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 IN ANY PRELIMINARY PROSPECTUS, OR ARISING OUT OF OR RELATING TO ANY OMISSION
OR ALLEGED 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, EXCEPT TO THE EXTENT, BUT ONLY TO THE
EXTENT, THAT (I) SUCH UNTRUE STATEMENTS, ALLEGED UNTRUE STATEMENTS, OMISSIONS OR
ALLEGED OMISSIONS ARE BASED SOLELY UPON INFORMATION REGARDING SUCH PURCHASER
FURNISHED IN WRITING TO THE COMPANY BY SUCH PURCHASER EXPRESSLY FOR USE THEREIN,
OR TO THE EXTENT THAT SUCH INFORMATION RELATES TO SUCH PURCHASER OR SUCH
PURCHASER'S PROPOSED METHOD OF DISTRIBUTION OF REGISTRABLE SECURITIES AND WAS
REVIEWED AND EXPRESSLY APPROVED IN WRITING BY SUCH PURCHASER EXPRESSLY FOR USE
IN THE REGISTRATION STATEMENT, SUCH PROSPECTUS OR SUCH FORM OF PROSPECTUS OR IN
ANY AMENDMENT OR SUPPLEMENT THERETO OR (II) IN THE CASE OF AN OCCURRENCE OF AN
EVENT OF THE TYPE SPECIFIED IN SECTION 6.2(C)(V)-(VII), THE USE BY SUCH
PURCHASER OF AN OUTDATED OR DEFECTIVE PROSPECTUS AFTER THE COMPANY HAS NOTIFIED
SUCH PURCHASER IN WRITING THAT THE PROSPECTUS IS OUTDATED OR DEFECTIVE AND PRIOR
TO THE RECEIPT BY SUCH PURCHASER OF THE ADVICE CONTEMPLATED IN SECTION 6.5.
THE
COMPANY SHALL NOTIFY THE PURCHASERS PROMPTLY OF THE INSTITUTION, THREAT OR
ASSERTION OF ANY PROCEEDING OF WHICH THE COMPANY IS AWARE IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
(B)
INDEMNIFICATION BY PURCHASERS. EACH
PURCHASER SHALL, SEVERALLY AND NOT JOINTLY, INDEMNIFY AND HOLD HARMLESS THE
COMPANY, ITS DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES,
24
each Person who controls the Company (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act), and the directors, officers,
agents or employees of such controlling Persons, to the fullest extent permitted
by applicable law, from and against all Losses (as determined by a court of
competent jurisdiction in a final judgment not subject to appeal or review)
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 solely out of 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 to the extent, but only to the extent, that such untrue statement or
omission is contained in any information so furnished in writing by such
Purchaser 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 such Purchaser furnished
in writing