OR REGULATION THEREUNDER RELATING TO THE OFFER OR SALE OF THE
REGISTRABLE SECURITIES PURSUANT TO THE REGISTRATION STATEMENT (THE MATTERS IN
THE FOREGOING CLAUSES (I) THROUGH (III) BEING, COLLECTIVELY, "VIOLATIONS").
SUBJECT TO THE RESTRICTIONS SET FORTH IN SECTION 6(B) THE COMPANY SHALL
REIMBURSE EACH INDEMNIFIED PERSON, PROMPTLY AS SUCH EXPENSES ARE INCURRED AND
ARE DUE AND PAYABLE, FOR ANY REASONABLE LEGAL FEES OR OTHER REASONABLE EXPENSES
INCURRED BY THEM IN CONNECTION WITH INVESTIGATING OR DEFENDING ANY SUCH CLAIM.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE INDEMNIFICATION
AGREEMENT CONTAINED IN THIS SECTION 6(A): (I) SHALL NOT APPLY TO A CLAIM ARISING
OUT OF OR BASED UPON A VIOLATION WHICH IS DUE TO THE INCLUSION IN THE
REGISTRATION STATEMENT OF THE INFORMATION FURNISHED TO THE COMPANY BY ANY
INDEMNIFIED PERSON EXPRESSLY FOR USE IN CONNECTION WITH THE PREPARATION OF THE
REGISTRATION STATEMENT OR ANY SUCH AMENDMENT THEREOF OR SUPPLEMENT THERETO; (II)
SHALL NOT BE AVAILABLE TO THE EXTENT SUCH CLAIM IS BASED ON (A) A FAILURE OF THE
INVESTOR TO DELIVER OR TO CAUSE TO BE DELIVERED THE PROSPECTUS MADE AVAILABLE BY
THE COMPANY; (B) THE INDEMNIFIED PERSON'S USE OF AN INCORRECT PROSPECTUS DESPITE
BEING PROMPTLY ADVISED IN ADVANCE BY THE COMPANY IN WRITING NOT TO USE SUCH
INCORRECT PROSPECTUS; (C) THE MANNER OF SALE OF THE REGISTRABLE SECURITIES BY
THE INVESTOR OR OF THE INVESTOR'S FAILURE TO REGISTER AS A DEALER UNDER
APPLICABLE SECURITIES LAWS; (D) ANY OMISSION OF THE INVESTOR TO NOTIFY THE
COMPANY OF ANY MATERIAL FACT THAT SHOULD BE STATED IN THE REGISTRATION STATEMENT
OR PROSPECTUS RELATING TO THE INVESTOR OR THE MANNER OF SALE; AND (E) ANY
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 INDEMNIFIED PERSON
AND
SHALL SURVIVE THE RESALE OF THE REGISTRABLE SECURITIES BY THE INVESTOR
PURSUANT TO THE REGISTRATION STATEMENT; AND (III) SHALL NOT BE AVAILABLE TO THE
EXTENT THE CLAIM ARISES OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE
INDEMNIFIED PERSON.
Page 6 of 10
(B)
PROMPTLY AFTER RECEIPT BY AN INDEMNIFIED PERSON OR INDEMNIFIED
PARTY UNDER THIS SECTION 6 OF NOTICE OF THE COMMENCEMENT OF ANY ACTION OR
PROCEEDING (INCLUDING ANY GOVERNMENTAL ACTION OR PROCEEDING) INVOLVING A CLAIM,
SUCH INDEMNIFIED PERSON OR INDEMNIFIED PARTY SHALL, IF A CLAIM IN RESPECT
THEREOF IS TO BE MADE AGAINST ANY INDEMNIFYING PARTY UNDER THIS SECTION 6,
DELIVER TO THE INDEMNIFYING PARTY A WRITTEN NOTICE OF THE COMMENCEMENT THEREOF,
AND THE INDEMNIFYING PARTY SHALL HAVE THE RIGHT TO PARTICIPATE IN, AND, TO THE
EXTENT THE INDEMNIFYING PARTY SO DESIRES, JOINTLY WITH ANY OTHER INDEMNIFYING
PARTY SIMILARLY NOTICED, TO ASSUME CONTROL OF THE DEFENSE THEREOF WITH COUNSEL
MUTUALLY SATISFACTORY TO THE INDEMNIFYING PARTY AND THE INDEMNIFIED PERSON OR
THE INDEMNIFIED PARTY, AS THE CASE MAY BE; PROVIDED, HOWEVER, THAT AN
INDEMNIFIED PERSON OR