THREAT OR ASSERTION OF ANY
PROCEEDING OF WHICH THE COMPANY IS AWARE IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT.
(B)
INDEMNIFICATION BY IVOW. IVOW SHALL,
SEVERALLY AND NOT JOINTLY, INDEMNIFY AND HOLD HARMLESS THE COMPANY, ITS
DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES, EACH PERSON WHO CONTROLS THE COMPANY
(WITHIN THE MEANING OF SECTION 15 OF THE SECURITIES ACT AND SECTION 20 OF THE
EXCHANGE ACT), AND THE DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES OF SUCH
CONTROLLING PERSONS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FROM AND
AGAINST ALL LOSSES, AS INCURRED, ARISING SOLELY OUT OF OR BASED SOLELY UPON: (X)
IVOW'S FAILURE TO COMPLY WITH THE PROSPECTUS DELIVERY REQUIREMENTS OF THE
SECURITIES ACT OR (Y) ANY UNTRUE STATEMENT OF A MATERIAL FACT CONTAINED IN ANY
REGISTRATION STATEMENT, ANY PROSPECTUS, OR ANY FORM OF PROSPECTUS,
5
OR IN ANY AMENDMENT OR SUPPLEMENT THERETO, OR ARISING SOLELY OUT OF OR BASED
SOLELY UPON ANY OMISSION OF A MATERIAL FACT REQUIRED TO BE STATED THEREIN OR
NECESSARY TO MAKE THE STATEMENTS THEREIN NOT MISLEADING TO THE EXTENT, BUT ONLY
TO THE EXTENT THAT, (1) SUCH UNTRUE STATEMENTS OR OMISSIONS ARE BASED SOLELY
UPON INFORMATION REGARDING IVOW FURNISHED IN WRITING TO THE COMPANY BY IVOW
EXPRESSLY FOR USE THEREIN, OR TO THE EXTENT THAT SUCH INFORMATION RELATES TO
IVOW OR IVOW'S PROPOSED METHOD OF DISTRIBUTION OF REGISTRABLE SECURITIES AND WAS
REVIEWED AND EXPRESSLY APPROVED IN WRITING BY IVOW EXPRESSLY FOR USE IN THE
REGISTRATION STATEMENT (IT BEING UNDERSTOOD THAT IVOW HAS APPROVED ANNEX A
HERETO FOR THIS PURPOSE), SUCH PROSPECTUS OR SUCH FORM OF PROSPECTUS OR IN ANY
AMENDMENT OR SUPPLEMENT THERETO OR (2) IN THE CASE OF AN OCCURRENCE OF AN EVENT
OF THE TYPE SPECIFIED IN SECTION 3(C)(II)-(V), THE USE BY IVOW OF AN OUTDATED OR
DEFECTIVE PROSPECTUS AFTER THE COMPANY HAS NOTIFIED IVOW IN WRITING THAT THE
PROSPECTUS IS OUTDATED OR
DEFECTIVE AND PRIOR TO THE RECEIPT BY IVOW OF AN
ADVICE OR AN AMENDED OR SUPPLEMENTED PROSPECTUS, BUT ONLY IF AND TO THE EXTENT
THAT FOLLOWING THE RECEIPT OF THE ADVICE OR THE AMENDED OR SUPPLEMENTED
PROSPECTUS THE MISSTATEMENT OR OMISSION GIVING RISE TO SUCH LOSS WOULD HAVE BEEN
CORRECTED.
IN NO EVENT SHALL THE LIABILITY OF IVOW HEREUNDER BE GREATER IN
AMOUNT THAN THE DOLLAR AMOUNT OF THE NET PROCEEDS RECEIVED BY IVOW UPON THE SALE
OF THE REGISTRABLE SECURITIES GIVING RISE TO SUCH INDEMNIFICATION OBLIGATION.
(C)
CONDUCT OF INDEMNIFICATION PROCEEDINGS. IF
ANY PROCEEDING SHALL BE BROUGHT OR ASSERTED AGAINST ANY PERSON ENTITLED TO
INDEMNITY HEREUNDER (AN "INDEMNIFIED PARTY"), SUCH INDEMNIFIED PARTY SHALL
PROMPTLY NOTIFY THE PERSON FROM WHOM INDEMNITY IS SOUGHT (THE "INDEMNIFYING
PARTY") IN WRITING, AND THE INDEMNIFYING PARTY SHALL ASSUME THE DEFENSE THEREOF,
INCLUDING THE EMPLOYMENT OF COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED
PARTY AND THE PAYMENT OF ALL FEES AND EXPENSES INCURRED IN CONNECTION WITH
DEFENSE THEREOF; PROVIDED, THAT THE FAILURE OF ANY INDEMNIFIED PARTY TO GIVE
SUCH NOTICE SHALL NOT RELIEVE THE INDEMNIFYING PARTY OF ITS OBLIGATIONS OR
LIABILITIES PURSUANT TO THIS