UNDER THE
SECURITIES ACT.
Prior to such effectiveness, this Agreement may be terminated by any party by
notice to each of the other parties hereto, and any such termination shall be
without liability on the part of (a) the Company or the Selling Stockholder to
any Underwriter, except that if this Agreement is terminated by the Company or
the Selling Stockholder, the Company and the Selling Stockholder shall be
obligated to reimburse the expenses of the Representatives and the Underwriters
pursuant to Sections 4 and 6 hereof, (b) any Underwriter to the Company or the
Selling Stockholder, or (c) any
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party hereto to any other party except that the provisions of Section 8 and
Section 9 shall at all times be effective and shall survive such termination.
SECTION 8.
INDEMNIFICATION.
(A)
INDEMNIFICATION OF THE UNDERWRITERS BY THE COMPANY.
THE COMPANY AGREES TO
INDEMNIFY AND HOLD HARMLESS EACH UNDERWRITER, ITS OFFICERS AND EMPLOYEES, AND
EACH PERSON, IF ANY, WHO CONTROLS ANY UNDERWRITER WITHIN THE MEANING OF
SECTION 15 OF THE SECURITIES ACT AGAINST ANY LOSS, CLAIM, DAMAGE, LIABILITY OR
EXPENSE, AS INCURRED, TO WHICH SUCH UNDERWRITER OR SUCH CONTROLLING PERSON MAY
BECOME SUBJECT, UNDER THE SECURITIES ACT, THE EXCHANGE ACT OR OTHER FEDERAL OR
STATE STATUTORY LAW OR REGULATION, OR AT COMMON LAW OR OTHERWISE (INCLUDING IN
SETTLEMENT OF ANY LITIGATION, IF SUCH SETTLEMENT IS EFFECTED WITH THE WRITTEN
CONSENT OF THE COMPANY), INSOFAR AS SUCH LOSS, CLAIM, DAMAGE, LIABILITY OR
EXPENSE (OR ACTIONS IN RESPECT THEREOF AS CONTEMPLATED BELOW) ARISES OUT OF OR
IS BASED (I) UPON ANY UNTRUE STATEMENT OR ALLEGED UNTRUE STATEMENT OF A MATERIAL
FACT CONTAINED IN THE REGISTRATION STATEMENT, OR ANY AMENDMENT THERETO,
INCLUDING ANY INFORMATION DEEMED TO BE A PART THEREOF PURSUANT TO RULE 430A
UNDER THE SECURITIES ACT, OR THE OMISSION OR ALLEGED OMISSION THEREFROM OF A
MATERIAL FACT REQUIRED TO BE STATED THEREIN OR NECESSARY TO MAKE THE STATEMENTS
THEREIN NOT MISLEADING; OR (II) UPON ANY UNTRUE STATEMENT OR ALLEGED UNTRUE
STATEMENT OF A MATERIAL FACT CONTAINED IN THE PRELIMINARY PROSPECTUS OR THE
PROSPECTUS (OR ANY AMENDMENT OR SUPPLEMENT THERETO) , OR THE OMISSION OR ALLEGED
OMISSION THEREFROM OF A MATERIAL FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS
THEREIN, IN THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT
MISLEADING; OR (III) IN WHOLE OR IN PART UPON ANY INACCURACY IN THE
REPRESENTATIONS AND WARRANTIES OF EV3 LLC AND THE COMPANY CONTAINED HEREIN; OR
(IV) IN WHOLE OR IN PART UPON ANY FAILURE OF THE COMPANY TO PERFORM ITS
OBLIGATIONS HEREUNDER OR UNDER LAW ; AND TO REIMBURSE EACH UNDERWRITER AND EACH
SUCH CONTROLLING PERSON FOR ANY AND ALL EXPENSES (INCLUDING THE FEES AND
DISBURSEMENTS OF COUNSEL CHOSEN BY PIPER AND BAS) AS SUCH EXPENSES ARE
REASONABLY INCURRED BY SUCH UNDERWRITER OR SUCH CONTROLLING PERSON IN CONNECTION
WITH INVESTIGATING, DEFENDING, SETTLING, COMPROMISING OR PAYING ANY SUCH LOSS,
CLAIM, DAMAGE, LIABILITY, EXPENSE OR ACTION; PROVIDED, HOWEVER, THAT THE
FOREGOING INDEMNITY AGREEMENT SHALL NOT APPLY TO ANY LOSS, CLAIM, DAMAGE,