INQUIRY, PROCEEDING, INVESTIGATION OR APPEAL TAKEN FROM THE
FOREGOING BY OR BEFORE ANY COURT OR GOVERNMENTAL, ADMINISTRATIVE OR OTHER
REGULATORY AGENCY, BODY OR THE SEC, WHETHER PENDING OR THREATENED, WHETHER OR
NOT AN INDEMNIFIED PARTY IS OR MAY BE A PARTY THERETO ("INDEMNIFIED DAMAGES"),
TO WHICH ANY OF THEM MAY BECOME SUBJECT INSOFAR AS SUCH CLAIMS (OR ACTIONS OR
PROCEEDINGS, WHETHER COMMENCED OR THREATENED, IN RESPECT THEREOF) ARISE OUT OF
OR ARE BASED UPON:
(I) ANY UNTRUE STATEMENT OR ALLEGED UNTRUE STATEMENT OF A
MATERIAL FACT IN A REGISTRATION STATEMENT OR ANY POST-EFFECTIVE AMENDMENT
THERETO OR IN ANY FILING MADE IN CONNECTION WITH THE QUALIFICATION OF THE
OFFERING UNDER THE SECURITIES OR OTHER "BLUE SKY" LAWS OF ANY JURISDICTION IN
WHICH REGISTRABLE SECURITIES ARE OFFERED ("BLUE SKY FILING"), OR THE OMISSION OR
ALLEGED
11
OMISSION TO STATE A MATERIAL FACT REQUIRED TO BE STATED THEREIN OR NECESSARY TO
MAKE THE STATEMENTS THEREIN NOT MISLEADING, (II) ANY UNTRUE STATEMENT OR ALLEGED
UNTRUE STATEMENT OF A MATERIAL FACT CONTAINED IN ANY PRELIMINARY PROSPECTUS IF
USED PRIOR TO THE EFFECTIVE DATE OF SUCH REGISTRATION STATEMENT, OR CONTAINED IN
THE FINAL PROSPECTUS (AS AMENDED OR SUPPLEMENTED, IF THE COMPANY FILES ANY
AMENDMENT THEREOF OR SUPPLEMENT THERETO WITH THE SEC) OR THE OMISSION OR ALLEGED
OMISSION TO STATE THEREIN ANY MATERIAL FACT NECESSARY TO MAKE THE STATEMENTS
MADE THEREIN, IN THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH THE STATEMENTS
THEREIN WERE MADE, NOT MISLEADING, (III) ANY VIOLATION OR ALLEGED VIOLATION BY
THE COMPANY OF THE 1933 ACT, THE 1934 ACT, ANY OTHER LAW, INCLUDING, WITHOUT
LIMITATION, ANY STATE SECURITIES LAW, OR ANY RULE OR REGULATION THEREUNDER
RELATING TO THE OFFER OR SALE OF THE REGISTRABLE SECURITIES PURSUANT TO A
REGISTRATION STATEMENT OR (IV) ANY VIOLATION BY THE COMPANY OF THIS AGREEMENT
(THE MATTERS IN THE FOREGOING CLAUSES (I) THROUGH (IV) BEING, COLLECTIVELY,
"VIOLATIONS").
SUBJECT TO SECTION 6(C), THE COMPANY SHALL REIMBURSE THE
INDEMNIFIED PERSONS, PROMPTLY AS SUCH EXPENSES ARE INCURRED AND ARE DUE AND
PAYABLE, FOR ANY 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 6(A):
(I) SHALL NOT APPLY TO A CLAIM BY AN
INDEMNIFIED PERSON ARISING OUT OF OR BASED UPON A VIOLATION WHICH OCCURS IN
RELIANCE UPON AND IN CONFORMITY WITH INFORMATION FURNISHED IN WRITING TO THE
COMPANY BY SUCH INDEMNIFIED PERSON FOR SUCH INDEMNIFIED PERSON EXPRESSLY FOR 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) 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 (III) SHALL