ABOVE AS SUCH EXPENSES ARE INCURRED; PROVIDED, HOWEVER, THAT CPE
LLC WILL NOT BE LIABLE IN ANY SUCH CASE TO THE EXTENT THAT ANY SUCH LOSS, CLAIM,
DAMAGE OR LIABILITY ARISES OUT OF OR IS BASED UPON AN UNTRUE STATEMENT OR
ALLEGED UNTRUE STATEMENT IN OR OMISSION OR ALLEGED OMISSION FROM ANY OF SUCH
DOCUMENTS IN RELIANCE UPON AND IN CONFORMITY WITH WRITTEN INFORMATION FURNISHED
TO THE COMPANY BY ANY SUCH SELLER SPECIFICALLY FOR USE THEREIN; PROVIDED, THE
LIABILITY OF EACH SUCH SELLER OF REGISTRABLE SECURITIES WILL BE IN PROPORTION
TO, AND WILL BE LIMITED TO, THE NET AMOUNT RECEIVED BY SUCH SELLER FROM THE SALE
OF REGISTRABLE SECURITIES PURSUANT TO SUCH REGISTRATION STATEMENT; PROVIDED,
HOWEVER, THAT SUCH SELLER OF REGISTRABLE SECURITIES SHALL NOT BE LIABLE IN ANY
SUCH CASE TO THE EXTENT THAT PRIOR TO THE FILING OF ANY SUCH REGISTRATION
STATEMENT OR PROSPECTUS OR AMENDMENT THEREOF OR SUPPLEMENT THERETO, SUCH SELLER
HAS FURNISHED IN WRITING TO THE COMPANY INFORMATION EXPRESSLY FOR USE IN SUCH
REGISTRATION STATEMENT OR PROSPECTUS OR ANY AMENDMENT THEREOF OR SUPPLEMENT
THERETO WHICH CORRECTED OR MADE NOT MISLEADING INFORMATION PREVIOUSLY FURNISHED
TO THE COMPANY.
15
INSOFAR AS THE FOREGOING INDEMNITY AGREEMENT MAY PERMIT INDEMNIFICATION FOR
LIABILITIES UNDER THE SECURITIES ACT OF ANY PERSON WHO IS AN UNDERWRITER OR A
PARTNER OR CONTROLLING PERSON OF AN UNDERWRITER WITHIN THE MEANING OF SECTION 15
OF THE SECURITIES ACT AND WHO, AT THE DATE OF THIS AGREEMENT, IS A DIRECTOR,
OFFICER OR CONTROLLING PERSON OF THE COMPANY OR CPE LLC, CPE LLC HAS BEEN
ADVISED THAT IN THE OPINION OF THE SEC SUCH PROVISIONS MAY CONTRAVENE FEDERAL
PUBLIC POLICY AS EXPRESSED IN THE SECURITIES ACT AND MAY THEREFORE BE
UNENFORCEABLE.
IN THE EVENT THAT A CLAIM FOR INDEMNIFICATION UNDER SUCH
AGREEMENT FOR ANY SUCH LIABILITIES (EXCEPT INSOFAR AS SUCH AGREEMENT PROVIDES
FOR THE PAYMENT BY CPE LLC OF EXPENSES INCURRED OR PAID BY A DIRECTOR, OFFICER
OR CONTROLLING PERSON IN THE SUCCESSFUL DEFENSE OF ANY ACTION, SUIT OR
PROCEEDING) IS ASSERTED BY SUCH A PERSON, CPE LLC WILL SUBMIT TO A COURT OF
APPROPRIATE JURISDICTION (UNLESS IN THE OPINION OF COUNSEL FOR CPE LLC THE
MATTER HAS ALREADY BEEN SETTLED BY CONTROLLING PRECEDENT) THE QUESTION OF
WHETHER OR NOT INDEMNIFICATION BY IT FOR SUCH LIABILITIES IS AGAINST PUBLIC
POLICY AS EXPRESSED IN THE SECURITIES ACT AND THEREFORE UNENFORCEABLE, AND CPE
LLC WILL BE GOVERNED BY THE FINAL ADJUDICATION OF SUCH ISSUE.
2.8.2
EACH SELLER OF REGISTRABLE SECURITIES WILL SEVERALLY AND NOT JOINTLY
INDEMNIFY AND HOLD HARMLESS THE COMPANY, EACH OF ITS DIRECTORS AND EACH OF ITS
OFFICERS WHO SIGNS A REGISTRATION STATEMENT AND EACH PERSON, IF ANY, WHO
CONTROLS THE COMPANY WITHIN THE MEANING OF SECTION 15 OF THE SECURITIES ACT OR
SECTION 20 OF THE EXCHANGE ACT AGAINST ANY LOSSES, CLAIMS, DAMAGES OR
LIABILITIES TO WHICH SUCH INDEMNIFIED PARTY MAY BECOME SUBJECT, UNDER THE
SECURITIES ACT, THE EXCHANGE ACT, OR OTHER FEDERAL OR STATE STATUTORY LAW OR
REGULATION OR OTHERWISE, INSOFAR AS SUCH LOSSES, CLAIMS, DAMAGES