the event that any Registrable Securities are included in a Registration
Statement under this Agreement:
6.1
TO THE EXTENT PERMITTED BY LAW, THE COMPANY
WILL INDEMNIFY, DEFEND AND HOLD HARMLESS EACH INVESTOR THAT HOLDS SUCH
REGISTRABLE SECURITIES, AND AGENTS, EMPLOYEES, ATTORNEYS, ACCOUNTANTS,
UNDERWRITERS (AS DEFINED IN THE SECURITIES ACT) FOR SUCH INVESTORS AND ANY
DIRECTORS OR OFFICERS OF SUCH INVESTOR OR SUCH UNDERWRITER AND ANY PERSON WHO
CONTROLS SUCH INVESTOR OR SUCH UNDERWRITER WITHIN THE MEANING OF THE SECURITIES
ACT OR THE EXCHANGE ACT (EACH, AN "INVESTOR INDEMNIFIED PERSON") AGAINST ANY
LOSSES, CLAIMS, DAMAGES, EXPENSES OR LIABILITIES (COLLECTIVELY, AND TOGETHER
WITH ACTIONS, PROCEEDINGS OR INQUIRIES BY ANY REGULATORY OR SELF-REGULATORY
ORGANIZATION, WHETHER COMMENCED OR THREATENED IN RESPECT THEREOF, "CLAIMS") TO
WHICH ANY OF THEM BECOME SUBJECT UNDER THE SECURITIES ACT, THE EXCHANGE ACT OR
OTHERWISE, INSOFAR AS SUCH CLAIMS ARISE OUT OF OR ARE BASED UPON ANY OF THE
FOLLOWING STATEMENTS, OMISSIONS OR VIOLATIONS IN A REGISTRATION STATEMENT FILED
PURSUANT TO THIS AGREEMENT, ANY POST-EFFECTIVE AMENDMENT THEREOF OR ANY
PROSPECTUS INCLUDED THEREIN:
(A) ANY UNTRUE STATEMENT OR ALLEGED UNTRUE
STATEMENT OF A MATERIAL FACT CONTAINED IN THE REGISTRATION STATEMENT OR ANY
POST-EFFECTIVE AMENDMENT THEREOF OR THE OMISSION OR ALLEGED OMISSION TO STATE
THEREIN A MATERIAL FACT REQUIRED TO BE STATED THEREIN OR NECESSARY TO MAKE THE
STATEMENTS THEREIN NOT MISLEADING, (B) ANY UNTRUE STATEMENT OR ALLEGED UNTRUE
STATEMENT OF A MATERIAL FACT CONTAINED IN THE PROSPECTUS OR ANY PRELIMINARY
PROSPECTUS (AS IT MAY BE AMENDED OR SUPPLEMENTED) 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 (C) ANY VIOLATION OR ALLEGED VIOLATION BY THE
COMPANY OF THE SECURITIES ACT, THE EXCHANGE ACT OR ANY OTHER LAW, INCLUDING
WITHOUT LIMITATION ANY STATE SECURITIES LAW OR ANY RULE OR REGULATION THEREUNDER
(THE MATTERS IN THE FOREGOING CLAUSES (A) THROUGH (C) BEING, COLLECTIVELY,
"VIOLATIONS").
SUBJECT TO THE RESTRICTIONS SET FORTH IN SECTION 6.4 WITH
RESPECT TO THE NUMBER OF LEGAL COUNSEL, THE COMPANY WILL REIMBURSE THE INVESTORS
AND EACH SUCH ATTORNEY, ACCOUNTANT, UNDERWRITER OR CONTROLLING PERSON AND EACH
SUCH OTHER INVESTOR INDEMNIFIED PERSON, PROMPTLY AS SUCH EXPENSES
10
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
CLAIM.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE
INDEMNIFICATION AGREEMENT CONTAINED IN THIS SECTION 6.1 (I) DOES NOT APPLY TO A
CLAIM BY AN INVESTOR INDEMNIFIED PERSON ARISING OUT OF OR BASED UPON A VIOLATION
THAT OCCURS IN RELIANCE UPON AND IN CONFORMITY WITH INFORMATION FURNISHED IN
WRITING TO THE COMPANY BY SUCH INVESTOR INDEMNIFIED PERSON EXPRESSLY FOR USE IN
THE REGISTRATION STATEMENT OR ANY SUCH AMENDMENT THEREOF OR SUPPLEMENT THERETO,
IF SUCH PROSPECTUS OR SUPPLEMENT THERETO WAS TIMELY MADE AVAILABLE BY THE
COMPANY PURSUANT TO SECTION 3.3 HEREOF; AND (II) DOES NOT APPLY TO AMOUNTS PAID
IN SETTLEMENT OF ANY CLAIM IF