15 OF THE SECURITIES ACT (EACH, AN "INDEMNIFIED PARTY"),
AGAINST ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES (JOINT OR SEVERAL)
(COLLECTIVELY, "CLAIMS") TO WHICH ANY OF THEM MAY BECOME SUBJECT UNDER OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (THE "EXCHANGE ACT"), OR OTHERWISE,
INSOFAR AS SUCH CLAIMS (OR ACTIONS OR PROCEEDINGS, WHETHER COMMENCED OR
THREATENED, IN RESPECT THEREOF) ARISE OUT OF OR ARE BASED UPON ANY OF THE
FOLLOWING STATEMENTS, OMISSIONS OR VIOLATIONS (EACH, A "VIOLATION"); (I) 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, OR (II) ANY
UNTRUE STATEMENT OR ALLEGED UNTRUE STATEMENT OF A MATERIAL FACT CONTAINED IN ANY
PRELIMINARY PROSPECTUS IF USED PRIOR TO THE EFFECTIVE DATE OF SUCH REGISTRATION
STATEMENT, OR CONTAINED IN THE FINAL PROSPECTUS (AS AMENDED OR SUPPLEMENTED IF
THE
10
COMPANY FILES ANY AMENDMENT THEREOF OR SUPPLEMENT THERETO WITH THE SEC), OR THE
OMISSION OR ALLEGED OMISSION TO STATE THEREIN A MATERIAL FACT REQUIRED TO BE
STATED THEREIN, OR NECESSARY IN ORDER TO MAKE THE STATEMENTS THEREIN, IN LIGHT
OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING.
SUBJECT TO THE
RESTRICTIONS SET FORTH IN SECTION 4.5(D) WITH RESPECT TO THE NUMBER OF LEGAL
COUNSEL, THE COMPANY SHALL PROMPTLY REIMBURSE THE HOLDER, AND EACH SUCH OTHER
PERSON ENTITLED TO INDEMNIFICATION UNDER THIS SECTION 4.5, AS SUCH EXPENSES 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 SUCH
CLAIM, WHETHER OR NOT SUCH CLAIM, INVESTIGATION OR PROCEEDING IS BROUGHT OR
INITIATED BY THE COMPANY OR A THIRD PARTY. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED HEREIN, THE INDEMNIFICATION AGREEMENT CONTAINED IN THIS
SECTION 4.5(A) SHALL NOT (I) APPLY TO A CLAIM ARISING OUT OF OR BASED UPON A
VIOLATION WHICH OCCURS IN RELIANCE UPON AND IN CONFORMITY WITH INFORMATION
FURNISHED IN WRITING TO THE COMPANY BY THE HOLDER EXPRESSLY FOR USE IN
CONNECTION WITH THE PREPARATION OF THE REGISTRATION STATEMENT, ANY PROSPECTUS OR
ANY SUCH AMENDMENT THEREOF OR SUPPLEMENT THERETO OR ANY FAILURE OF THE HOLDER TO
DELIVER A PROSPECTUS AS REQUIRED BY THE SECURITIES ACT; OR (II) APPLY TO AMOUNTS
PAID IN SETTLEMENT OF ANY CLAIM IF SUCH SETTLEMENT IS EFFECTED WITHOUT THE PRIOR
WRITTEN CONSENT OF THE COMPANY, WHICH CONSENT SHALL NOT BE UNREASONABLY
WITHHELD.
SUCH INDEMNITY SHALL REMAIN IN FULL FORCE AND EFFECT REGARDLESS OF
ANY INVESTIGATION MADE BY OR ON BEHALF OF THE HOLDER AND SHALL SURVIVE THE
TRANSFER OF THE REGISTRABLE SECURITIES BY THE HOLDER AS PROVIDED HEREIN.
(II)
IN CONNECTION WITH ANY REGISTRATION STATEMENT IN WHICH THE HOLDER IS
PARTICIPATING IN SUCH CAPACITY, THE HOLDER AGREES TO INDEMNIFY AND HOLD
HARMLESS, TO THE SAME EXTENT AND IN THE SAME MANNER SET FORTH IN SECTION 4.5(A),
THE COMPANY, EACH OF ITS DIRECTORS,