STATED THEREIN OR NECESSARY TO MAKE THE STATEMENTS THEREIN
NOT MISLEADING TO THE EXTENT, BUT ONLY TO THE EXTENT, THAT SUCH UNTRUE STATEMENT
OR OMISSION IS CONTAINED IN ANY INFORMATION FURNISHED IN WRITING BY SUCH
PURCHASER TO THE COMPANY SPECIFICALLY FOR INCLUSION IN SUCH REGISTRATION
STATEMENT OR PROSPECTUS OR TO THE EXTENT THAT (I) SUCH UNTRUE STATEMENTS OR
OMISSIONS ARE BASED UPON INFORMATION REGARDING SUCH PURCHASER FURNISHED IN
WRITING TO THE COMPANY BY SUCH PURCHASER EXPRESSLY FOR USE THEREIN, OR TO THE
EXTENT THAT SUCH INFORMATION RELATED TO SUCH PURCHASER OR SUCH PURCHASER'S
PROPOSED METHOD OF DISTRIBUTION OF REGISTRABLE SECURITIES AND WAS REVIEWED AND
EXPRESSLY APPROVED IN WRITING BY SUCH PURCHASER EXPRESSLY FOR USE IN THE
REGISTRATION STATEMENT, SUCH PROSPECTUS OR SUCH FORM OF PROSPECTUS OR IN ANY
AMENDMENT OR SUPPLEMENT THERETO OR (II) THE PURCHASER SOLD SHARES USING AN
OUTDATED OR DEFECTIVE PROSPECTUS AFTER THE COMPANY HAS NOTIFIED SUCH PURCHASER
IN WRITING THAT THE PROSPECTUS IS OUTDATED OR DEFECTIVE.
IN NO EVENT SHALL THE
LIABILITY OF ANY SELLING PURCHASER HEREUNDER BE GREATER IN AMOUNT THAN THE
DOLLAR AMOUNT OF THE GROSS PROCEEDS RECEIVED BY SUCH PURCHASER UPON THE SALE OF
THE SHARES GIVING RISE TO SUCH INDEMNIFICATION OBLIGATION.
(3)
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 PREJUDICED THE
INDEMNIFYING PARTY.
AN INDEMNIFIED PARTY SHALL HAVE THE RIGHT TO EMPLOY
SEPARATE COUNSEL IN ANY SUCH PROCEEDING AND TO PARTICIPATE IN THE DEFENSE
THEREOF, BUT THE FEES AND EXPENSES OF SUCH COUNSEL SHALL BE AT THE EXPENSE OF
SUCH INDEMNIFIED PARTY OR PARTIES UNLESS: (I) THE INDEMNIFYING PARTY HAS AGREED
IN WRITING TO PAY SUCH FEES AND EXPENSES; OR (II) THE INDEMNIFYING PARTY SHALL
HAVE FAILED PROMPTLY TO ASSUME THE DEFENSE OF SUCH PROCEEDING AND TO EMPLOY
COUNSEL REASONABLY SATISFACTORY TO SUCH INDEMNIFIED PARTY IN ANY SUCH
PROCEEDING; OR (III) THE NAMED PARTIES TO ANY SUCH PROCEEDING (INCLUDING ANY
IMPLEADED PARTIES) INCLUDE BOTH SUCH INDEMNIFIED PARTY AND THE INDEMNIFYING
PARTY, AND SUCH INDEMNIFIED PARTY SHALL HAVE BEEN ADVISED BY COUNSEL THAT A
CONFLICT OF INTEREST IS LIKELY TO EXIST IF THE SAME COUNSEL
8
WERE TO REPRESENT SUCH INDEMNIFIED PARTY AND THE INDEMNIFYING PARTY (IN WHICH
CASE, IF SUCH INDEMNIFIED PARTY NOTIFIES THE INDEMNIFYING PARTY IN WRITING THAT
IT ELECTS TO EMPLOY SEPARATE COUNSEL AT THE EXPENSE OF THE INDEMNIFYING PARTY,
THE INDEMNIFYING PARTY SHALL NOT HAVE THE RIGHT TO ASSUME THE DEFENSE THEREOF
AND