ANY SUCH REGISTRATION STATEMENT,
PROSPECTUS, OFFERING CIRCULAR, OR OTHER DOCUMENT, OR ANY OMISSION (OR ALLEGED
22
OMISSION) TO STATE THEREIN A MATERIAL FACT REQUIRED TO BE STATED THEREIN OR
NECESSARY TO MAKE THE STATEMENTS THEREIN NOT MISLEADING, AND WILL REIMBURSE THE
COMPANY AND SUCH HOLDERS, OTHER STOCKHOLDERS, DIRECTORS, OFFICERS, PERSONS OR
CONTROL PERSONS FOR ANY LEGAL OR ANY OTHER EXPENSES REASONABLY INCURRED IN
CONNECTION WITH INVESTIGATING OR DEFENDING ANY SUCH CLAIM, LOSS, DAMAGE,
LIABILITY, OR ACTION, AS SUCH EXPENSES ARE INCURRED, IN EACH CASE TO THE EXTENT,
BUT ONLY TO THE EXTENT, THAT SUCH UNTRUE STATEMENT (OR ALLEGED UNTRUE STATEMENT)
OR OMISSION (OR ALLEGED OMISSION) IS MADE IN SUCH REGISTRATION STATEMENT,
PROSPECTUS, OFFERING CIRCULAR, OR OTHER DOCUMENT IN RELIANCE UPON AND IN
CONFORMITY WITH WRITTEN INFORMATION FURNISHED TO THE COMPANY BY THE INVESTOR OR
SUCH HOLDER AND STATED TO BE SPECIFICALLY FOR USE THEREIN, OR SUCH LOSS, DAMAGES
OR LIABILITY INCURRED AROSE OUT OF THE INVESTOR'S OR CONTROLLING PERSON'S
FAILURE TO DELIVER INFORMATION NECESSARY TO MAKE ACCURATE AND TRUE STATEMENTS IN
ANY REGISTRATION STATEMENT, IF SUCH INFORMATION WAS REQUESTED BY THE COMPANY;
PROVIDED, HOWEVER, THAT THE OBLIGATIONS OF THE INVESTOR OR SUCH HOLDER HEREUNDER
SHALL NOT APPLY TO AMOUNTS PAID IN SETTLEMENT OF ANY SUCH CLAIMS, LOSSES,
DAMAGES, OR LIABILITIES (OR ACTIONS IN RESPECT THEREOF) IF SUCH SETTLEMENT IS
EFFECTED WITHOUT THE CONSENT OF THE INVESTOR OR SUCH HOLDER (WHICH CONSENT SHALL
NOT BE UNREASONABLY WITHHELD); AND PROVIDED THAT THAT IN NO EVENT SHALL ANY
INDEMNITY UNDER THIS SECTION 8.6 EXCEED THE GROSS PROCEEDS RECEIVED BY THE
INVESTOR OR SUCH HOLDER IN SUCH OFFERING.
(C)
EACH PARTY ENTITLED TO INDEMNIFICATION UNDER THIS SECTION 8.6 (THE
"INDEMNIFIED PARTY") SHALL GIVE WRITTEN NOTICE TO THE PARTY REQUIRED TO PROVIDE
INDEMNIFICATION (THE "INDEMNIFYING PARTY") PROMPTLY AFTER SUCH INDEMNIFIED PARTY
HAS ACTUAL KNOWLEDGE OF ANY CLAIM AS TO WHICH INDEMNITY MAY BE SOUGHT, AND SHALL
PERMIT THE INDEMNIFYING PARTY TO ASSUME THE DEFENSE OF ANY SUCH CLAIM OR ANY
LITIGATION RESULTING THEREFROM (PROVIDED THAT A CONFLICT OF INTEREST DOES NOT
EXIST BETWEEN THE INDEMNIFIED PARTY AND THE INDEMNIFYING PARTY WITH RESPECT TO
SUCH CLAIM), PROVIDED THAT COUNSEL FOR THE INDEMNIFYING PARTY, WHO SHALL CONDUCT
THE DEFENSE OF SUCH CLAIM OR LITIGATION, SHALL BE APPROVED BY THE INDEMNIFIED
PARTY (WHOSE APPROVAL SHALL NOT UNREASONABLY BE WITHHELD), AND THE INDEMNIFIED
PARTY MAY PARTICIPATE IN SUCH DEFENSE AT SUCH PARTY'S EXPENSE, AND PROVIDED
FURTHER THAT THE FAILURE OF ANY INDEMNIFIED PARTY TO GIVE NOTICE AS PROVIDED
HEREIN SHALL NOT RELIEVE THE INDEMNIFYING PARTY OF ITS OBLIGATIONS UNDER THIS
SECTION 8 UNLESS THE FAILURE TO GIVE SUCH NOTICE IS MATERIALLY PREJUDICIAL TO AN
INDEMNIFYING PARTY'S ABILITY TO DEFEND SUCH ACTION.
NO INDEMNIFYING PARTY, IN
THE DEFENSE OF ANY SUCH CLAIM OR LITIGATION, SHALL, EXCEPT WITH THE CONSENT OF
EACH INDEMNIFIED PARTY, CONSENT TO ENTRY OF ANY JUDGMENT OR ENTER INTO ANY
SETTLEMENT WHICH DOES NOT INCLUDE AS AN UNCONDITIONAL TERM THEREOF THE GIVING BY
THE CLAIMANT OR PLAINTIFF TO SUCH INDEMNIFIED PARTY OF A RELEASE FROM ALL