ALLEGED UNTRUE STATEMENT,
OMISSION OR ALLEGED OMISSION MADE IN ANY PRELIMINARY PROSPECTUS OR PROSPECTUS
THAT IS ELIMINATED OR REMEDIED IN ANY PROSPECTUS OR AMENDMENT OR SUPPLEMENT
THERETO, THE ABOVE INDEMNITY OBLIGATIONS OF THE COMPANY SHALL NOT INURE TO THE
BENEFIT OF ANY INDEMNIFIED PARTY IF A COPY OF SUCH CORRECTED PROSPECTUS OR
AMENDMENT OR SUPPLEMENT THERETO HAD BEEN PROVIDED TO SUCH INDEMNIFIED PARTY AND
WAS NOT SENT OR GIVEN BY SUCH INDEMNIFIED PARTY AT OR PRIOR TO THE TIME SUCH
ACTION WAS REQUIRED OF SUCH INDEMNIFIED PARTY BY THE 1933 ACT AND IF DELIVERY OF
SUCH PROSPECTUS OR AMENDMENT OR SUPPLEMENT THERETO WOULD HAVE ELIMINATED (OR
BEEN A SUFFICIENT DEFENSE TO) ANY LIABILITY OF SUCH INDEMNIFIED PARTY WITH
RESPECT TO SUCH STATEMENT OR OMISSION.
INDEMNITY UNDER THIS SECTION 5(A)
8
SHALL REMAIN IN FULL FORCE AND EFFECT REGARDLESS OF ANY INVESTIGATION MADE BY OR
ON BEHALF OF ANY INDEMNIFIED PARTY AND SHALL SURVIVE THE PERMITTED TRANSFER OF
THE REGISTRABLE SECURITIES AND ADDITIONAL REGISTRABLE SECURITIES.
(B)
INDEMNIFICATION BY HOLDER.
IN CONNECTION WITH ANY REGISTRATION
PURSUANT TO THE TERMS OF THIS AGREEMENT, EACH PURCHASER WILL FURNISH TO THE
COMPANY IN WRITING SUCH INFORMATION AS THE COMPANY REASONABLY REQUESTS
CONCERNING THE HOLDERS OF REGISTRABLE SECURITIES AND ADDITIONAL REGISTRABLE
SECURITIES OR THE PROPOSED MANNER OF DISTRIBUTION FOR USE IN CONNECTION WITH ANY
REGISTRATION STATEMENT OR PROSPECTUS AND AGREES, SEVERALLY BUT NOT JOINTLY, TO
INDEMNIFY AND HOLD HARMLESS, TO THE FULLEST EXTENT PERMITTED BY LAW, THE
COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS AND EACH PERSON WHO
CONTROLS THE COMPANY (WITHIN THE MEANING OF THE 1933 ACT) AGAINST ANY LOSSES,
CLAIMS, DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION,
REASONABLE ATTORNEY'S FEES) RESULTING FROM ANY UNTRUE STATEMENT OF A MATERIAL
FACT OR ANY OMISSION OF A MATERIAL FACT REQUIRED TO BE STATED IN THE
REGISTRATION STATEMENT OR PROSPECTUS OR PRELIMINARY PROSPECTUS OR AMENDMENT OR
SUPPLEMENT THERETO OR NECESSARY TO MAKE THE STATEMENTS THEREIN NOT MISLEADING,
TO THE EXTENT, BUT ONLY TO THE EXTENT THAT SUCH UNTRUE STATEMENT OR OMISSION IS
CONTAINED IN ANY INFORMATION FURNISHED IN WRITING BY SUCH PURCHASER TO THE
COMPANY SPECIFICALLY FOR INCLUSION IN SUCH REGISTRATION STATEMENT OR PROSPECTUS
OR AMENDMENT OR SUPPLEMENT THERETO AND THAT SUCH INFORMATION WAS RELIED UPON BY
THE COMPANY IN PREPARATION OF THE REGISTRATION STATEMENT OR PROSPECTUS OR ANY
AMENDMENT OR SUPPLEMENT THERETO.
(C)
CONDUCT OF INDEMNIFICATION PROCEEDINGS.
ANY PERSON ENTITLED TO
INDEMNIFICATION HEREUNDER SHALL (I) GIVE PROMPT NOTICE TO THE INDEMNIFYING PARTY
OF ANY CLAIM WITH RESPECT TO WHICH IT SEEKS INDEMNIFICATION AND (II) PERMIT SUCH
INDEMNIFYING PARTY TO ASSUME THE DEFENSE OF SUCH CLAIM WITH COUNSEL REASONABLY
SATISFACTORY TO THE INDEMNIFIED PARTY; PROVIDED THAT ANY PERSON ENTITLED TO
INDEMNIFICATION HEREUNDER SHALL HAVE THE RIGHT TO EMPLOY SEPARATE COUNSEL AND TO
PARTICIPATE IN THE DEFENSE OF SUCH CLAIM, BUT THE FEES AND EXPENSES OF SUCH
COUNSEL SHALL BE AT THE EXPENSE OF SUCH PERSON UNLESS (A) THE INDEMNIFYING PARTY
HAS AGREED TO PAY SUCH FEES OR EXPENSES, OR (B) THE INDEMNIFYING PARTY SHALL
HAVE FAILED TO