SAME, (II) THE INDEMNIFYING PERSON FAILS TO ASSUME THE
DEFENSE OF SUCH ACTION WITH COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED
PERSON OR (III) THE NAMED PARTIES TO ANY SUCH ACTION (INCLUDING ANY IMPLEADED
PARTIES) INCLUDE BOTH THE INDEMNIFYING PERSON AND THE INDEMNIFIED PERSON AND
SUCH PARTIES HAVE BEEN ADVISED BY SUCH COUNSEL THAT EITHER (A) REPRESENTATION OF
SUCH INDEMNIFIED PERSON AND THE INDEMNIFYING PERSON BY THE SAME COUNSEL WOULD BE
INAPPROPRIATE UNDER APPLICABLE STANDARDS OF PROFESSIONAL CONDUCT OR (B) THERE
MAY BE ONE OR MORE LEGAL DEFENSES AVAILABLE TO THE INDEMNIFIED PERSON THAT ARE
DIFFERENT FROM OR ADDITIONAL TO THOSE AVAILABLE TO THE INDEMNIFYING PERSON, IN
WHICH CASE THE INDEMNIFYING PERSON SHALL NOT BE LIABLE FOR THE FEES AND EXPENSES
OF MORE THAN ONE SEPARATE FIRM OF ATTORNEYS (IN ADDITION TO ANY LOCAL COUNSEL)
FOR ALL INDEMNIFIED PERSONS.
NO INDEMNIFYING PERSON SHALL BE LIABLE FOR ANY
SETTLEMENT ENTERED INTO WITHOUT ITS WRITTEN CONSENT, WHICH CONSENT SHALL NOT BE
UNREASONABLY WITHHELD.
NO INDEMNIFYING PERSON SHALL, WITHOUT THE WRITTEN
CONSENT OF SUCH INDEMNIFIED PERSON, EFFECT ANY SETTLEMENT OF ANY PENDING OR
THREATENED PROCEEDING IN RESPECT OF WHICH SUCH INDEMNIFIED PERSON IS A PARTY AND
INDEMNITY HAS BEEN SOUGHT HEREUNDER BY SUCH INDEMNIFIED PERSON, UNLESS SUCH
SETTLEMENT INCLUDES AN UNCONDITIONAL RELEASE OF SUCH INDEMNIFIED PERSON FROM ALL
LIABILITY FOR CLAIMS THAT ARE THE SUBJECT MATTER OF SUCH PROCEEDING.
(4)
CONTRIBUTION.
IF THE INDEMNIFICATION PROVIDED FOR IN THIS
SECTION 3.5(G) FROM THE INDEMNIFYING PERSON IS UNAVAILABLE TO AN INDEMNIFIED
PERSON HEREUNDER IN RESPECT OF ANY LIABILITIES REFERRED TO HEREIN, THEN THE
INDEMNIFYING PERSON, IN LIEU OF INDEMNIFYING SUCH INDEMNIFIED PERSON, SHALL
CONTRIBUTE TO THE AMOUNT PAID OR PAYABLE BY SUCH INDEMNIFIED PERSON AS A RESULT
OF SUCH LIABILITIES IN SUCH PROPORTION AS IS APPROPRIATE TO REFLECT THE RELATIVE
FAULT OF THE INDEMNIFYING PERSON AND INDEMNIFIED PERSON IN CONNECTION WITH THE
ACTIONS WHICH RESULTED IN SUCH LIABILITIES, AS WELL AS ANY OTHER RELEVANT
EQUITABLE CONSIDERATIONS.
THE RELATIVE FAULT OF SUCH INDEMNIFYING PERSON AND
INDEMNIFIED PERSON SHALL BE DETERMINED BY REFERENCE TO, AMONG OTHER THINGS,
WHETHER ANY ACTION IN QUESTION, INCLUDING ANY UNTRUE OR ALLEGED UNTRUE STATEMENT
OF A MATERIAL FACT OR OMISSION OR ALLEGED OMISSION TO STATE A MATERIAL FACT, HAS
BEEN MADE BY, OR RELATES TO INFORMATION SUPPLIED BY, SUCH INDEMNIFYING PERSON OR
INDEMNIFIED PERSON, AND THE PARTIES' RELATIVE INTENT, KNOWLEDGE, ACCESS TO
INFORMATION AND OPPORTUNITY TO CORRECT OR PREVENT SUCH ACTION.
THE AMOUNT PAID
OR PAYABLE BY A PARTY AS A RESULT OF THE LIABILITIES REFERRED TO ABOVE SHALL BE
DEEMED TO INCLUDE, SUBJECT TO THE LIMITATIONS SET FORTH IN THE FOREGOING
PROVISIONS OF THIS SECTION 3.5(G), ANY LEGAL OR OTHER FEES, CHARGES OR EXPENSES
REASONABLY INCURRED BY SUCH PARTY IN CONNECTION WITH ANY INVESTIGATION OR
PROCEEDING; PROVIDED, THAT THE TOTAL AMOUNT TO BE CONTRIBUTED BY SUCH HOLDER
SHALL BE LIMITED TO THE NET PROCEEDS (AFTER DEDUCTING THE
20
UNDERWRITERS' DISCOUNTS AND COMMISSIONS) RECEIVED BY SUCH HOLDER IN THE
OFFERING.
THE PARTIES HERETO AGREE THAT IT WOULD NOT BE JUST AND EQUITABLE