COMPANY HAS NOTIFIED SUCH HOLDER IN WRITING THAT THE
PROSPECTUS IS OUTDATED OR DEFECTIVE AND PRIOR TO THE RECEIPT BY SUCH HOLDER OF
THE ADVICE CONTEMPLATED AND DEFINED IN SECTION 6(C) BELOW, BUT ONLY IF AND TO
THE EXTENT THAT FOLLOWING THE RECEIPT OF THE ADVICE THE MISSTATEMENT OR OMISSION
GIVING RISE TO SUCH LOSS WOULD HAVE BEEN CORRECTED OR (C) ANY SUCH LOSSES ARISE
OUT OF THE PURCHASER'S (OR ANY OTHER INDEMNIFIED PERSON'S) FAILURE TO SEND OR
GIVE A COPY OF THE PROSPECTUS OR SUPPLEMENT (AS THEN AMENDED OR SUPPLEMENTED),
IF REQUIRED, TO THE PERSONS ASSERTING AN UNTRUE STATEMENT OR ALLEGED UNTRUE
STATEMENT OR ALLEGED UNTRUE STATEMENT OR OMISSION OR ALLEGED OMISSION AT OR
PRIOR TO THE WRITTEN CONFIRMATION OF THE SALE OF REGISTRABLE SECURITIES TO SUCH
PERSON IF SUCH STATEMENT OR OMISSION WAS CORRECTED IN SUCH PROSPECTUS OR
SUPPLEMENT.
THE COMPANY SHALL NOTIFY THE HOLDERS PROMPTLY OF THE INSTITUTION,
THREAT OR ASSERTION OF ANY PROCEEDING ARISING FROM OR IN CONNECTION
11
WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OF WHICH THE COMPANY IS
AWARE.
SUCH INDEMNITY SHALL REMAIN IN FULL FORCE AND EFFECT REGARDLESS OF ANY
INVESTIGATION MADE BY OR ON BEHALF OF AN INDEMNIFIED PARTY (AS DEFINED IN
SECTION 5(C)) AND SHALL SURVIVE THE TRANSFER OF THE REGISTRABLE SECURITIES BY
THE HOLDERS.
(B)
INDEMNIFICATION BY HOLDERS. EACH HOLDER
SHALL, SEVERALLY AND NOT JOINTLY, INDEMNIFY AND HOLD HARMLESS THE COMPANY, ITS
DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES, EACH PERSON WHO CONTROLS THE COMPANY
(WITHIN THE MEANING OF SECTION 15 OF THE SECURITIES ACT AND SECTION 20 OF THE
EXCHANGE ACT), AND THE DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES OF SUCH
CONTROLLING PERSONS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FROM AND
AGAINST ALL LOSSES, AS INCURRED, ARISING OUT OF OR ARE BASED UPON ANY UNTRUE OR
ALLEGED UNTRUE STATEMENT OF A MATERIAL FACT CONTAINED IN ANY REGISTRATION
STATEMENT, ANY PROSPECTUS, OR ANY FORM OF PROSPECTUS, OR IN ANY AMENDMENT OR
SUPPLEMENT THERETO OR IN ANY PRELIMINARY PROSPECTUS, OR ARISING OUT OF OR
RELATING TO ANY OMISSION OR ALLEGED OMISSION OF A MATERIAL FACT REQUIRED TO BE
STATED THEREIN OR NECESSARY TO MAKE THE STATEMENTS THEREIN (IN THE CASE OF ANY
PROSPECTUS, OR ANY FORM OF PROSPECTUS OR SUPPLEMENT THERETO, IN LIGHT OF THE
CIRCUMSTANCES UNDER WHICH THEY WERE MADE) NOT MISLEADING (I) TO THE EXTENT, BUT
ONLY TO THE EXTENT, THAT SUCH UNTRUE STATEMENTS OR OMISSIONS ARE BASED SOLELY
UPON INFORMATION REGARDING SUCH HOLDER FURNISHED IN WRITING TO THE COMPANY BY
SUCH HOLDER EXPRESSLY FOR USE THEREIN OR (II) TO THE EXTENT, BUT ONLY TO THE
EXTENT, THAT SUCH INFORMATION RELATES TO SUCH HOLDER OR SUCH HOLDER'S PROPOSED
METHOD OF DISTRIBUTION OF REGISTRABLE SECURITIES AND WAS REVIEWED AND APPROVED
BY SUCH HOLDER EXPRESSLY FOR USE IN A REGISTRATION STATEMENT (IT BEING
UNDERSTOOD THAT THE HOLDER HAS APPROVED ANNEX A HERETO FOR THIS PURPOSE), SUCH
PROSPECTUS OR SUCH FORM OF PROSPECTUS OR IN ANY AMENDMENT OR SUPPLEMENT THERETO
OR (III) IN THE CASE OF AN OCCURRENCE OF AN EVENT