WAS TIMELY MADE AVAILABLE BY THE
COMPANY TO THE PURCHASER, AND THE PURCHASER WAS ADVISED IN WRITING NOT TO USE
THE INCORRECT PROSPECTUS PRIOR TO THE USE GIVING RISE TO LOSSES.
(B)
INDEMNIFICATION BY THE PURCHASER.
THE PURCHASER SHALL INDEMNIFY AND HOLD
HARMLESS THE COMPANY AND THE OFFICERS, DIRECTORS, PARTNERS, MEMBERS, AGENTS AND
EMPLOYEES OF THE COMPANY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
FROM AND AGAINST ALL LOSSES ARISING SOLELY OUT OF ANY UNTRUE STATEMENT OF A
MATERIAL FACT CONTAINED IN THE REGISTRATION STATEMENT, ANY PROSPECTUS, OR ANY
FORM OF PROSPECTUS, OR IN ANY AMENDMENT OR SUPPLEMENT THERETO, OR ARISING OUT OF
OR RELATING TO ANY OMISSION OF A MATERIAL FACT REQUIRED TO BE STATED THEREIN OR
NECESSARY TO MAKE THE STATEMENTS THEREIN (IN THE CASE OF ANY PROSPECTUS OR FORM
OF PROSPECTUS OR SUPPLEMENT THERETO, IN THE LIGHT OF THE CIRCUMSTANCES UNDER
WHICH THEY WERE MADE) NOT MISLEADING, BUT ONLY TO THE EXTENT THAT SUCH UNTRUE
STATEMENT OR OMISSION IS CONTAINED IN ANY INFORMATION SO FURNISHED BY THE
PURCHASER IN WRITING TO THE COMPANY SPECIFICALLY FOR INCLUSION IN SUCH
REGISTRATION STATEMENT OR SUCH PROSPECTUS OR TO THE EXTENT THAT (I) SUCH UNTRUE
STATEMENTS OR OMISSIONS ARE BASED SOLELY UPON INFORMATION REGARDING THE
PURCHASER FURNISHED TO THE COMPANY BY THE PURCHASER IN WRITING EXPRESSLY FOR USE
THEREIN, OR (II) TO THE EXTENT THAT SUCH INFORMATION RELATES TO PURCHASER OR
PURCHASER'S PROPOSED METHOD OF DISTRIBUTION OF REGISTRABLE SECURITIES AND WAS
REVIEWED AND EXPRESSLY APPROVED BY THE PURCHASER EXPRESSLY FOR USE IN THE
REGISTRATION STATEMENT, SUCH PROSPECTUS OR SUCH FORM OF PROSPECTUS OR IN ANY
AMENDMENT OR SUPPLEMENT THERETO.
IN NO EVENT SHALL THE LIABILITY OF THE
PURCHASER HEREUNDER BE GREATER IN AMOUNT THAN THE DOLLAR AMOUNT OF THE NET
PROCEEDS (AFTER DISCOUNTS AND COMMISSIONS BUT BEFORE EXPENSES)
20
RECEIVED BY THE PURCHASER UPON THE SALE OF THE REGISTRABLE SECURITIES GIVING
RISE TO SUCH INDEMNIFICATION OBLIGATION.
(C)
CONDUCT OF INDEMNIFICATION PROCEEDINGS.
IF ANY PROCEEDING SHALL BE
BROUGHT OR ASSERTED AGAINST ANY PERSON ENTITLED TO INDEMNITY HEREUNDER (AN
"INDEMNIFIED PARTY"), SUCH INDEMNIFIED PARTY SHALL PROMPTLY NOTIFY THE PERSON
FROM WHOM INDEMNITY IS SOUGHT (THE "INDEMNIFYING PARTY") IN WRITING, AND THE
INDEMNIFYING PARTY SHALL ASSUME THE DEFENSE THEREOF, INCLUDING THE EMPLOYMENT OF
COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED PARTY AND THE PAYMENT OF ALL
FEES AND EXPENSES INCURRED IN CONNECTION WITH DEFENSE THEREOF; PROVIDED, THAT
THE FAILURE OF ANY INDEMNIFIED PARTY TO GIVE SUCH NOTICE SHALL NOT RELIEVE THE
INDEMNIFYING PARTY OF ITS OBLIGATIONS OR LIABILITIES PURSUANT TO THIS AGREEMENT,
EXCEPT (AND ONLY) TO THE EXTENT THAT IT SHALL BE FINALLY DETERMINED BY A COURT
OF COMPETENT JURISDICTION (WHICH DETERMINATION IS NOT SUBJECT TO APPEAL OR
FURTHER REVIEW) THAT SUCH FAILURE SHALL HAVE PROXIMATELY AND MATERIALLY
ADVERSELY PREJUDICED THE INDEMNIFYING PARTY.
An Indemnified Party shall have the right to employ one separate counsel in any
such Proceeding and to participate in the defense thereof, but the fees and
expenses of such one separate counsel shall be at the expense of such