OF LEGAL COUNSEL, THE COMPANY SHALL REIMBURSE EACH INVESTOR AND EACH OTHER
INVESTOR INDEMNIFIED PERSON, PROMPTLY AS SUCH EXPENSES ARE INCURRED AND ARE DUE
AND PAYABLE, FOR ANY REASONABLE LEGAL FEES OR OTHER REASONABLE EXPENSES INCURRED
BY THEM IN CONNECTION WITH INVESTIGATING OR DEFENDING ANY SUCH CLAIM.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE INDEMNIFICATION
AGREEMENT CONTAINED IN THIS SECTION 7(A): (X) SHALL NOT APPLY TO A CLAIM ARISING
OUT OF OR BASED UPON A VIOLATION THAT OCCURS IN RELIANCE UPON AND IN CONFORMITY
WITH INFORMATION FURNISHED IN WRITING TO THE COMPANY BY SUCH INVESTOR
INDEMNIFIED PERSON EXPRESSLY FOR USE IN THE REGISTRATION STATEMENT OR ANY SUCH
AMENDMENT THEREOF OR SUPPLEMENT THERETO; (Y) SHALL NOT APPLY TO AMOUNTS PAID IN
SETTLEMENT OF ANY CLAIM IF SUCH SETTLEMENT IS EFFECTED WITHOUT THE PRIOR WRITTEN
CONSENT OF THE COMPANY, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD; AND
(Z) WITH RESPECT TO ANY PRELIMINARY PROSPECTUS, SHALL NOT INURE TO THE BENEFIT
OF ANY INVESTOR INDEMNIFIED PERSON IF THE UNTRUE STATEMENT OR OMISSION OF
MATERIAL FACT CONTAINED IN THE PRELIMINARY PROSPECTUS WAS CORRECTED ON A TIMELY
BASIS IN THE PROSPECTUS, AS THEN AMENDED OR SUPPLEMENTED, IF SUCH CORRECTED
PROSPECTUS WAS TIMELY MADE AVAILABLE BY THE COMPANY PURSUANT TO SECTION 3(C)
HEREOF, AND THE INVESTOR INDEMNIFIED PERSON WAS PROMPTLY ADVISED IN WRITING NOT
TO USE THE INCORRECT PROSPECTUS PRIOR TO THE USE GIVING RISE TO A VIOLATION AND
SUCH INVESTOR INDEMNIFIED PERSON, NOTWITHSTANDING SUCH ADVICE, USED IT.
SUCH
INDEMNITY SHALL REMAIN IN FULL FORCE AND EFFECT REGARDLESS OF ANY
11
INVESTIGATION MADE BY OR ON BEHALF OF THE INVESTOR INDEMNIFIED PERSON AND SHALL
SURVIVE THE TRANSFER OF THE REGISTRABLE SECURITIES BY THE INVESTORS PURSUANT TO
SECTION 10 HEREOF.
(B)
IN CONNECTION WITH ANY REGISTRATION
STATEMENT IN WHICH REGISTRABLE SECURITIES HELD BY AN INVESTOR ARE INCLUDED, (I)
EACH SUCH INVESTOR SHALL, SEVERALLY AND NOT JOINTLY, INDEMNIFY, HOLD HARMLESS
AND DEFEND, TO THE SAME EXTENT AND IN THE SAME MANNER SET FORTH IN SECTION 7(A),
THE COMPANY, EACH OF ITS DIRECTORS, EACH OF ITS OFFICERS WHO SIGNS THE
REGISTRATION STATEMENT, ITS EMPLOYEES AND EACH PERSON, IF ANY, WHO CONTROLS THE
COMPANY WITHIN THE MEANING OF SECTION 15 OF THE SECURITIES ACT OR SECTION 20 OF
THE EXCHANGE ACT, AND ANY OTHER STOCKHOLDER SELLING SECURITIES PURSUANT TO THE
REGISTRATION STATEMENT OR ANY OF ITS DIRECTORS OR OFFICERS OR ANY PERSON WHO
CONTROLS SUCH STOCKHOLDER WITHIN THE MEANING OF THE SECURITIES ACT OR THE
EXCHANGE ACT (EACH, A "COMPANY INDEMNIFIED PERSON"), AGAINST ANY CLAIMS TO WHICH
ANY OF THEM MAY BECOME SUBJECT INSOFAR AS SUCH CLAIMS ARISE OUT OF OR ARE BASED
UPON ANY VIOLATION, IN EACH CASE TO THE EXTENT (AND ONLY TO THE EXTENT) THAT
SUCH VIOLATION OCCURS IN RELIANCE UPON AND IN CONFORMITY WITH WRITTEN
INFORMATION FURNISHED TO THE COMPANY BY SUCH INVESTOR EXPRESSLY FOR USE IN
CONNECTION WITH SUCH REGISTRATION STATEMENT; AND (II) SUBJECT TO THE
RESTRICTIONS SET FORTH IN SECTION 7(C), SUCH INVESTOR SHALL REIMBURSE THE
COMPANY INDEMNIFIED PERSONS, PROMPTLY AS SUCH