ANY UNDERWRITING AGREEMENT
WITH RESPECT THERETO, THAT THE COMPANY SHALL HAVE RECEIVED AN UNDERTAKING
REASONABLY SATISFACTORY TO IT FROM THE ELECTING HOLDER OF SUCH REGISTRABLE
SECURITIES AND FROM EACH UNDERWRITER NAMED IN ANY SUCH UNDERWRITING AGREEMENT,
SEVERALLY AND NOT JOINTLY, TO (I) INDEMNIFY AND HOLD HARMLESS THE COMPANY, THE
SUBSIDIARY GUARANTORS, EACH PERSON WHO CONTROLS THE COMPANY OR ANY OF THE
SUBSIDIARY GUARANTORS WITHIN THE MEANING OF THE SECURITIES ACT OR EXCHANGE ACT
AND ALL OTHER HOLDERS OF REGISTRABLE SECURITIES, AGAINST ANY LOSSES, CLAIMS,
DAMAGES OR LIABILITIES TO WHICH THE COMPANY, THE SUBSIDIARY GUARANTORS OR SUCH
OTHER HOLDERS OF REGISTRABLE SECURITIES MAY BECOME SUBJECT, UNDER THE SECURITIES
ACT OR OTHERWISE, INSOFAR AS SUCH LOSSES, CLAIMS, DAMAGES OR LIABILITIES (OR
ACTIONS IN RESPECT THEREOF) ARISE OUT OF OR ARE BASED UPON AN UNTRUE STATEMENT
OR ALLEGED UNTRUE STATEMENT OF A MATERIAL FACT CONTAINED IN SUCH REGISTRATION
STATEMENT, OR ANY PRELIMINARY, FINAL OR SUMMARY PROSPECTUS CONTAINED THEREIN OR
FURNISHED BY THE COMPANY TO ANY SUCH ELECTING HOLDER, AGENT OR UNDERWRITER, OR
ANY AMENDMENT OR SUPPLEMENT THERETO, OR ARISE OUT OF OR ARE BASED UPON THE
OMISSION OR ALLEGED
18
OMISSION TO STATE THEREIN A MATERIAL FACT REQUIRED TO BE STATED THEREIN OR
NECESSARY TO MAKE THE STATEMENTS THEREIN NOT MISLEADING, IN EACH CASE TO THE
EXTENT, BUT ONLY TO THE EXTENT, THAT SUCH UNTRUE STATEMENT OR ALLEGED UNTRUE
STATEMENT OR OMISSION OR ALLEGED OMISSION WAS MADE IN RELIANCE UPON AND IN
CONFORMITY WITH WRITTEN INFORMATION FURNISHED TO THE COMPANY BY SUCH ELECTING
HOLDER OR UNDERWRITER EXPRESSLY FOR USE THEREIN, AND (II) REIMBURSE THE COMPANY
AND THE SUBSIDIARY GUARANTORS FOR ANY LEGAL OR OTHER EXPENSES REASONABLY
INCURRED BY THE COMPANY AND THE SUBSIDIARY GUARANTORS IN CONNECTION WITH
INVESTIGATING OR DEFENDING ANY SUCH ACTION OR CLAIM AS SUCH EXPENSES ARE
INCURRED; PROVIDED, HOWEVER, THAT NO SUCH ELECTING HOLDER SHALL BE REQUIRED TO
UNDERTAKE LIABILITY TO ANY PERSON UNDER THIS SECTION 6(B) FOR ANY AMOUNTS IN
EXCESS OF THE DOLLAR AMOUNT OF THE PROCEEDS TO BE RECEIVED BY SUCH ELECTING
HOLDER FROM THE SALE OF SUCH ELECTING HOLDER'S REGISTRABLE SECURITIES PURSUANT
TO SUCH REGISTRATION.
(C)
NOTICES OF CLAIMS, ETC. PROMPTLY AFTER
RECEIPT BY AN INDEMNIFIED PARTY UNDER SUBSECTION (A) OR (B) ABOVE OF WRITTEN
NOTICE OF THE COMMENCEMENT OF ANY ACTION OR PROCEEDING FOR WHICH INDEMNIFICATION
IS SOUGHT, SUCH INDEMNIFIED PARTY SHALL, IF A CLAIM IN RESPECT THEREOF IS TO BE
MADE AGAINST AN INDEMNIFYING PARTY PURSUANT TO THE INDEMNIFICATION PROVISIONS OF
OR CONTEMPLATED BY THIS SECTION 6, NOTIFY SUCH INDEMNIFYING PARTY IN WRITING OF
THE COMMENCEMENT OF SUCH ACTION; BUT THE OMISSION SO TO NOTIFY THE INDEMNIFYING
PARTY SHALL NOT RELIEVE IT FROM ANY LIABILITY WHICH IT MAY HAVE TO ANY
INDEMNIFIED PARTY OTHERWISE THAN UNDER THE INDEMNIFICATION PROVISIONS OF OR
CONTEMPLATED BY SECTION 6(A) OR 6(B) HEREOF. IN CASE ANY SUCH ACTION SHALL BE
BROUGHT AGAINST ANY INDEMNIFIED PARTY AND IT SHALL NOTIFY AN INDEMNIFYING PARTY
OF THE COMMENCEMENT THEREOF, SUCH INDEMNIFYING PARTY SHALL BE ENTITLED TO
PARTICIPATE THEREIN AND, TO THE