OUT OF OR BASED UPON, ANY 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 UNDER WHICH THEY WERE MADE, NOT MISLEADING, IF THE STATEMENT OR
OMISSION WAS MADE IN RELIANCE UPON AND IN CONFORMITY WITH THE INFORMATION
PROVIDED IN WRITING BY OR ON BEHALF OF SUCH HOLDER OR ANY PERSON WHO CONTROLS
SUCH HOLDER SPECIFICALLY FOR USE OR INCLUSION IN THE REGISTRATION STATEMENT OR
ANY PROSPECTUS, (II) THE USE OF ANY PROSPECTUS AFTER SUCH TIME AS THE COMPANY
HAS ADVISED SUCH HOLDER THAT THE FILING OF A POST-EFFECTIVE AMENDMENT OR
SUPPLEMENT THERETO IS REQUIRED, EXCEPT THE PROSPECTUS AS SO AMENDED OR
SUPPLEMENTED, (III) THE USE OF ANY PROSPECTUS AFTER SUCH TIME AS THE OBLIGATION
OF THE COMPANY HEREUNDER TO KEEP THE REGISTRATION STATEMENT EFFECTIVE AND
CURRENT HAS EXPIRED OR BEEN SUSPENDED HEREUNDER, OR (IV) IN THE CASE OF A
NON-UNDERWRITTEN OFFERING, ANY FAILURE BY SUCH HOLDER TO GIVE ANY PURCHASER OF
REGISTRABLE SECURITIES AT OR PRIOR TO THE WRITTEN CONFIRMATION OF SUCH SALE, A
COPY OF THE MOST RECENT PROSPECTUS.
IN NO EVENT WILL THE LIABILITY OF ANY
SELLING HOLDER HEREUNDER BE GREATER IN AMOUNT THAN THE DOLLAR AMOUNT OF THE NET
PROCEEDS RECEIVED BY SUCH HOLDER UPON THE SALE OF THE REGISTRABLE SECURITIES
GIVING RISE TO SUCH INDEMNIFICATION OBLIGATION.
(C)
CONDUCT OF INDEMNIFICATION PROCEEDINGS.
IF
ANY PERSON SHALL BECOME ENTITLED TO INDEMNITY HEREUNDER (AN "INDEMNIFIED
PARTY"), SUCH INDEMNIFIED PARTY SHALL GIVE PROMPT NOTICE TO THE PARTY FROM WHICH
SUCH INDEMNITY IS SOUGHT (THE "INDEMNIFYING PARTY") OF ANY CLAIM OR OF THE
COMMENCEMENT OF ANY ACTION OR PROCEEDING WITH RESPECT TO WHICH SUCH INDEMNIFIED
PARTY SEEKS INDEMNIFICATION OR CONTRIBUTION PURSUANT HERETO; PROVIDED, HOWEVER,
THAT THE FAILURE TO SO NOTIFY THE INDEMNIFYING PARTY WILL NOT RELIEVE THE
INDEMNIFYING PARTY FROM ANY OBLIGATION OR LIABILITY EXCEPT TO THE EXTENT THAT
THE INDEMNIFYING PARTY HAS BEEN PREJUDICED MATERIALLY BY SUCH FAILURE.
ALL
REASONABLE AND DOCUMENTED FEES AND EXPENSES (INCLUDING ANY REASONABLE FEES AND
EXPENSES INCURRED IN CONNECTION WITH INVESTIGATING OR PREPARING TO DEFEND SUCH
ACTION OR PROCEEDING) WILL BE PAID TO THE INDEMNIFIED PARTY (PROVIDED
APPROPRIATE DOCUMENTATION FOR SUCH EXPENSES IS ALSO SUBMITTED WITH SUCH NOTICE),
AS INCURRED, WITHIN FIVE CALENDAR DAYS OF WRITTEN NOTICE THEREOF TO THE
INDEMNIFYING PARTY.
THE INDEMNIFYING PARTY WILL NOT CONSENT TO ENTRY OF ANY
JUDGMENT OR ENTER INTO ANY SETTLEMENT OR OTHERWISE SEEK TO TERMINATE ANY ACTION
OR PROCEEDING IN WHICH ANY INDEMNIFIED PARTY IS OR COULD BE A PARTY AND AS TO
WHICH INDEMNIFICATION OR CONTRIBUTION COULD BE SOUGHT BY SUCH INDEMNIFIED PARTY
UNDER THIS SECTION 7, UNLESS SUCH JUDGMENT, SETTLEMENT OR OTHER TERMINATION
INCLUDES AS AN UNCONDITIONAL TERM THEREOF THE GIVING BY THE CLAIMANT OR
PLAINTIFF TO SUCH INDEMNIFIED PARTY OF A RELEASE, IN FORM AND SUBSTANCE
REASONABLY SATISFACTORY TO THE INDEMNIFIED PARTY, FROM ALL LIABILITY IN RESPECT
OF SUCH
12
CLAIM OR LITIGATION FOR WHICH SUCH INDEMNIFIED PARTY WOULD BE ENTITLED TO
INDEMNIFICATION HEREUNDER.