it is therefore prudent to defer the filing of such registration statement, the Company shall have the right to defer taking action with respect to such filing for a period of not more than ninety (90) days after receipt of the request of the Majority Holders; provided , however , that the Company may not utilize this right more than once (1) in any twelve (12) month period.

 

In addition, the Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to this Section 0:

 

for three hundred sixty (360) days from the closing of the Stock Purchase Agreement;

 

for one hundred eighty (180) days from declaration of the effectiveness of a registration statement filed by the Company pursuant to this Section 0;

 

after the Company has effected three (3) registrations pursuant to this Section 0 and such registrations have been declared or ordered effective;

 

during the period starting with the date thirty (30) days prior to the Company’s good faith estimate of the date of filing of, and ending on a date sixty (60) days after the effective date of, a registration subject to Section 0 hereof; provided that (i) the Company is using commercially reasonable efforts to cause such registration statement to become effective and the Holders of Registrable Securities shall have been entitled to join in such registration pursuant to this Agreement and all Registrable Securities requested by the Holders to be registered shall have been so registered and (ii) the delay of any registration requested pursuant to Section 0, as a result of this clause 0, shall not exceed an aggregate of one hundred eighty (180) days; or

 

If the Majority Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made in accordance with Section 0 below.

 

Company Registration .  If (but without any obligation to do so) the Company proposes to register (including for this purpose a registration effected by the Company for stockholders other than the Holders) any of its stock under the Securities Act in connection with the public offering of such stock solely for cash (other than a registration statement on Form S-4 or Form S-8 or any other form relating solely to the sale of securities to participants in a Company stock plan, a registration on any form which does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities which are also being registered), the Company shall, at such time, promptly give each Holder written notice of such

 

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registration.  Upon the written request of any Holder given within thirty (30) days after the sending of such notice by the Company, the Company shall, subject to the provisions of Section 23.1.1.11, cause to be registered under the Securities Act all of the Registrable Securities that each such Holder has requested to be registered.

 

Obligations of the Company .  Whenever required under this Section 0 to effect the registration of any Registrable Securities, the Company shall:

 

Prepare and file with the SEC a registration statement with respect to such Registrable Securities and use commercially reasonable efforts to cause such registration statement to become effective and to keep such registration statement effective for the lesser of three hundred sixty (360) days or until the distribution contemplated in the Registration Statement has been completed; provided , however , that 23.1.1.7 such three hundred sixty (360)-day period shall be extended for a period of time equal to the period the Holder refrains from selling any securities included in such registration at the request of an underwriter of Common Stock (or other securities) of the Company; and 23.1.1.8 in the case of any registration of Registrable Securities on Form S-3 which are intended to be offered on a continuous or delayed basis, such three hundred sixty (360)-day period shall be extended, if necessary, to keep the registration statement effective until all such Registrable Securities are sold.

 

Promptly prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement.

 

Promptly furnish to the Holders such numbers of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as they may reasonably request in order to facilitate the disposition of Registrable Securities owned by them.

 

Use commercially reasonable efforts to register and qualify the securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as shall be reasonably requested by the Holders; provided , howeve r , that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business, subject itself to general taxation or file a general consent to service of process in any such jurisdiction.

 

In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the underwriter or underwriters of such offering.  Each Holder participating in such underwriting shall also enter into and perform its obligations under such an agreement.

 

Promptly notify each Holder of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a 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.

 

Cause all such Registrable Securities registered pursuant hereto to be listed on any securities exchange or quoted on any interdealer quotation system on which similar securities issued by the Company are then listed or quoted, as the case may be, not later than the effective date of such registration.

 

Provide a transfer agent and registrar for all Registrable Securities registered pursuant hereto and a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such registration.

 

Furnish, at the request of any Holder requesting registration of Registrable Securities pursuant to this Section 2, on the date that such Registrable Securities are delivered to the underwriters for sale in connection with a registration pursuant to this Section 0, if such securities are being sold through underwriters, or, if such securities are not being sold through underwriters, on the date that the registration statement with respect to such securities becomes effective, 23.1.1.9 an opinion, dated such date, of the counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, if any, and to the Holders requesting registration of Registrable Securities and 23.1.1.10 a letter dated such date, from the independent certified public accountants of the Company, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the underwriters, if any, and to the Holders requesting registration of Registrable Securities.

 

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Furnish Information .  It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 0 with respect to the Registrable Securities of any selling Holder that such Holder shall furnish to the Company such information regarding itself, the Registrable Securities held by it and the intended method of disposition of such securities as shall be required to effect the registration of such Holder’s Registrable Securities.

 

Expenses of Demand Registration .  All expenses (other than underwriting discounts and commissions) incurred in connection with all registrations, filings or qualifications pursuant to Section 0, including, without limitation, all registration, filing and qualification fees, printers’ and accounting fees, fees and disbursements of counsel for the Company and reasonable fees and disbursements of one (1) counsel for the selling Holders (to be selected by the Majority Holders, subject to the approval of the Company (which approval shall not be unreasonably withheld or delayed)) shall be borne by the Company; provided , however , that such fees and disbursements of counsel for the selling Holders shall not exceed $50,000;  provided , further , that the Company shall not be required to pay for any expenses of any registration proceeding begun pursuant to Section 0 if the registration request is subsequently withdrawn at the request of the Majority Holders (in which case all participating Holders of Registrable Securities shall bear such expenses in their entirety), unless the Majority Holders agree to forfeit one (1) demand registration pursuant to Section 0; provided , further , that if at the time of such withdrawal, the Majority Holders have learned of a material adverse change in the condition (financial or otherwise), business, properties, assets, results of operations or prospects of the Company or its Subsidiaries from that known to the Majority Holders at the time of their request and have withdrawn the request with reasonable promptness following disclosure by the Company of such material adverse change, then the Majority Holders shall not be required to pay any of such expenses and shall retain their rights pursuant to Section 0.

