FOR THE COMPANY,
(E) FEES AND EXPENSES OF ALL OTHER PERSONS RETAINED BY THE COMPANY IN CONNECTION
WITH THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AND
(F) ALL LISTING FEES TO BE PAID BY THE COMPANY TO THE TRADING MARKET.
6.4
INDEMNIFICATION
(A)
INDEMNIFICATION BY THE COMPANY.
THE
COMPANY SHALL, NOTWITHSTANDING ANY TERMINATION OF THIS AGREEMENT, INDEMNIFY AND
HOLD HARMLESS EACH INVESTOR, THE OFFICERS, DIRECTORS, PARTNERS, MEMBERS, AGENTS
AND EMPLOYEES OF EACH OF THEM, EACH PERSON WHO CONTROLS ANY SUCH INVESTOR
(WITHIN THE MEANING OF SECTION 15 OF THE SECURITIES ACT OR SECTION 20 OF THE
EXCHANGE ACT) AND THE OFFICERS, DIRECTORS, PARTNERS, MEMBERS, AGENTS AND
EMPLOYEES OF EACH SUCH CONTROLLING PERSON, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, FROM AND AGAINST ANY AND ALL LOSSES, AS INCURRED, ARISING OUT OF
OR RELATING TO (I) ANY MISREPRESENTATION OR BREACH OF ANY REPRESENTATION OR
WARRANTY MADE BY THE COMPANY IN THE TRANSACTION DOCUMENTS OR ANY OTHER
CERTIFICATE, INSTRUMENT OR DOCUMENT CONTEMPLATED HEREBY OR THEREBY, (II) ANY
BREACH OF ANY COVENANT, AGREEMENT OR OBLIGATION OF THE COMPANY CONTAINED IN THE
TRANSACTION DOCUMENTS OR ANY OTHER CERTIFICATE, INSTRUMENT OR DOCUMENT
CONTEMPLATED HEREBY OR THEREBY, (III) ANY CAUSE OF ACTION, SUIT OR CLAIM BROUGHT
OR MADE AGAINST SUCH INDEMNIFIED PARTY (AS DEFINED IN SECTION 6.4(C) BELOW) BY A
THIRD PARTY (INCLUDING FOR THESE PURPOSES A DERIVATIVE ACTION BROUGHT ON BEHALF
OF THE COMPANY), ARISING OUT OF OR RESULTING FROM (X) EXECUTION, DELIVERY,
PERFORMANCE OR ENFORCEMENT OF THE TRANSACTION DOCUMENTS OR ANY OTHER
CERTIFICATE, INSTRUMENT OR DOCUMENT CONTEMPLATED HEREBY OR THEREBY, (Y) ANY
TRANSACTION FINANCED OR TO BE FINANCED IN WHOLE OR IN PART, DIRECTLY OR
INDIRECTLY, WITH THE PROCEEDS OF THE ISSUANCE OF THE SECURITIES, OR (Z) THE
STATUS OF INDEMNIFIED PARTY AS HOLDER OF THE SECURITIES OR (IV) ANY UNTRUE OR
ALLEGED UNTRUE STATEMENT OF A MATERIAL FACT CONTAINED IN THE REGISTRATION
STATEMENT, ANY PROSPECTUS OR ANY FORM OF COMPANY PROSPECTUS OR IN ANY AMENDMENT
OR SUPPLEMENT THERETO OR IN ANY COMPANY 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
27
CIRCUMSTANCES UNDER WHICH THEY WERE MADE) NOT MISLEADING, EXCEPT TO THE EXTENT,
BUT ONLY TO THE EXTENT, THAT (A) SUCH UNTRUE STATEMENTS, ALLEGED UNTRUE
STATEMENTS, OMISSIONS OR ALLEGED OMISSIONS ARE BASED UPON INFORMATION REGARDING
SUCH INVESTOR FURNISHED IN WRITING TO THE COMPANY BY SUCH INVESTOR FOR USE
THEREIN, OR TO THE EXTENT THAT SUCH INFORMATION RELATES TO SUCH INVESTOR OR SUCH
INVESTOR'S PROPOSED METHOD OF DISTRIBUTION OF REGISTRABLE SECURITIES, OR (B) IN
THE CASE OF AN OCCURRENCE OF AN EVENT OF THE TYPE SPECIFIED IN
SECTION 6.2(C)(V)-(VII), THE USE BY SUCH INVESTOR OF AN OUTDATED OR DEFECTIVE
PROSPECTUS AFTER THE COMPANY HAS NOTIFIED SUCH INVESTOR IN WRITING THAT THE
PROSPECTUS IS OUTDATED OR DEFECTIVE AND PRIOR TO THE