USE
IN CONNECTION WITH THE PREPARATION OF THE REGISTRATION STATEMENT OR ANY SUCH
AMENDMENT THEREOF OR SUPPLEMENT THERETO, IF SUCH PROSPECTUS WAS TIMELY MADE
AVAILABLE BY THE COMPANY PURSUANT TO SECTION 3(D); (II) WITH RESPECT TO ANY
PRELIMINARY PROSPECTUS, SHALL NOT INURE TO THE BENEFIT OF ANY SUCH PERSON FROM
WHOM THE PERSON ASSERTING ANY SUCH CLAIM PURCHASED THE REGISTRABLE SECURITIES
THAT ARE THE SUBJECT THEREOF (OR TO THE BENEFIT OF ANY PERSON CONTROLLING SUCH
PERSON) IF THE UNTRUE STATEMENT OR OMISSION OF MATERIAL FACT CONTAINED IN THE
PRELIMINARY PROSPECTUS WAS CORRECTED IN THE PROSPECTUS, AS THEN AMENDED OR
SUPPLEMENTED AND IF SUCH PROSPECTUS WAS TIMELY MADE AVAILABLE BY THE COMPANY
PURSUANT TO SECTION 3(D), AND THE INDEMNIFIED PERSON WAS PROMPTLY ADVISED IN
WRITING NOT TO USE THE INCORRECT PROSPECTUS PRIOR TO THE USE GIVING RISE TO A
VIOLATION AND SUCH INDEMNIFIED PERSON, NOTWITHSTANDING SUCH ADVICE, USED IT OR
FAILED TO DELIVER THE CORRECT PROSPECTUS AS REQUIRED BY THE 1933 ACT; (III)
SHALL NOT BE AVAILABLE TO THE EXTENT SUCH CLAIM IS BASED ON A FAILURE OF THE
INVESTOR TO DELIVER OR TO CAUSE TO BE DELIVERED THE PROSPECTUS MADE AVAILABLE BY
THE COMPANY, INCLUDING A CORRECTED PROSPECTUS, IF SUCH PROSPECTUS OR CORRECTED
PROSPECTUS WAS TIMELY MADE AVAILABLE BY THE COMPANY PURSUANT TO SECTION 3(D);
AND (IV) 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 OR DELAYED.
SUCH INDEMNITY SHALL
REMAIN IN FULL FORCE AND EFFECT REGARDLESS OF ANY INVESTIGATION MADE BY OR ON
BEHALF OF THE INDEMNIFIED PERSON AND SHALL SURVIVE THE TRANSFER OF THE
REGISTRABLE SECURITIES BY THE INVESTORS PURSUANT TO SECTION 9.
(B)
IN CONNECTION WITH ANY REGISTRATION
STATEMENT IN WHICH AN INVESTOR IS PARTICIPATING, EACH SUCH INVESTOR AGREES TO
SEVERALLY AND NOT JOINTLY INDEMNIFY, HOLD
12
HARMLESS AND DEFEND, TO THE SAME EXTENT AND IN THE SAME MANNER AS IS SET FORTH
IN SECTION 6(A), THE COMPANY, EACH OF ITS DIRECTORS, EACH OF ITS OFFICERS WHO
SIGNS THE REGISTRATION STATEMENT AND EACH PERSON, IF ANY, WHO CONTROLS THE
COMPANY WITHIN THE MEANING OF THE 1933 ACT OR THE 1934 ACT (EACH, AN
"INDEMNIFIED PARTY"), AGAINST ANY CLAIM OR INDEMNIFIED DAMAGES TO WHICH ANY OF
THEM MAY BECOME SUBJECT, UNDER THE 1933 ACT, THE 1934 ACT OR OTHERWISE, INSOFAR
AS SUCH CLAIM OR INDEMNIFIED DAMAGES 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 OR ANY POST-EFFECTIVE AMENDMENT THEREOF; AND,
SUBJECT TO SECTION 6(C), SUCH INVESTOR PROMPTLY WILL REIMBURSE ANY LEGAL OR
OTHER EXPENSES REASONABLY INCURRED BY AN INDEMNIFIED PARTY IN CONNECTION WITH
INVESTIGATING OR DEFENDING ANY SUCH CLAIM; PROVIDED, HOWEVER, THAT THE INDEMNITY
AGREEMENT CONTAINED IN THIS SECTION 6(B) AND THE AGREEMENT