REGISTRATION STATEMENT OR THE PROSPECTUS CONTAINED
THEREIN BY SUCH INDEMNITEE; (B) MADE IN ANY PRELIMINARY PROSPECTUS IF THE HOLDER
FAILED TO DELIVER OR MAKE AVAILABLE A COPY OF THE PROSPECTUS WITH OR PRIOR TO
DELIVERY OF WRITTEN CONFIRMATION OF THE SALE BY THE HOLDER TO THE PARTY
ASSERTING THE CLAIM AND SUCH PROSPECTUS WOULD HAVE CORRECTED SUCH UNTRUE
STATEMENT OR ADMISSION; OR (C) MADE IN ANY PROSPECTUS IF ANY UNTRUE STATEMENT OR
OMISSION WAS CORRECTED IN AN AMENDMENT OR SUPPLEMENT TO SUCH PROSPECTUS
DELIVERED TO THE HOLDER PRIOR TO THE SALE OF REGISTRABLE SHARES AND
11
THE HOLDER FAILED TO DELIVER OR MAKE AVAILABLE SUCH AMENDMENT OR SUPPLEMENT
PRIOR TO OR CONCURRENTLY WITH THE SALE OF REGISTRABLE SHARES TO THE PARTY
ASSERTING THE CLAIM.
THE INDEMNITY PROVIDED FOR HEREIN SHALL REMAIN IN FULL
FORCE AND EFFECT REGARDLESS OF ANY INVESTIGATION MADE BY OR ON BEHALF OF ANY
INDEMNITEE.
10.
COVENANTS OF HOLDER.
THE HOLDER HEREBY AGREES
(A) TO COOPERATE WITH THE COMPANY AND TO FURNISH TO THE COMPANY ALL SUCH
INFORMATION (INCLUDING CUSTOMARY INVESTOR QUESTIONNAIRES) CONCERNING ITS PLAN OF
DISTRIBUTION AND OWNERSHIP INTERESTS WITH RESPECT TO ITS REGISTRABLE SHARES IN
CONNECTION WITH THE PREPARATION OF EACH REGISTRATION STATEMENT WITH RESPECT TO
THE HOLDER'S REGISTRABLE SHARES AND ANY FILINGS WITH ANY STATE SECURITIES
COMMISSIONS AS THE COMPANY MAY REASONABLY REQUEST, (B) TO INDEMNIFY THE COMPANY,
ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES AND AFFILIATES, AND
EACH PERSON, IF ANY, WHO CONTROLS THE COMPANY WITHIN THE MEANING OF THE
SECURITIES ACT, AND EACH OTHER PERSON, IF ANY, SUBJECT TO LIABILITY BECAUSE OF
HIS, HER OR ITS CONNECTION WITH THE COMPANY, AGAINST ANY AND ALL LOSSES, CLAIMS,
DAMAGES, ACTIONS, LIABILITIES, COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION
REASONABLE FEES, EXPENSES AND DISBURSEMENTS OF ATTORNEYS AND OTHER
PROFESSIONALS), JOINT OR SEVERAL, ARISING OUT OF OR BASED UPON ANY UNTRUE
STATEMENT OR ALLEGED UNTRUE STATEMENT OF MATERIAL FACT CONTAINED IN ANY SUCH
REGISTRATION STATEMENT OR THE PROSPECTUS CONTAINED THEREIN, OR ANY OMISSION OR
ALLEGED OMISSION TO STATE THEREIN A MATERIAL FACT REQUIRED TO BE STATED THEREIN
OR NECESSARY TO MAKE THE STATEMENTS THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER
WHICH THEY WERE MADE, NOT MISLEADING, IF AND ONLY TO THE EXTENT THAT SUCH
STATEMENT OR OMISSION OCCURS FROM RELIANCE UPON AND IN CONFORMITY WITH WRITTEN
INFORMATION REGARDING THE HOLDER, HIS, HER OR ITS PLAN OF DISTRIBUTION OR HIS,
HER OR ITS OWNERSHIP INTERESTS, THAT WAS FURNISHED TO THE COMPANY IN WRITING BY
THE HOLDER PURSUANT TO AN INVESTOR QUESTIONNAIRE OR OTHERWISE EXPRESSLY FOR USE
THEREIN UNLESS SUCH STATEMENT OR OMISSION WAS CORRECTED IN WRITING TO THE
COMPANY PRIOR TO THE DATE ONE DAY PRIOR TO THE DATE OF THE FINAL PROSPECTUS (AS
SUPPLEMENTED OR AMENDED, AS THE CASE MAY BE).
11.
INDEMNIFICATION PROCEDURES.
ANY PERSON
ENTITLED TO INDEMNIFICATION UNDER THIS AGREEMENT SHALL NOTIFY PROMPTLY THE
INDEMNIFYING PARTY IN WRITING OF THE COMMENCEMENT OF ANY ACTION OR PROCEEDING
WITH RESPECT TO WHICH A CLAIM FOR INDEMNIFICATION MAY BE MADE HEREUNDER, BUT THE
FAILURE OF ANY INDEMNIFIED PARTY