IN CONNECTION WITH INVESTIGATING OR DEFENDING ANY SUCH LOSS, CLAIM,
DAMAGE, LIABILITY OR ACTION; PROVIDED, HOWEVER, THAT THE COMPANY WILL NOT BE
LIABLE IN ANY SUCH CASE TO THE EXTENT THAT ANY SUCH LOSS, CLAIM, DAMAGE OR
LIABILITY ARISES OUT OF OR IS BASED UPON ANY UNTRUE STATEMENT OR OMISSION MADE
IN SUCH REGISTRATION STATEMENT, PRELIMINARY PROSPECTUS OR PROSPECTUS, OR ANY
SUCH AMENDMENT OR SUPPLEMENT, IN RELIANCE UPON AND IN CONFORMITY WITH
INFORMATION FURNISHED TO THE COMPANY, IN WRITING, BY OR ON BEHALF OF SUCH
SELLING STOCKHOLDER, UNDERWRITER OR CONTROLLING PERSON SPECIFICALLY FOR USE IN
THE PREPARATION THEREOF.
(B)
IN THE EVENT OF ANY REGISTRATION OF ANY OF THE REGISTRABLE SHARES
UNDER THE SECURITIES ACT PURSUANT TO THIS AGREEMENT, EACH SELLING STOCKHOLDER,
SEVERALLY AND NOT JOINTLY, WILL INDEMNIFY AND HOLD HARMLESS THE COMPANY, EACH OF
ITS DIRECTORS AND OFFICERS AND EACH UNDERWRITER (IF ANY) AND EACH PERSON, IF
ANY, WHO CONTROLS THE COMPANY OR ANY SUCH UNDERWRITER WITHIN THE MEANING OF THE
SECURITIES ACT OR THE EXCHANGE ACT, AGAINST ANY LOSSES, CLAIMS, DAMAGES OR
LIABILITIES, JOINT OR SEVERAL, TO WHICH THE COMPANY, SUCH DIRECTORS AND
OFFICERS, UNDERWRITER OR CONTROLLING PERSON MAY BECOME SUBJECT UNDER THE
SECURITIES ACT, EXCHANGE ACT, STATE SECURITIES OR BLUE SKY LAWS OR OTHERWISE,
INSOFAR AS SUCH LOSSES, CLAIMS, DAMAGES OR
6
LIABILITIES (OR ACTIONS IN RESPECT THEREOF) ARISE OUT OF OR ARE BASED UPON (I)
ANY UNTRUE STATEMENT OR ALLEGED UNTRUE STATEMENT OF A MATERIAL FACT CONTAINED IN
ANY REGISTRATION STATEMENT UNDER WHICH SUCH REGISTRABLE SHARES WERE REGISTERED
UNDER THE SECURITIES ACT, ANY PRELIMINARY PROSPECTUS OR FINAL PROSPECTUS
CONTAINED IN THE REGISTRATION STATEMENT, OR ANY AMENDMENT OR SUPPLEMENT TO THE
REGISTRATION STATEMENT, OR (II) ANY OMISSION OR ALLEGED OMISSION TO STATE A
MATERIAL FACT REQUIRED TO BE STATED THEREIN OR NECESSARY TO MAKE THE STATEMENTS
THEREIN NOT MISLEADING, IF AND TO THE EXTENT (AND ONLY TO THE EXTENT) THAT THE
STATEMENT OR OMISSION WAS MADE IN RELIANCE UPON AND IN CONFORMITY WITH
INFORMATION RELATING TO SUCH SELLING STOCKHOLDER FURNISHED IN WRITING TO THE
COMPANY BY SUCH SELLING STOCKHOLDER SPECIFICALLY FOR USE IN CONNECTION WITH THE
PREPARATION OF SUCH REGISTRATION STATEMENT, PROSPECTUS, AMENDMENT OR SUPPLEMENT;
PROVIDED, HOWEVER, THAT THE OBLIGATIONS OF A SELLING STOCKHOLDER HEREUNDER SHALL
BE LIMITED TO AN AMOUNT EQUAL TO THE NET PROCEEDS TO SUCH SELLING STOCKHOLDER OF
REGISTRABLE SHARES SOLD IN CONNECTION WITH SUCH REGISTRATION.
(C)
EACH INDEMNIFIED PARTY SHALL GIVE NOTICE TO THE INDEMNIFYING PARTY
PROMPTLY AFTER SUCH INDEMNIFIED PARTY HAS ACTUAL KNOWLEDGE OF ANY CLAIM AS TO
WHICH INDEMNITY MAY BE SOUGHT, AND SHALL PERMIT THE INDEMNIFYING PARTY TO ASSUME
THE DEFENSE OF ANY SUCH CLAIM OR ANY LITIGATION RESULTING THEREFROM; PROVIDED,
THAT COUNSEL FOR THE INDEMNIFYING PARTY, WHO SHALL CONDUCT THE DEFENSE OF SUCH
CLAIM OR LITIGATION, SHALL BE APPROVED BY THE INDEMNIFIED PARTY (WHOSE APPROVAL
SHALL NOT BE UNREASONABLY WITHHELD, CONDITIONED OR DELAYED); AND, PROVIDED,
FURTHER, THAT THE FAILURE OF ANY INDEMNIFIED PARTY TO GIVE NOTICE AS PROVIDED
HEREIN SHALL NOT RELIEVE THE INDEMNIFYING PARTY OF ITS OBLIGATIONS