BASED
UPON AN UNTRUE STATEMENT OR ALLEGED UNTRUE STATEMENT OR OMISSION OR ALLEGED
OMISSION MADE IN RELIANCE UPON AND IN CONFORMITY WITH WRITTEN INFORMATION
FURNISHED TO THE COMPANY BY OR ON BEHALF OF THE HOLDER EXPRESSLY FOR USE
THEREIN.
(2)
INDEMNIFICATION BY HOLDERS.
EACH HOLDER, SEVERALLY AND NOT JOINTLY,
SHALL INDEMNIFY AND HOLD HARMLESS THE COMPANY, ANY UNDERWRITER RETAINED BY THE
COMPANY, EACH OTHER HOLDER, THEIR RESPECTIVE DIRECTORS, OFFICERS AND EACH PERSON
WHO CONTROLS THE COMPANY, SUCH OTHER HOLDERS OR SUCH UNDERWRITER (WITHIN THE
MEANING OF SECTION 15 OF THE SECURITIES ACT) FROM AND AGAINST ANY AND ALL
LIABILITIES ARISING OUT OF OR BASED UPON (I) ANY UNTRUE STATEMENT OR ALLEGED
UNTRUE STATEMENT OF A MATERIAL FACT CONTAINED IN THE DISCLOSURE PACKAGE, ANY
HOLDER FREE WRITING PROSPECTUS OR THE SHELF REGISTRATION STATEMENT (INCLUDING IN
ANY PROSPECTUS OR ANY AMENDMENT OR SUPPLEMENT THERETO), AND (II) THE OMISSION OR
ALLEGED OMISSION TO STATE IN THE DISCLOSURE PACKAGE, ANY HOLDER FREE WRITING
PROSPECTUS OR THE SHELF REGISTRATION STATEMENT (INCLUDING IN ANY PROSPECTUS OR
ANY AMENDMENT OR SUPPLEMENT THERETO) ANY MATERIAL FACT REQUIRED TO BE STATED
THEREIN OR NECESSARY TO MAKE THE STATEMENTS THEREIN NOT MISLEADING, IN EACH
CASE, TO THE EXTENT SUCH LIABILITIES ARISE OUT OF OR ARE BASED UPON WRITTEN
INFORMATION FURNISHED BY SUCH HOLDER OR ON SUCH HOLDER'S BEHALF EXPRESSLY FOR
INCLUSION THEREIN; PROVIDED THAT THE TOTAL AMOUNT TO BE INDEMNIFIED BY SUCH
HOLDER PURSUANT TO THIS SECTION 3.5(G) SHALL BE LIMITED TO THE NET PROCEEDS
(AFTER DEDUCTING THE UNDERWRITERS' DISCOUNTS AND COMMISSIONS) RECEIVED BY SUCH
HOLDER IN THE OFFERING TO WHICH THE SHELF REGISTRATION STATEMENT, DISCLOSURE
PACKAGE OR HOLDER FREE WRITING PROSPECTUS RELATES.
(3)
CONDUCT OF INDEMNIFICATION PROCEEDINGS .
ANY PERSON ENTITLED TO
INDEMNIFICATION HEREUNDER (THE "INDEMNIFIED PERSON") SHALL GIVE PROMPT WRITTEN
NOTICE TO THE INDEMNIFYING PARTY (THE "INDEMNIFYING PERSON") AFTER THE RECEIPT
BY THE INDEMNIFIED PERSON OF ANY WRITTEN NOTICE OF THE COMMENCEMENT OF ANY
ACTION, SUIT, PROCEEDING OR INVESTIGATION OR THREAT THEREOF MADE IN WRITING FOR
WHICH THE INDEMNIFIED PERSON INTENDS TO CLAIM INDEMNIFICATION OR CONTRIBUTION
PURSUANT TO THIS AGREEMENT; PROVIDED, HOWEVER,
19
THAT THE FAILURE TO SO NOTIFY THE INDEMNIFYING PERSON SHALL NOT RELIEVE THE
INDEMNIFYING PERSON OF ANY LIABILITY THAT IT MAY HAVE TO THE INDEMNIFIED PERSON
HEREUNDER (EXCEPT TO THE EXTENT THAT THE INDEMNIFYING PERSON FORFEITS
SUBSTANTIVE RIGHTS OR DEFENSES BY REASON OF SUCH FAILURE).
IF NOTICE OF
COMMENCEMENT OF ANY SUCH ACTION IS GIVEN TO THE INDEMNIFYING PERSON AS ABOVE
PROVIDED, THE INDEMNIFYING PERSON SHALL BE ENTITLED TO PARTICIPATE IN AND, TO
THE EXTENT IT MAY WISH, JOINTLY WITH ANY OTHER INDEMNIFYING PERSON SIMILARLY
NOTIFIED, TO ASSUME THE DEFENSE OF SUCH ACTION AT ITS OWN EXPENSE, WITH COUNSEL
CHOSEN BY IT AND REASONABLY SATISFACTORY TO SUCH INDEMNIFIED PERSON.
THE
INDEMNIFIED PERSON SHALL HAVE THE RIGHT TO EMPLOY SEPARATE COUNSEL IN ANY SUCH
ACTION AND PARTICIPATE IN THE DEFENSE THEREOF, BUT THE FEES AND EXPENSES OF SUCH
COUNSEL SHALL BE PAID BY THE INDEMNIFIED PERSON UNLESS (I) THE INDEMNIFYING
PERSON AGREES TO PAY THE