NECESSARY TO MAKE THE STATEMENTS
THEREIN NOT MISLEADING, (II) ANY UNTRUE STATEMENT OR ALLEGED UNTRUE STATEMENT OF
A MATERIAL FACT CONTAINED IN ANY PRELIMINARY PROSPECTUS IF USED PRIOR TO THE
EFFECTIVE DATE OF SUCH REGISTRATION STATEMENT, OR CONTAINED IN THE FINAL
PROSPECTUS (AS AMENDED OR SUPPLEMENTED, IF THE COMPANY FILES ANY AMENDMENT
THEREOF OR SUPPLEMENT THERETO WITH THE SEC) OR THE OMISSION OR ALLEGED OMISSION
TO STATE THEREIN ANY MATERIAL FACT NECESSARY TO MAKE THE STATEMENTS MADE
THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THE STATEMENTS THEREIN WERE
MADE, NOT MISLEADING, OR (III) ANY VIOLATION OR ALLEGED VIOLATION BY THE COMPANY
OF THE 1933 ACT, THE 1934 ACT, ANY OTHER LAW, INCLUDING, WITHOUT LIMITATION, ANY
STATE SECURITIES LAW, OR ANY RULE OR REGULATION THEREUNDER RELATING TO THE OFFER
OR SALE OF THE REGISTRABLE SECURITIES PURSUANT TO A REGISTRATION STATEMENT (THE
MATTERS IN THE
10
FOREGOING CLAUSES (I) THROUGH (III) BEING, COLLECTIVELY, "VIOLATIONS").
SUBJECT
TO SECTION 6(C), THE COMPANY SHALL REIMBURSE THE INDEMNIFIED PERSONS, PROMPTLY
AS SUCH EXPENSES ARE INCURRED AND ARE DUE AND PAYABLE, FOR ANY LEGAL FEES OR
OTHER REASONABLE EXPENSES INCURRED BY THEM IN CONNECTION WITH INVESTIGATING OR
DEFENDING ANY SUCH CLAIM.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED
HEREIN, THE INDEMNIFICATION AGREEMENT CONTAINED IN THIS SECTION 6(A):
(I) SHALL
NOT APPLY TO A CLAIM BY AN INDEMNIFIED PERSON ARISING OUT OF OR BASED UPON A
VIOLATION WHICH OCCURS IN RELIANCE UPON AND IN CONFORMITY WITH INFORMATION
FURNISHED IN WRITING TO THE COMPANY BY SUCH INDEMNIFIED PERSON FOR SUCH
INDEMNIFIED PERSON EXPRESSLY FOR USE IN CONNECTION WITH THE PREPARATION OF THE
REGISTRATION STATEMENT OR ANY SUCH AMENDMENT THEREOF OR SUPPLEMENT THERETO, IF
SUCH PROSPECTUS WAS TIMELY MADE AVAILABLE BY THE COMPANY PURSUANT TO SECTION
3(D); (II) WITH RESPECT TO ANY PRELIMINARY PROSPECTUS, SHALL NOT INURE TO THE
BENEFIT OF ANY SUCH PERSON FROM WHOM THE PERSON ASSERTING ANY SUCH CLAIM
PURCHASED THE REGISTRABLE SECURITIES THAT ARE THE SUBJECT THEREOF (OR TO THE
BENEFIT OF ANY PERSON CONTROLLING SUCH PERSON) IF THE UNTRUE STATEMENT OR
OMISSION OF MATERIAL FACT CONTAINED IN THE PRELIMINARY PROSPECTUS WAS CORRECTED
IN THE PROSPECTUS, AS THEN AMENDED OR SUPPLEMENTED, IF SUCH PROSPECTUS WAS
TIMELY MADE AVAILABLE BY THE COMPANY PURSUANT TO SECTION 3(D), AND THE
INDEMNIFIED PERSON WAS PROMPTLY ADVISED IN WRITING NOT TO USE THE INCORRECT
PROSPECTUS PRIOR TO THE USE GIVING RISE TO A VIOLATION AND SUCH INDEMNIFIED
PERSON, NOTWITHSTANDING SUCH ADVICE, USED IT OR FAILED TO DELIVER THE CORRECT
PROSPECTUS AS REQUIRED BY THE 1933 ACT AND SUCH CORRECT PROSPECTUS WAS TIMELY
MADE AVAILABLE PURSUANT TO SECTION 3(D); (III) SHALL NOT BE AVAILABLE TO THE
EXTENT SUCH CLAIM IS BASED ON A FAILURE OF THE INVESTOR TO DELIVER OR TO CAUSE
TO BE DELIVERED THE PROSPECTUS MADE AVAILABLE BY THE COMPANY, INCLUDING A
CORRECTED PROSPECTUS, IF SUCH PROSPECTUS OR CORRECTED PROSPECTUS WAS TIMELY MADE
AVAILABLE BY THE COMPANY PURSUANT TO SECTION 3(D); AND (IV) SHALL NOT APPLY TO
AMOUNTS PAID IN SETTLEMENT OF ANY CLAIM IF SUCH SETTLEMENT IS EFFECTED