SECURITIES.
8.
INDEMNIFICATION.
8.1.
THE COMPANY SHALL INDEMNIFY AND HOLD HARMLESS
THE INVESTOR, EACH OFFICER, DIRECTOR, EMPLOYEE, AGENT AND REPRESENTATIVE OF THE
INVESTOR, AND EACH PERSON, IF ANY, WHO CONTROLS THE INVESTOR WITHIN THE MEANING
OF THE SECURITIES ACT OR THE EXCHANGE ACT AGAINST ANY LOSSES, CLAIMS, DAMAGES,
LIABILITIES OR REASONABLE OUT-OF-POCKET EXPENSES (WHETHER JOINT OR SEVERAL)
(COLLECTIVELY, INCLUDING LEGAL OR OTHER EXPENSES REASONABLY INCURRED IN
CONNECTION WITH INVESTIGATING OR DEFENDING SAME, "LOSSES"), INSOFAR AS ANY SUCH
LOSSES ARISE OUT OF OR ARE BASED UPON (I) ANY UNTRUE STATEMENT OR ALLEGED UNTRUE
STATEMENT OF A MATERIAL FACT CONTAINED IN THE SECOND REGISTRATION STATEMENT,
INCLUDING ANY PRELIMINARY PROSPECTUS OR FINAL PROSPECTUS CONTAINED THEREIN OR
ANY AMENDMENTS OR SUPPLEMENTS THERETO, OR (II) THE OMISSION OR ALLEGED OMISSION
TO STATE THEREIN A MATERIAL FACT REQUIRED TO BE STATED IN THE SECOND
REGISTRATION STATEMENT, INCLUDING ANY PRELIMINARY PROSPECTUS OR FINAL PROSPECTUS
CONTAINED THEREIN OR ANY AMENDMENTS OR SUPPLEMENTS THERETO, OR NECESSARY TO MAKE
THE STATEMENTS THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE
MADE, NOT MISLEADING.
SUBJECT TO THE PROVISIONS OF SECTION 8.2 BELOW, THE
COMPANY WILL REIMBURSE THE INVESTOR, AND EACH SUCH OFFICER, DIRECTOR, EMPLOYEE,
AGENT, REPRESENTATIVE OR CONTROLLING PERSON, FOR ANY LEGAL OR OTHER
OUT-OF-POCKET EXPENSES REASONABLY INCURRED BY ANY SUCH ENTITY OR PERSON IN
CONNECTION WITH INVESTIGATING OR DEFENDING ANY LOSS AS SUCH EXPENSES ARE
INCURRED.
THE FOREGOING INDEMNITY SHALL NOT APPLY TO AMOUNTS PAID IN SETTLEMENT
OF ANY LOSS IF SUCH SETTLEMENT IS EFFECTED WITHOUT THE CONSENT OF THE COMPANY
(WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD), NOR SHALL THE COMPANY BE
OBLIGATED TO INDEMNIFY ANY PERSON FOR ANY LOSS TO THE EXTENT THAT SUCH LOSS IS
(X) BASED UPON AND IS IN CONFORMITY WITH WRITTEN INFORMATION FURNISHED BY SUCH
PERSON EXPRESSLY FOR USE IN THE SECOND REGISTRATION STATEMENT OR (Y) BASED ON A
FAILURE OF SUCH PERSON TO DELIVER OR CAUSE TO BE DELIVERED THE FINAL PROSPECTUS
CONTAINED IN THE SECOND REGISTRATION STATEMENT AND MADE AVAILABLE BY THE
COMPANY, IF SUCH DELIVERY IS REQUIRED BY APPLICABLE LAW.
THE COMPANY SHALL NOT
ENTER INTO ANY SETTLEMENT OF A LOSS THAT DOES NOT PROVIDE FOR THE UNCONDITIONAL
RELEASE OF SUCH INVESTOR FROM ALL LIABILITIES AND OBLIGATIONS RELATING TO SUCH
LOSS.
8.2.
PROMPTLY AFTER RECEIPT BY AN INDEMNIFIED PARTY
UNDER THIS SECTION 8 OF NOTICE OF THE COMMENCEMENT OF ANY ACTION (INCLUDING ANY
GOVERNMENTAL ACTION), SUCH INDEMNIFIED PARTY WILL, IF A CLAIM IN RESPECT THEREOF
IS TO BE MADE AGAINST ANY INDEMNIFYING PARTY UNDER THIS SECTION
8,
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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 assume
the defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own
counsel, with the reasonably incurred fees and expenses of one such counsel for
all indemnified parties to be paid by the indemnifying party, if representation
of such indemnified party by the