WHICH
THEY WERE MADE, NOT MISLEADING; OR
(III)
ANY FAILURE OF THE COMPANY TO PERFORM ITS
OBLIGATIONS UNDER THIS AGREEMENT, AND SHALL REIMBURSE THE INVESTOR INDEMNITEES
FOR ANY LEGAL AND OTHER EXPENSES AS SUCH EXPENSES ARE REASONABLY INCURRED BY THE
INVESTOR INDEMNITEES IN CONNECTION WITH INVESTIGATING, DEFENDING, SETTLING,
COMPROMISING OR PAYING ANY SUCH LOSS, CLAIM, DAMAGE, LIABILITY, EXPENSE OR
ACTION;
provided, however, that the Company shall not be liable in any such case (a) to
the extent that any such loss, claim, damage, liability or expense arises out of
or is based upon (i) an untrue statement or alleged untrue statement or omission
or alleged omission made in the Registration Statement, the Prospectus or any
amendment or supplement of the Registration Statement or Prospectus in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of the Investor expressly for use in the Registration Statement or the
Prospectus, (ii) the failure of the Investor to comply with the covenants and
agreements contained in Section 7.3 hereof respecting resale of the Shares or
(iii) any untrue statement or omission of a material fact in any Prospectus that
is corrected in any subsequent Prospectus that was delivered to the Investor
before the pertinent sale or sales by the Investor or (b) for any amount paid in
settlement of any such loss, claim, damage, liability, expense or action if such
settlement is effected without the consent of the Company, which consent shall
not be unreasonably withheld.
(B)
INDEMNIFICATION BY THE INVESTOR. THE
INVESTOR AGREES TO INDEMNIFY AND HOLD HARMLESS THE COMPANY, EACH OF ITS
DIRECTORS, EACH OF ITS OFFICERS WHO SIGN THE REGISTRATION STATEMENT AND EACH
PERSON, IF ANY, WHO CONTROLS THE COMPANY WITHIN THE MEANING OF THE SECURITIES
ACT, AGAINST ANY LOSSES, CLAIMS, DAMAGES, LIABILITIES OR EXPENSES TO WHICH THE
COMPANY, EACH OF ITS DIRECTORS, EACH OF ITS OFFICERS WHO SIGN THE REGISTRATION
STATEMENT OR CONTROLLING PERSON MAY BECOME SUBJECT, UNDER THE SECURITIES ACT,
THE EXCHANGE ACT, OR ANY OTHER FEDERAL OR STATE STATUTORY LAW OR REGULATION
INSOFAR AS SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR EXPENSES (OR ACTIONS IN
RESPECT THEREOF AS CONTEMPLATED BELOW) ARISE OUT OF OR ARE BASED UPON:
18
(I)
ANY FAILURE ON THE PART OF THE INVESTOR
TO COMPLY WITH THE COVENANTS AND AGREEMENTS CONTAINED IN SECTION 7.3 HEREOF
RESPECTING THE SALE OF THE SHARES; OR
(II)
ANY UNTRUE OR ALLEGED UNTRUE STATEMENT OF
ANY MATERIAL FACT CONTAINED IN THE REGISTRATION STATEMENT, THE PROSPECTUS, OR
ANY AMENDMENT OR SUPPLEMENT TO THE REGISTRATION STATEMENT OR PROSPECTUS, OR THE
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, 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 THE REGISTRATION
STATEMENT, THE PROSPECTUS, OR ANY AMENDMENT OR SUPPLEMENT THERETO, IN RELIANCE