WHICH THEY WERE MADE, NOT MISLEADING, BUT IN EACH CASE ONLY
TO THE EXTENT THAT THE UNTRUE STATEMENT OR OMISSION OR ALLEGED UNTRUE STATEMENT
OR OMISSION WAS MADE IN RELIANCE UPON AND IN CONFORMITY WITH WRITTEN INFORMATION
PERTAINING TO SUCH HOLDER AND FURNISHED TO THE COMPANY BY OR ON BEHALF OF SUCH
HOLDER SPECIFICALLY FOR INCLUSION THEREIN; AND, SUBJECT TO THE LIMITATION SET
FORTH IMMEDIATELY PRECEDING THIS CLAUSE, SHALL REIMBURSE, AS INCURRED, THE
COMPANY FOR ANY LEGAL OR OTHER EXPENSES REASONABLY INCURRED BY THE COMPANY OR
ANY SUCH CONTROLLING PERSON IN CONNECTION WITH INVESTIGATING OR DEFENDING ANY
LOSS, CLAIM, DAMAGE, LIABILITY OR ACTION IN RESPECT THEREOF. THIS INDEMNITY
AGREEMENT WILL BE IN ADDITION TO ANY LIABILITY WHICH SUCH HOLDER MAY OTHERWISE
HAVE TO THE COMPANY OR ANY OF ITS CONTROLLING PERSONS.
(C)
PROMPTLY AFTER RECEIPT BY AN INDEMNIFIED PARTY UNDER THIS SECTION 5 OF
NOTICE OF THE COMMENCEMENT OF ANY ACTION OR PROCEEDING (INCLUDING A GOVERNMENTAL
INVESTIGATION), SUCH INDEMNIFIED PARTY WILL, IF A CLAIM IN RESPECT THEREOF IS TO
BE MADE AGAINST THE INDEMNIFYING PARTY UNDER THIS SECTION 5, NOTIFY THE
INDEMNIFYING PARTY OF THE COMMENCEMENT THEREOF; BUT THE OMISSION SO TO NOTIFY
THE INDEMNIFYING PARTY WILL NOT, IN ANY EVENT, RELIEVE THE INDEMNIFYING PARTY
FROM ANY OBLIGATIONS TO ANY INDEMNIFIED PARTY UNDER THIS SECTION 5 EXCEPT TO THE
EXTENT THAT IT HAS BEEN MATERIALLY PREJUDICED (THROUGH THE FORFEITURE OF
SUBSTANTIVE RIGHTS OR DEFENSES) BY SUCH FAILURE; AND THE FAILURE TO NOTIFY THE
INDEMNIFYING PARTY SHALL NOT RELIEVE IT FROM ANY LIABILITY WHICH IT MAY HAVE TO
AN INDEMNIFIED PARTY OTHER THAN THE INDEMNIFICATION OBLIGATION PROVIDED IN
PARAGRAPH (A) OR (B) ABOVE.
IN CASE ANY SUCH ACTION IS BROUGHT AGAINST ANY
INDEMNIFIED PARTY, AND IT NOTIFIES THE INDEMNIFYING PARTY OF THE COMMENCEMENT
THEREOF, THE INDEMNIFYING PARTY WILL BE ENTITLED TO PARTICIPATE THEREIN AND, TO
THE EXTENT THAT IT MAY WISH, JOINTLY WITH ANY OTHER INDEMNIFYING PARTY SIMILARLY
NOTIFIED, TO ASSUME THE DEFENSE THEREOF, WITH COUNSEL REASONABLY SATISFACTORY TO
SUCH INDEMNIFIED PARTY (WHO SHALL NOT, EXCEPT WITH THE CONSENT OF THE
INDEMNIFIED PARTY, BE COUNSEL TO THE INDEMNIFYING PARTY), AND AFTER NOTICE FROM
THE INDEMNIFYING PARTY TO SUCH INDEMNIFIED PARTY OF ITS ELECTION SO TO ASSUME
THE DEFENSE THEREOF THE INDEMNIFYING PARTY WILL NOT BE LIABLE TO SUCH
INDEMNIFIED PARTY UNDER THIS SECTION 5 FOR ANY LEGAL OR OTHER EXPENSES, OTHER
THAN REASONABLE COSTS OF INVESTIGATION, SUBSEQUENTLY INCURRED BY SUCH
INDEMNIFIED PARTY IN CONNECTION WITH THE DEFENSE THEREOF. IN ANY SUCH
PROCEEDING, ANY INDEMNIFIED PARTY SHALL HAVE THE RIGHT TO RETAIN ITS OWN
COUNSEL, BUT THE FEES AND EXPENSES OF SUCH COUNSEL SHALL BE AT THE EXPENSE OF
SUCH INDEMNIFIED PARTY UNLESS (I) THE INDEMNIFYING PARTY AND THE INDEMNIFIED
PARTY SHALL HAVE MUTUALLY AGREED TO THE CONTRARY; (II) THE INDEMNIFYING PARTY
HAS FAILED WITHIN A REASONABLE TIME TO RETAIN COUNSEL REASONABLY SATISFACTORY TO
THE INDEMNIFIED PARTY; (III) THE INDEMNIFIED PARTY SHALL HAVE REASONABLY
CONCLUDED THAT THERE MAY BE LEGAL DEFENSES AVAILABLE TO IT THAT ARE DIFFERENT
FROM OR IN ADDITION TO