DAMAGES PURCHASED THE REGISTRABLE SECURITIES
THAT ARE THE SUBJECT THEREOF (OR TO THE BENEFIT OF ANY PERSON CONTROLLING SUCH
PERSON) IF THE UNTRUE STATEMENT OR OMISSION OF MATERIAL FACT CONTAINED IN THE
PRELIMINARY PROSPECTUS WAS CORRECTED IN THE PROSPECTUS, AS THEN AMENDED OR
SUPPLEMENTED, IF SUCH PROSPECTUS WAS TIMELY MADE AVAILABLE BY THE COMPANY
PURSUANT TO SECTION 3(D), AND THE INDEMNIFIED PERSON WAS PROMPTLY ADVISED IN
WRITING NOT TO USE THE INCORRECT PROSPECTUS PRIOR TO THE USE GIVING RISE TO A
VIOLATION AND SUCH INDEMNIFIED PERSON, NOTWITHSTANDING SUCH ADVICE, USED IT OR
FAILED TO DELIVER THE CORRECT PROSPECTUS AS REQUIRED BY THE SECURITIES ACT AND
SUCH CORRECT PROSPECTUS WAS TIMELY MADE AVAILABLE PURSUANT TO SECTION 3(D);
(III) SHALL NOT BE AVAILABLE TO THE EXTENT SUCH DAMAGES IS BASED ON A FAILURE OF
THE INVESTOR TO DELIVER OR TO CAUSE TO BE DELIVERED THE PROSPECTUS MADE
AVAILABLE BY THE COMPANY, INCLUDING A CORRECTED PROSPECTUS, IF SUCH PROSPECTUS
OR CORRECTED PROSPECTUS WAS TIMELY MADE AVAILABLE BY THE COMPANY PURSUANT TO
SECTION 3(D); AND (IV) SHALL
10
NOT APPLY TO AMOUNTS PAID IN SETTLEMENT OF ANY DAMAGES IF SUCH SETTLEMENT IS
EFFECTED WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY, WHICH CONSENT SHALL
NOT BE UNREASONABLY WITHHELD OR DELAYED.
SUCH INDEMNITY SHALL REMAIN IN FULL
FORCE AND EFFECT REGARDLESS OF ANY INVESTIGATION MADE BY OR ON BEHALF OF THE
INDEMNIFIED PERSON AND SHALL SURVIVE THE TRANSFER OF THE REGISTRABLE SECURITIES
BY THE INVESTORS PURSUANT TO SECTION 9.
(B) IN CONNECTION WITH ANY REGISTRATION STATEMENT IN WHICH AN INVESTOR IS
PARTICIPATING, EACH SUCH INVESTOR AGREES TO SEVERALLY AND NOT JOINTLY INDEMNIFY,
HOLD HARMLESS AND DEFEND, TO THE SAME EXTENT AND IN THE SAME MANNER AS IS SET
FORTH IN SECTION 6(A), THE COMPANY, EACH OF ITS DIRECTORS, EACH OF ITS OFFICERS
WHO SIGNS THE REGISTRATION STATEMENT AND EACH PERSON, IF ANY, WHO CONTROLS THE
COMPANY WITHIN THE MEANING OF THE SECURITIES ACT OR THE EXCHANGE ACT (EACH, AN
"INDEMNIFIED PARTY"), AGAINST ANY DAMAGES OR INDEMNIFIED DAMAGES TO WHICH ANY OF
THEM MAY BECOME SUBJECT, UNDER THE SECURITIES ACT, THE EXCHANGE ACT OR
OTHERWISE, INSOFAR AS SUCH DAMAGES OR ACTIONS OR PROCEEDINGS WHETHER COMMENCED
OR THREATENED IN RESPECT THEREOF OR INDEMNIFIED DAMAGES ARISE OUT OF OR ARE
BASED UPON ANY VIOLATION, IN EACH CASE TO THE EXTENT, AND ONLY TO THE EXTENT,
THAT SUCH VIOLATION OCCURS IN RELIANCE UPON AND IN CONFORMITY WITH WRITTEN
INFORMATION FURNISHED TO THE COMPANY BY SUCH INVESTOR EXPRESSLY FOR USE IN
CONNECTION WITH SUCH REGISTRATION STATEMENT OR ANY POST-EFFECTIVE AMENDMENT
THEREOF OR ANY PROSPECTUS CONTAINED THEREIN; AND, SUBJECT TO SECTION 6(C), SUCH
INVESTOR WILL REIMBURSE ANY LEGAL OR OTHER EXPENSES REASONABLY INCURRED BY AN
INDEMNIFIED PARTY IN CONNECTION WITH INVESTIGATING OR DEFENDING ANY SUCH DAMAGES
AS PROMPTLY AS SUCH EXPENSES ARE INCURRED AND ARE DUE AND PAYABLE; PROVIDED,
HOWEVER, THAT THE INDEMNITY AGREEMENT CONTAINED IN THIS SECTION 6(B) AND THE
AGREEMENT WITH RESPECT TO CONTRIBUTION CONTAINED IN SECTION 7 SHALL NOT APPLY TO
AMOUNTS PAID IN SETTLEMENT OF ANY