 

Expenses of Company Registration .  The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of Registrable Securities with respect to any registration pursuant to Section 0 for each Holder, including, without limitation, all registration, filing and qualification fees, printers’ and accounting fees, fees and disbursements of counsel for the Company and reasonable fees and disbursements of one (1) counsel for the selling Holders (to be selected by the Holders of a majority of the Registrable Securities to be registered, subject to the approval of the Company (which approval shall not be unreasonably withheld or delayed)), but excluding underwriting discounts and commissions relating to Registrable Securities; provided , however , that such fees and disbursements of counsel for the selling Holders shall not exceed $50,000.

 

Underwriting Requirements .  In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 0 to include any of the Holders’ securities in such underwriting unless they accept the terms of the underwriting agreement as agreed upon between the Company and the underwriters selected by it (or by other Persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion shall not jeopardize the success of the offering by the Company.  If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, which the underwriters determine in their sole discretion shall not jeopardize the success of the offering (the securities so included to be apportioned 23.1.1.11  first , pro rata among the Holders of Registrable Securities according to the total amount of Registrable Securities entitled to be included therein by each Holder of Registrable Securities and 23.1.1.12  lastly , pro rata among the other selling stockholders according to the total amount of securities entitled to be included therein owned by each other selling stockholder or in such other proportions as shall mutually be agreed to by such other selling stockholders).

 

Delay of Registration .  No Holder shall have any right to obtain or seek an injunction restraining or otherwise delaying any registration hereunder as the result of any controversy that might arise with respect to the interpretation or implementation of this Section 0.

 

Indemnification .  In the event any Registrable Securities are included in a registration statement under this Section 0:

 

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To the extent permitted by law, the Company shall indemnify and hold harmless each Holder, any underwriter (as defined in the Securities Act) for such Holder and each Person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any losses, claims, damages or liabilities (joint or several) to which they may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any the following statements, omissions or violations (collectively, a “ Violation ”):  23.1.1.13 any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus or final prospectus or any amendments or supplements thereto; 23.1.1.14 the omission or alleged omission to state in any such prospectus a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (iii) any untrue statement or alleged untrue statement of a material fact contained in any registration statement or any amendments or supplements thereto; (iv)  the omission or alleged omission to state in any such registration statement a material fact required to be stated therein or necessary to make the statements therein not misleading; (v) any violation or alleged violation by the Company of the Securities Act, the Exchange Act or other federal or state law or any rule or regulation promulgated under the Securities Act, the Exchange Act or other federal or state law; and the Company shall pay to each such Holder, underwriter or controlling Person, as incurred, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided , however , that the indemnity agreement contained in this subsection 23.1.1.13 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Company, nor shall the Company be liable in any such case for any such loss, claim, damage, liability or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration statement by any such Holder, underwriter or controlling Person.

 

To the extent permitted by law, each selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who has signed the registration statement, each Person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act, any underwriter (as defined in the Securities Act), any other Holder selling securities in such registration statement and any controlling Person of any such underwriter or other Holder, against any losses, claims, damages or liabilities (joint or several) to which any of the foregoing Persons may become subject, under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages or liabilities (or actions in respect thereto) arise out of or are based upon any Violation (and only to such extent) that occurs in reliance upon and in conformity with written information furnished by such Holder expressly for use in connection with such registration statement; and each such Holder shall pay, as incurred, any legal or other expenses reasonably incurred by any Person intended to be indemnified pursuant to this subsection 0 in connection with investigating or defending any such loss, claim, damage, liability or action; provided , however , that the indemnity agreement contained in this subsection 0 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Holder; provided , that, in no event shall any indemnity under this subsection 0 exceed the net proceeds from the offering received by such Holder.

 

Promptly after receipt by an indemnified party under this Section 0 of notice of the commencement of any action (including any action by any Governmental Entity), such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party under this Section 0, deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the indemnified party; provided , however , that an indemnified party (together with all other indemnified parties which may be represented without conflict by one counsel) shall have the right to retain one (1) separate counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to an actual or potential conflict of interest between such indemnified party and any other party represented by such counsel in such proceeding.

 

If the indemnification provided for in this Section 0 is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, liability, claim, damage or expense referred to herein or is insufficient to hold such indemnified party harmless, then, except to the extent that contribution is

 

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not permitted under Section 11(f) of the Securities Act, each applicable indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such loss, liability, claim, damage or expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party on the other in connection with the statements or omissions that resulted in such loss, liability, claim, damage or expense as well as any other relevant equitable considerations.  The relative fault of the indemnifying party and of the indemnified party 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 indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information concerning the matter with respect to which the claim was asserted and opportunity to correct or prevent such statement or omission.  The Parties agree that it would be neither just nor equitable if contribution pursuant to this Section 2.9(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding sentences.  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.

 

Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with an underwritten public offering a