WITH ANY
SUCH REGISTRATION STATEMENT OR PROSPECTUS AND, TO THE FULLEST EXTENT PERMITTED
BY LAW, SHALL INDEMNIFY AND HOLD HARMLESS THE OTHER HOLDERS OF REGISTRABLE
SECURITIES AND THE CORPORATION, AND THEIR RESPECTIVE OFFICERS, DIRECTORS,
AGENTS, AND EMPLOYEES, AND EACH OTHER PERSON WHO CONTROLS THE CORPORATION
(WITHIN THE MEANING OF THE SECURITIES ACT) AGAINST ANY LOSSES CAUSED BY,
RESULTING FROM, ARISING OUT OF, BASED UPON, OR RELATING TO (I) ANY UNTRUE OR
ALLEGED UNTRUE STATEMENT OF MATERIAL FACT CONTAINED IN THE REGISTRATION
STATEMENT, PROSPECTUS OR PRELIMINARY PROSPECTUS, OR ANY AMENDMENT THEREOF OR
SUPPLEMENT THERETO OR IN ANY APPLICATION, OR (II) ANY OMISSION OR ALLEGED
OMISSION OF A MATERIAL FACT REQUIRED TO BE STATED THEREIN OR NECESSARY TO MAKE
THE STATEMENTS THEREIN NOT MISLEADING, BUT ONLY TO THE EXTENT THAT SUCH UNTRUE
STATEMENT OR OMISSION IS MADE IN SUCH REGISTRATION STATEMENT, ANY SUCH
PROSPECTUS OR PRELIMINARY PROSPECTUS
17
OR ANY AMENDMENT OR SUPPLEMENT THERETO, OR IN ANY APPLICATION, IN EACH CASE, IN
RELIANCE UPON AND IN CONFORMITY WITH WRITTEN INFORMATION PREPARED AND FURNISHED
TO THE CORPORATION BY SUCH HOLDER EXPRESSLY FOR USE THEREIN, AND SUCH HOLDER
WILL REIMBURSE THE CORPORATION AND EACH SUCH OTHER INDEMNIFIED PARTY FOR ANY
LEGAL OR ANY OTHER EXPENSES INCURRED BY THEM IN CONNECTION WITH INVESTIGATING OR
DEFENDING ANY SUCH LOSSES; PROVIDED THAT THE OBLIGATION TO INDEMNIFY WILL BE
INDIVIDUAL, NOT JOINT AND SEVERAL, FOR EACH HOLDER AND SHALL BE LIMITED TO THE
NET AMOUNT OF PROCEEDS RECEIVED BY SUCH HOLDER FROM THE SALE OF REGISTRABLE
SECURITIES PURSUANT TO SUCH REGISTRATION STATEMENT.
(C)
ANY PERSON ENTITLED TO INDEMNIFICATION
HEREUNDER WILL (I) GIVE PROMPT WRITTEN NOTICE TO THE INDEMNIFYING PARTY OF ANY
CLAIM WITH RESPECT TO WHICH IT SEEKS INDEMNIFICATION (PROVIDED THAT THE FAILURE
TO GIVE PROMPT NOTICE SHALL NOT IMPAIR ANY PERSON'S RIGHT TO INDEMNIFICATION
HEREUNDER TO THE EXTENT SUCH FAILURE HAS NOT PREJUDICED THE INDEMNIFYING PARTY)
AND (II) UNLESS IN SUCH INDEMNIFIED PARTY'S REASONABLE JUDGMENT A CONFLICT OF
INTEREST BETWEEN SUCH INDEMNIFIED AND INDEMNIFYING PARTIES MAY EXIST WITH
RESPECT TO SUCH CLAIM, PERMIT SUCH INDEMNIFYING PARTY TO ASSUME THE DEFENSE OF
SUCH CLAIM WITH COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED PARTY. IF
SUCH DEFENSE IS ASSUMED, THEN THE INDEMNIFYING PARTY WILL NOT BE SUBJECT TO ANY
LIABILITY FOR ANY SETTLEMENT MADE BY THE INDEMNIFIED PARTY WITHOUT ITS CONSENT
(BUT SUCH CONSENT WILL NOT BE UNREASONABLY WITHHELD). AN INDEMNIFYING PARTY WHO
IS NOT ENTITLED TO, OR ELECTS NOT TO, ASSUME THE DEFENSE OF A CLAIM WILL NOT BE
OBLIGATED TO PAY THE FEES AND EXPENSES OF MORE THAN ONE COUNSEL FOR ALL PARTIES
INDEMNIFIED BY SUCH INDEMNIFYING PARTY WITH RESPECT TO SUCH CLAIM, UNLESS IN THE
REASONABLE JUDGMENT OF ANY INDEMNIFIED PARTY A CONFLICT OF INTEREST MAY EXIST
BETWEEN SUCH INDEMNIFIED PARTY AND ANY OTHER OF SUCH INDEMNIFIED PARTIES WITH
RESPECT TO SUCH CLAIM.
(D)
THE INDEMNIFICATION PROVIDED FOR UNDER THIS
AGREEMENT SHALL BE IN ADDITION TO ANY OTHER RIGHTS TO INDEMNIFICATION OR
CONTRIBUTION WHICH ANY INDEMNIFIED PARTY MAY HAVE PURSUANT TO LAW OR CONTRACT,
AND WILL