MATERIAL FACT REQUIRED TO BE STATED THEREIN OR NECESSARY TO MAKE THE STATEMENTS
THEREIN NOT MISLEADING, BUT ONLY TO THE EXTENT THAT THE SAME ARE MADE IN
RELIANCE AND IN CONFORMITY WITH INFORMATION FURNISHED IN WRITING TO THE COMPANY
BY THE HOLDER EXPRESSLY FOR USE THEREIN OR CAUSED BY THE HOLDER'S FAILURE TO
DELIVER TO THE HOLDER'S IMMEDIATE PURCHASER A COPY OF THE REGISTRATION
STATEMENT, PROSPECTUS, FREE WRITING PROSPECTUS (AS DEFINED IN RULE 405
PROMULGATED UNDER THE SECURITIES ACT) OR ANY AMENDMENTS OR SUPPLEMENTS THERETO
(IF THE SAME WAS REQUIRED BY APPLICABLE LAW TO BE SO DELIVERED) AFTER THE
COMPANY HAS FURNISHED THE HOLDER WITH A SUFFICIENT NUMBER OF COPIES OF THE SAME
PRIOR TO ANY WRITTEN CONFIRMATION OF THE SALE OF REGISTRABLE COMMON STOCK;
PROVIDED, HOWEVER, THAT THE LIABILITY OF THE HOLDER SHALL BE IN PROPORTION TO
AND LIMITED TO THE NET AMOUNT RECEIVED BY THE HOLDER FROM THE SALE OF
REGISTRABLE COMMON STOCK PURSUANT TO SUCH REGISTRATION STATEMENT.
14
(C)
ANY PERSON ENTITLED TO INDEMNIFICATION HEREUNDER SHALL (I) GIVE
PROMPT WRITTEN NOTICE TO THE INDEMNIFYING PARTY OF ANY CLAIM WITH RESPECT TO
WHICH IT SEEKS INDEMNIFICATION AND (II) PERMIT SUCH INDEMNIFYING PARTY TO ASSUME
THE DEFENSE OF SUCH CLAIM WITH COUNSEL REASONABLY SATISFACTORY TO THE
INDEMNIFIED PARTY. IF SUCH DEFENSE IS ASSUMED, THE INDEMNIFYING PARTY SHALL NOT
BE SUBJECT TO ANY LIABILITY FOR ANY SETTLEMENT MADE BY THE INDEMNIFIED PARTY
WITHOUT ITS CONSENT (BUT SUCH CONSENT WILL NOT BE UNREASONABLY WITHHELD). AN
INDEMNIFYING PARTY WHO IS ENTITLED TO, AND ELECTS TO, ASSUME THE DEFENSE OF A
CLAIM SHALL NOT BE OBLIGATED TO PAY THE FEES AND EXPENSES OF MORE THAN ONE
COUNSEL FOR ALL PARTIES INDEMNIFIED BY SUCH INDEMNIFYING PARTY WITH RESPECT TO
SUCH CLAIM, UNLESS IN THE REASONABLE JUDGMENT OF ANY INDEMNIFIED PARTY THERE MAY
BE ONE OR MORE LEGAL OR EQUITABLE DEFENSES AVAILABLE TO SUCH INDEMNIFIED PARTY
WHICH ARE IN ADDITION TO OR MAY CONFLICT WITH THOSE AVAILABLE TO ANOTHER
INDEMNIFIED PARTY WITH RESPECT TO SUCH CLAIM. FAILURE TO GIVE PROMPT WRITTEN
NOTICE SHALL NOT RELEASE THE INDEMNIFYING PARTY FROM ITS OBLIGATIONS HEREUNDER.
(D)
THE INDEMNIFICATION PROVIDED FOR UNDER THIS AGREEMENT SHALL REMAIN
IN FULL FORCE AND EFFECT REGARDLESS OF ANY INVESTIGATION MADE BY OR ON BEHALF OF
THE INDEMNIFIED PARTY OR ANY OFFICER, DIRECTOR OR CONTROLLING PERSON OF SUCH
INDEMNIFIED PARTY AND SHALL SURVIVE THE TRANSFER OF SECURITIES.
(E)
IF THE INDEMNIFICATION PROVIDED FOR IN OR PURSUANT TO THIS
SECTION 8 IS DUE IN ACCORDANCE WITH THE TERMS HEREOF, BUT IS HELD BY A COURT TO
BE UNAVAILABLE OR UNENFORCEABLE IN RESPECT OF ANY LOSSES, CLAIMS, DAMAGES,
LIABILITIES OR EXPENSES REFERRED TO HEREIN, THEN EACH APPLICABLE INDEMNIFYING
PARTY, IN LIEU OF INDEMNIFYING SUCH INDEMNIFIED PARTY, SHALL CONTRIBUTE TO THE
AMOUNT PAID OR PAYABLE BY SUCH INDEMNIFIED PERSON AS A RESULT OF SUCH LOSSES,
CLAIMS, DAMAGES, LIABILITIES OR EXPENSES IN SUCH PROPORTION AS IS APPROPRIATE TO
REFLECT THE RELATIVE FAULT OF THE INDEMNIFYING PARTY ON THE ONE HAND AND OF THE
INDEMNIFIED PARTY ON THE