LIABLE IN ANY SUCH CASE TO
THE EXTENT THAT SUCH LOSS, CLAIM, DAMAGE OR LIABILITY ARISES OUT OF OR IS BASED
UPON ANY UNTRUE STATEMENT OR ALLEGED UNTRUE STATEMENT OR OMISSION OR ALLEGED
OMISSION MADE IN A REGISTRATION STATEMENT OR PROSPECTUS OR IN ANY AMENDMENT OR
SUPPLEMENT THERETO OR IN ANY PRELIMINARY PROSPECTUS RELATING TO A SHELF
REGISTRATION IN RELIANCE UPON AND IN CONFORMITY WITH WRITTEN INFORMATION
PERTAINING TO SUCH HOLDER OR THE MARKET MAKERS (THE "MARKET-MAKER INFORMATION"),
RESPECTIVELY, AND FURNISHED TO THE COMPANY BY OR ON BEHALF OF SUCH HOLDER OR
SUCH MARKET MAKER, RESPECTIVELY, SPECIFICALLY FOR INCLUSION THEREIN AND
(II) WITH RESPECT TO ANY UNTRUE STATEMENT OR OMISSION OR ALLEGED UNTRUE
STATEMENT OR OMISSION MADE IN ANY PRELIMINARY PROSPECTUS RELATING TO A SHELF
REGISTRATION STATEMENT, THE INDEMNITY AGREEMENT CONTAINED IN THIS SUBSECTION (A)
SHALL NOT INURE TO THE BENEFIT OF ANY HOLDER (INCLUDING EACH MARKET-MAKER) OR
PARTICIPATING BROKER-DEALER FROM WHOM THE PERSON ASSERTING ANY SUCH LOSSES,
CLAIMS, DAMAGES OR LIABILITIES PURCHASED THE SECURITIES CONCERNED, TO THE EXTENT
THAT A PROSPECTUS RELATING TO SUCH SECURITIES WAS REQUIRED TO BE DELIVERED BY
SUCH HOLDER OR PARTICIPATING BROKER-DEALER UNDER THE SECURITIES ACT IN
CONNECTION WITH SUCH PURCHASE AND ANY SUCH LOSS, CLAIM, DAMAGE OR LIABILITY OF
SUCH HOLDER OR PARTICIPATING BROKER-DEALER RESULTS FROM THE FACT THAT THERE WAS
NOT SENT OR GIVEN TO SUCH PERSON, AT OR PRIOR TO THE WRITTEN CONFIRMATION OF THE
SALE OF SUCH SECURITIES TO SUCH PERSON, A COPY OF THE FINAL PROSPECTUS IF THE
COMPANY HAD PREVIOUSLY FURNISHED COPIES THEREOF TO SUCH HOLDER OR PARTICIPATING
BROKER-DEALER; AND (Y) EACH MARKET-MAKER FROM AND AGAINST ANY AND ALL LOSSES,
CLAIMS, DAMAGES AND LIABILITIES (INCLUDING WITHOUT LIMITATION, LEGAL FEES AND
OTHER EXPENSES INCURRED IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING OR ANY
CLAIM ASSERTED, AS SUCH FEES AND EXPENSE ARE INCURRED), THAT ARISE OUT OF, OR
BASED UPON, ANY BREACH OF THE COMPANY OF ITS REPRESENTATIONS AND WARRANTIES AND
AGREEMENTS AND CONTAINED IN SECTION 4 OF THIS AGREEMENT; PROVIDED FURTHER,
HOWEVER, THAT THIS INDEMNITY AGREEMENT WILL BE IN ADDITION TO ANY LIABILITY
WHICH THE COMPANY MAY OTHERWISE HAVE TO SUCH INDEMNIFIED PARTY.
THE COMPANY
SHALL ALSO INDEMNIFY UNDERWRITERS, THEIR OFFICERS AND DIRECTORS AND EACH PERSON
WHO CONTROLS SUCH UNDERWRITERS WITHIN THE MEANING OF THE SECURITIES ACT OR THE
EXCHANGE ACT TO THE SAME EXTENT AS PROVIDED ABOVE WITH RESPECT TO THE
INDEMNIFICATION OF THE HOLDERS OF THE SECURITIES IF REQUESTED BY SUCH HOLDERS IN
CONNECTION WITH ANY REGISTRATION STATEMENT INVOLVING AN UNDERWRITTEN PUBLIC
OFFERING.
16
(B)
EACH HOLDER OF THE SECURITIES (INCLUDING EACH MARKET-MAKER), SEVERALLY AND
NOT JOINTLY, WILL INDEMNIFY AND HOLD HARMLESS THE COMPANY AND EACH PERSON, IF
ANY, WHO CONTROLS THE COMPANY WITHIN THE MEANING OF THE SECURITIES ACT OR THE
EXCHANGE ACT FROM AND AGAINST ANY LOSSES, CLAIMS, DAMAGES OR LIABILITIES OR ANY
ACTIONS IN RESPECT THEREOF, TO WHICH THE COMPANY OR ANY SUCH CONTROLLING PERSON
MAY BECOME SUBJECT UNDER THE SECURITIES ACT, THE EXCHANGE ACT OR OTHERWISE,
INSOFAR AS SUCH LOSSES, CLAIMS, DAMAGES,