(I) IT WILL
NOT SOLICIT OFFERS FOR, OR OFFER OR SELL, SUCH SECURITIES BY ANY FORM OF GENERAL
SOLICITATION OR GENERAL ADVERTISING (AS THOSE TERMS ARE USED IN REGULATION D
UNDER THE SECURITIES ACT) OR IN ANY MANNER INVOLVING A PUBLIC OFFERING WITHIN
THE MEANING OF SECTION 4(2) OF THE SECURITIES ACT AND (II) IT WILL SOLICIT
OFFERS FOR SUCH SECURITIES ONLY FROM, AND WILL OFFER SUCH SECURITIES ONLY TO,
PERSONS THAT IT REASONABLY BELIEVES TO BE QIBS THAT IN PURCHASING SUCH
SECURITIES ARE DEEMED TO HAVE REPRESENTED
15
AND AGREED AS PROVIDED IN THE FINAL OFFERING MEMORANDUM UNDER THE CAPTION
"TRANSFER RESTRICTIONS".
9.
Indemnity and Contribution.
(a) The
Company agrees to indemnify and hold harmless each Initial Purchaser, each
person, if any, who controls any Initial Purchaser within the meaning of either
Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and each affiliate of any Initial
Purchaser within the meaning of Rule 405 under the Securities Act, from and
against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the Time
of Sale Memorandum or the Final Offering Memorandum or any amendments or
supplements thereto, or caused by any omission or alleged omission to state
therein a material fact necessary to make the statements therein in the light of
circumstances under which they were made not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to any Initial Purchaser furnished to the Company in writing by such
Initial Purchaser through you expressly for use therein.
(B)
EACH INITIAL PURCHASER AGREES, SEVERALLY AND
NOT JOINTLY, TO INDEMNIFY AND HOLD HARMLESS THE COMPANY, ITS DIRECTORS, ITS
OFFICERS AND EACH PERSON, IF ANY, WHO CONTROLS THE COMPANY WITHIN THE MEANING OF
EITHER SECTION 15 OF THE SECURITIES ACT OR SECTION 20 OF THE EXCHANGE ACT, FROM
AND AGAINST ANY AND ALL LOSSES, CLAIMS, DAMAGES AND LIABILITIES (INCLUDING,
WITHOUT LIMITATION, ANY LEGAL OR OTHER EXPENSES REASONABLY INCURRED IN
CONNECTION WITH DEFENDING OR INVESTIGATING ANY SUCH ACTION OR CLAIM) CAUSED BY
ANY UNTRUE STATEMENT OR ALLEGED UNTRUE STATEMENT OF A MATERIAL FACT CONTAINED IN
THE TIME OF SALE MEMORANDUM OR THE FINAL OFFERING MEMORANDUM OR ANY AMENDMENTS
OR SUPPLEMENTS THERETO, OR CAUSED BY ANY OMISSION OR ALLEGED OMISSION TO STATE
THEREIN A MATERIAL FACT NECESSARY TO MAKE THE STATEMENTS THEREIN IN THE LIGHT OF
CIRCUMSTANCES UNDER WHICH THEY WERE MADE NOT MISLEADING, BUT ONLY WITH REFERENCE
TO INFORMATION RELATING TO SUCH INITIAL PURCHASER FURNISHED TO THE COMPANY IN
WRITING BY SUCH INITIAL PURCHASER THROUGH YOU EXPRESSLY FOR USE IN THE TIME OF
SALE MEMORANDUM AND THE FINAL OFFERING MEMORANDUM OR ANY AMENDMENTS OR
SUPPLEMENTS THERETO.