INVESTOR WITHIN THE MEANING OF THE SECURITIES ACT,
(COLLECTIVELY, THE "INVESTORS' AGENTS") AGAINST ALL CLAIMS, LOSSES, DAMAGES AND
LIABILITIES (OR ACTIONS IN RESPECT THEREOF), JOINT OR SEVERAL, ARISING OUT OF OR
BASED ON (A) (I) ANY UNTRUE STATEMENT (OR ALLEGED UNTRUE STATEMENT) OF A
MATERIAL FACT CONTAINED IN THE REGISTRATION STATEMENT, ANY PROSPECTUS, OFFERING
CIRCULAR OR OTHER SIMILAR DOCUMENT OR ANY AMENDMENTS OR SUPPLEMENTS THERETO
(INCLUDING ANY RELATED REGISTRATION STATEMENT AND AMENDMENTS OR SUPPLEMENTS
THERETO, NOTIFICATION OR THE LIKE) INCIDENT TO ANY SUCH REGISTRATION,
QUALIFICATION OR COMPLIANCE, OR BASED ON ANY OMISSION (OR ALLEGED OMISSION) TO
STATE THEREIN A MATERIAL FACT REQUIRED TO BE STATED THEREIN OR NECESSARY TO MAKE
THE STATEMENTS THEREIN NOT MISLEADING IN THE LIGHT OF THE CIRCUMSTANCES UNDER
WHICH THEY WERE MADE, AND WILL REIMBURSE THE INVESTORS AND THE INVESTORS' AGENTS
FOR ANY LEGAL OR ANY OTHER EXPENSES REASONABLY INCURRED IN CONNECTION WITH
INVESTIGATING OR DEFENDING ANY SUCH CLAIM, LOSS, DAMAGES, LIABILITY OR ACTION,
AS INCURRED, OR (II) ANY VIOLATION BY THE COMPANY OF ANY FEDERAL, STATE OR
COMMON LAW RULE OR REGULATION APPLICABLE TO THE COMPANY IN CONNECTION WITH ANY
SUCH REGISTRATION, QUALIFICATION OR COMPLIANCE, AND WILL REIMBURSE EACH
INVESTOR, AND EACH INVESTORS' AGENTS, FOR
18
ANY LEGAL AND ANY OTHER EXPENSES REASONABLY INCURRED IN CONNECTION WITH
INVESTIGATING OR DEFENDING ANY SUCH CLAIM, LOSS, DAMAGE, LIABILITY OR ACTION; OR
(B) ANY BREACH OF ANY COVENANT, AGREEMENT, REPRESENTATION OR WARRANTY OF THE
COMPANY IN THIS AGREEMENT.
NOTWITHSTANDING THE FOREGOING, THE COMPANY SHALL NOT
BE LIABLE UNDER THIS SECTION 7: (A) IN ANY SUCH CASE TO THE EXTENT THAT ANY SUCH
CLAIM, LOSS, DAMAGE, LIABILITY OR EXPENSE ARISES OUT OF OR IS BASED ON ANY
UNTRUE STATEMENT OR OMISSION BASED UPON WRITTEN INFORMATION FURNISHED TO THE
COMPANY BY AN INSTRUMENT DULY EXECUTED BY SUCH INVESTOR AND STATED TO BE
SPECIFICALLY FOR USE THEREIN OR FURNISHED IN WRITING BY SUCH INVESTOR TO THE
COMPANY IN RESPONSE TO A REQUEST BY THE COMPANY STATING SPECIFICALLY THAT SUCH
INFORMATION WILL BE USED BY THE COMPANY THEREIN, (B) FOR ANY AMOUNT PAID IN
SETTLEMENT OF CLAIMS WITHOUT THE COMPANY'S WRITTEN CONSENT (WHICH CONSENT SHALL
NOT BE UNREASONABLY WITHHELD), OR (C) TO THE EXTENT THAT IT IS FINALLY
JUDICIALLY DETERMINED THAT SUCH LIABILITIES RESULTED PRIMARILY FROM THE WILLFUL
MISCONDUCT OR BAD FAITH OF SUCH INDEMNIFIED PARTY; PROVIDED, FURTHER, THAT IF
AND TO THE EXTENT THAT SUCH INDEMNIFICATION IS HELD, BY FINAL JUDICIAL
DETERMINATION TO BE UNENFORCEABLE, IN WHOLE OR IN PART, FOR ANY REASON, THE
COMPANY SHALL MAKE THE MAXIMUM CONTRIBUTION TO THE PAYMENT AND SATISFACTION OF
SUCH INDEMNIFIED LIABILITY.
IN CONNECTION WITH THE OBLIGATION OF THE COMPANY TO
INDEMNIFY FOR EXPENSES AS SET FORTH ABOVE, IF AN INDEMNIFIED PARTY IS REIMBURSED
HEREUNDER FOR ANY EXPENSES, SUCH REIMBURSEMENT OF EXPENSES SHALL BE REFUNDED TO
THE EXTENT IT IS FINALLY JUDICIALLY DETERMINED THAT THE LIABILITIES IN QUESTION
RESULTED PRIMARILY FROM THE WILLFUL MISCONDUCT OR BAD FAITH OF SUCH INDEMNIFIED
PARTY.
7.2
INDEMNIFICATION BY INVESTORS.
EACH INVESTOR WILL SEVERALLY AND
NOT JOINTLY INDEMNIFY