THE COMPANY, EACH OF ITS DIRECTORS AND OFFICERS, EACH
LEGAL COUNSEL AND INDEPENDENT ACCOUNTANT OF THE COMPANY, EACH PERSON WHO
CONTROLS THE COMPANY WITHIN THE MEANING OF THE SECURITIES ACT, ANY UNDERWRITER,
AND EACH OTHER INVESTOR, AGAINST ALL CLAIMS, LOSSES, DAMAGES AND LIABILITIES (OR
ACTIONS IN RESPECT THEREOF) ARISING OUT OF OR BASED ON (A) ANY UNTRUE STATEMENT
(OR ALLEGED UNTRUE STATEMENT) OF A MATERIAL FACT CONTAINED IN ANY SUCH
REGISTRATION STATEMENT, PROSPECTUS, OFFERING CIRCULAR OR OTHER SIMILAR DOCUMENT,
OR ANY OMISSION (OR ALLEGED OMISSION) TO STATE THEREIN A MATERIAL FACT REQUIRED
TO BE STATED THEREIN OR NECESSARY TO MAKE THE STATEMENTS THEREIN NOT MISLEADING
IN THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, AND WILL REIMBURSE
THE COMPANY, SUCH DIRECTORS, AND OFFICERS, CONTROL PERSONS, UNDERWRITER AND EACH
OTHER INVESTOR FOR ANY LEGAL OR ANY OTHER EXPENSES REASONABLY INCURRED IN
CONNECTION WITH INVESTIGATING OR DEFENDING ANY SUCH CLAIM, LOSS, DAMAGE,
LIABILITY OR ACTION, AS INCURRED, IN EACH CASE TO THE EXTENT, BUT ONLY TO THE
EXTENT, THAT SUCH UNTRUE STATEMENT (OR ALLEGED UNTRUE STATEMENT) OR OMISSION (OR
ALLEGED OMISSION) IS MADE IN SUCH REGISTRATION STATEMENT, PROSPECTUS, OFFERING
CIRCULAR OR OTHER DOCUMENT IN RELIANCE UPON AND IN CONFORMITY WITH WRITTEN
INFORMATION FURNISHED IN WRITING TO THE COMPANY BY AN INSTRUMENT DULY EXECUTED
BY SUCH INVESTOR AND STATED TO BE SPECIFICALLY FOR USE THEREIN OR FURNISHED BY
SUCH INVESTOR TO THE COMPANY IN RESPONSE TO A REQUEST BY THE COMPANY STATING
SPECIFICALLY THAT SUCH INFORMATION WILL BE USED BY THE COMPANY THEREIN; OR (B)
ANY BREACH OF ANY REPRESENTATION OR WARRANTY OF SUCH INVESTOR IN THIS
AGREEMENT.
NOTWITHSTANDING THE FOREGOING, THE INDEMNITY AGREEMENT PROVIDED IN
THIS SECTION 7 SHALL NOT APPLY TO AMOUNTS PAID IN SETTLEMENT OF ANY SUCH LOSS,
CLAIM, DAMAGE, LIABILITY OR ACTION IF SUCH SETTLEMENT IS EFFECTED WITHOUT THE
WRITTEN CONSENT OF THE INVESTOR, WHICH CONSENT SHALL NOT BE UNREASONABLY
WITHHELD. IN NO EVENT SHALL AN INVESTOR'S INDEMNIFICATION OBLIGATION EXCEED THE
NET PROCEEDS RECEIVED FROM ITS SALE OF SHARES IN SUCH OFFERING.
19
7.3
Notification; Procedure.
(a) Each party entitled to indemnification under this Section 7 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has received written notice of any claim as to which indemnity may be sought,
and shall permit the Indemnifying Party to assume the defense of any such claim
or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not be
unreasonably withheld). The Indemnified Party may participate in such defense at
such party's expense; provided, however, that the Indemnifying Party shall bear
the expense of such defense of the Indemnified Party if representation of both
parties by the same counsel would be inappropriate due to actual or potential
conflicts of interest. The failure of any Indemnified Party to give notice
within a reasonable period of time as