FROM AND AGAINST, AND SHALL REIMBURSE SUCH INDEMNIFIED
PARTY WITH RESPECT TO, ANY AND ALL LIABILITIES TO WHICH SUCH INDEMNIFIED PARTY
MAY BECOME SUBJECT UNDER THE ACT OR OTHERWISE, ARISING FROM OR RELATING TO
(I) ANY UNTRUE STATEMENT OR ALLEGED UNTRUE STATEMENT OF ANY MATERIAL FACT
CONTAINED IN SUCH REGISTRATION STATEMENT, ANY PROSPECTUS CONTAINED THEREIN OR
ANY AMENDMENT OR SUPPLEMENT THERETO, OR (II) THE OMISSION OR ALLEGED OMISSION TO
STATE THEREIN A MATERIAL FACT REQUIRED TO BE STATED THEREIN OR NECESSARY TO MAKE
THE STATEMENTS THEREIN, IN LIGHT OF THE CIRCUMSTANCES IN WHICH THEY WERE MADE,
NOT MISLEADING; PROVIDED, THAT THE HOLDER WILL BE LIABLE IN ANY SUCH CASE TO THE
EXTENT, AND ONLY TO THE EXTENT, THAT ANY SUCH LIABILITY ARISES OUT OF OR IS
BASED UPON AN UNTRUE STATEMENT OR ALLEGED UNTRUE STATEMENT OR OMISSION OR
ALLEGED OMISSION MADE IN SUCH REGISTRATION STATEMENT, PROSPECTUS OR AMENDMENT OR
SUPPLEMENT THERETO (A) FOR ANY OFFER OR SALE MADE DURING THE NO-SALE PERIOD AS
TO WHICH THE HOLDER HAS RECEIVED A DEFERRAL NOTICE FROM THE COMPANY, OR (B) IN
RELIANCE UPON INFORMATION FURNISHED BY THE HOLDER TO THE COMPANY IN WRITING
SPECIFICALLY FOR USE IN THE REGISTRATION STATEMENT.
(C)
PROMPTLY AFTER RECEIPT BY ANY INDEMNIFIED PARTY OF NOTICE OF THE
COMMENCEMENT OF ANY ACTION, SUCH INDEMNIFIED PARTY SHALL, IF A CLAIM IN RESPECT
THEREOF IS TO BE MADE AGAINST ANOTHER PARTY (FOR PURPOSES OF THIS
SECTION 5(C) THE "INDEMNIFYING PARTY") HEREUNDER, NOTIFY SUCH PARTY IN WRITING
THEREOF, BUT THE OMISSION SO TO NOTIFY SHALL NOT RELIEVE THE INDEMNIFYING PARTY
FROM ANY LIABILITY WHICH IT MAY HAVE TO THE INDEMNIFIED PARTY OTHER THAN UNDER
THIS SECTION AND SHALL ONLY RELIEVE IT FROM ANY LIABILITY WHICH IT MAY HAVE TO
THE INDEMNIFIED PARTY UNDER THIS SECTION IF AND TO THE EXTENT IT IS ACTUALLY
PREJUDICED BY SUCH OMISSION. IN CASE ANY SUCH ACTION SHALL BE BROUGHT AGAINST
ANY INDEMNIFIED PARTY AND SUCH INDEMNIFIED PARTY SHALL NOTIFY THE INDEMNIFYING
PARTY OF THE COMMENCEMENT THEREOF, THE INDEMNIFYING PARTY SHALL BE ENTITLED TO
PARTICIPATE IN AND, TO THE EXTENT IT SHALL WISH, TO ASSUME AND UNDERTAKE THE
DEFENSE THEREOF WITH COUNSEL REASONABLY SATISFACTORY TO SUCH INDEMNIFIED PARTY,
AND, AFTER NOTICE FROM THE INDEMNIFYING PARTY TO THE INDEMNIFIED PARTY OF ITS
ELECTION SO TO ASSUME AND UNDERTAKE THE DEFENSE
4
THEREOF, THE INDEMNIFYING PARTY SHALL NOT BE LIABLE TO THE INDEMNIFIED PARTY
UNDER THIS SECTION FOR ANY LEGAL EXPENSES SUBSEQUENTLY INCURRED BY THE
INDEMNIFIED PARTY IN CONNECTION WITH THE DEFENSE THEREOF OTHER THAN REASONABLE
COSTS OF INVESTIGATION AND OF LIAISON WITH COUNSEL SO SELECTED; PROVIDED, THAT
IF THE DEFENDANTS IN ANY SUCH ACTION INCLUDE BOTH THE INDEMNIFYING PARTY AND
SUCH INDEMNIFIED PARTY AND THE INDEMNIFIED PARTY SHALL HAVE REASONABLY CONCLUDED
BASED UPON A WRITTEN OPINION OF COUNSEL THAT THERE MAY BE REASONABLE DEFENSES
AVAILABLE TO IT WHICH ARE DIFFERENT FROM THOSE AVAILABLE TO THE INDEMNIFYING
PARTY OR IF THE INTERESTS OF THE INDEMNIFIED PARTY REASONABLY MAY BE DEEMED TO
CONFLICT WITH THE INTERESTS OF THE INDEMNIFYING