is aware in connection with the transactions contemplated
by this Agreement.
(B)
INDEMNIFICATION BY THE PURCHASER. THE PURCHASER SHALL INDEMNIFY
AND HOLD HARMLESS THE COMPANY, ITS DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES,
EACH PERSON WHO CONTROLS THE COMPANY (WITHIN THE MEANING OF SECTION 15 OF THE
SECURITIES ACT AND SECTION 20 OF THE EXCHANGE ACT), AND THE DIRECTORS, OFFICERS,
AGENTS OR EMPLOYEES OF SUCH CONTROLLING PERSONS, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, FROM AND AGAINST ALL LOSSES, AS INCURRED, TO THE EXTENT
ARISING OUT OF OR TO THE EXTENT BASED UPON: (X) THE PURCHASER'S FAILURE TO
COMPLY WITH THE PROSPECTUS DELIVERY REQUIREMENTS OF THE SECURITIES ACT OR (Y)
ANY UNTRUE STATEMENT OF A MATERIAL FACT CONTAINED IN ANY REGISTRATION STATEMENT,
ANY PROSPECTUS, OR ANY FORM OF PROSPECTUS, OR IN ANY AMENDMENT OR SUPPLEMENT
THERETO, OR TO THE EXTENT ARISING OUT OF OR TO THE EXTENT BASED UPON ANY
OMISSION OF A MATERIAL FACT REQUIRED TO BE STATED THEREIN OR NECESSARY TO MAKE
THE STATEMENTS THEREIN NOT MISLEADING TO THE EXTENT, BUT ONLY TO THE EXTENT
THAT, (1) SUCH UNTRUE STATEMENTS OR OMISSIONS ARE BASED SOLELY UPON INFORMATION
REGARDING THE PURCHASER FURNISHED IN WRITING TO THE COMPANY BY THE PURCHASER
EXPRESSLY FOR USE THEREIN, OR TO THE EXTENT THAT SUCH INFORMATION RELATES TO THE
PURCHASER OR THE PURCHASER'S PROPOSED METHOD OF DISTRIBUTION OF REGISTRABLE
SECURITIES, SUCH PROSPECTUS OR SUCH FORM OF PROSPECTUS OR IN ANY AMENDMENT OR
SUPPLEMENT THERETO OR (2) IN THE CASE OF AN OCCURRENCE OF AN EVENT OF THE TYPE
SPECIFIED IN SECTION 3(C)(II)-(VI), THE USE BY THE PURCHASER OF AN OUTDATED OR
DEFECTIVE PROSPECTUS AFTER THE COMPANY HAS NOTIFIED THE PURCHASER IN WRITING
THAT THE PROSPECTUS IS OUTDATED OR DEFECTIVE AND PRIOR TO THE RECEIPT BY THE
PURCHASER OF AN ADVICE OR AN AMENDED OR SUPPLEMENTED PROSPECTUS, BUT ONLY IF AND
TO THE EXTENT THAT FOLLOWING THE RECEIPT OF THE ADVICE OR THE AMENDED OR
SUPPLEMENTED PROSPECTUS THE MISSTATEMENT OR OMISSION GIVING RISE TO SUCH LOSS
WOULD HAVE BEEN CORRECTED.
IN NO EVENT SHALL THE LIABILITY OF ANY SELLING
PURCHASER HEREUNDER BE GREATER IN AMOUNT THAN THE DOLLAR AMOUNT OF THE NET
PROCEEDS RECEIVED BY THE PURCHASER UPON THE SALE OF THE REGISTRABLE SECURITIES
GIVING RISE TO SUCH INDEMNIFICATION OBLIGATION.
8
(C)
CONDUCT OF INDEMNIFICATION PROCEEDINGS. IF ANY PROCEEDING SHALL BE
BROUGHT OR ASSERTED AGAINST ANY PERSON ENTITLED TO INDEMNITY HEREUNDER (AN
"INDEMNIFIED PARTY"), SUCH INDEMNIFIED PARTY SHALL PROMPTLY NOTIFY THE PERSON
FROM WHOM INDEMNITY IS SOUGHT (THE "INDEMNIFYING PARTY") IN WRITING, AND THE
INDEMNIFYING PARTY SHALL ASSUME THE DEFENSE THEREOF, INCLUDING THE EMPLOYMENT OF
COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED PARTY AND THE PAYMENT OF ALL
FEES AND EXPENSES INCURRED IN CONNECTION WITH DEFENSE THEREOF; PROVIDED, THAT
THE FAILURE OF ANY INDEMNIFIED PARTY TO GIVE SUCH NOTICE SHALL NOT RELIEVE THE
INDEMNIFYING PARTY OF ITS OBLIGATIONS OR LIABILITIES PURSUANT TO THIS AGREEMENT,
EXCEPT (AND ONLY) TO THE EXTENT THAT SUCH FAILURE SHALL HAVE MATERIALLY AND
ADVERSELY PREJUDICED THE INDEMNIFYING PARTY.
An Indemnified Party shall