OUT OF OR ARE BASED UPON ANY UNTRUE
STATEMENT OR ALLEGED UNTRUE STATEMENT OF A MATERIAL FACT CONTAINED ON THE
EFFECTIVE DATE THEREOF IN THE REGISTRATION STATEMENT, OR ANY FINAL PROSPECTUS
INCLUDED THEREIN (IN EACH CASE AS AMENDED OR SUPPLEMENTED, INCLUDING WITHOUT
LIMITATION, ANY UPDATE PURSUANT TO RULE 424(B) UNDER THE SECURITIES ACT), BUT
ONLY TO THE EXTENT THAT SUCH UNTRUE STATEMENT OF A MATERIAL FACT IS CONTAINED
IN, OR SUCH MATERIAL FACT IS OMITTED FROM, WRITTEN INFORMATION FURNISHED BY SUCH
HOLDER, SPECIFICALLY FOR USE IN SUCH REGISTRATION STATEMENT OR PROSPECTUS;
PROVIDED, HOWEVER, THAT THE OBLIGATIONS OF SUCH HOLDERS HEREUNDER SHALL BE
LIMITED TO AN AMOUNT EQUAL TO THE NET PROCEEDS TO EACH HOLDER OF REGISTRABLE
SECURITIES SOLD IN CONNECTION WITH SUCH REGISTRATION.
(C)
INDEMNIFICATION PROCEDURES. PROMPTLY AFTER RECEIPT BY AN INDEMNIFIED PARTY
HEREUNDER OF NOTICE OF THE COMMENCEMENT OF ANY ACTION, SUCH INDEMNIFIED PARTY
SHALL, IF A CLAIM IN RESPECT THEREOF IS TO BE MADE AGAINST THE INDEMNIFYING
PARTY HEREUNDER, NOTIFY THE INDEMNIFYING PARTY IN WRITING THEREOF (AN
"INDEMNIFICATION NOTICE"), BUT THE OMISSION SO TO NOTIFY THE INDEMNIFYING PARTY
SHALL NOT RELIEVE IT FROM ANY LIABILITY WHICH IT MAY HAVE TO ANY INDEMNIFIED
PARTY UNLESS THE INDEMNIFYING PARTY IS MATERIALLY AND ADVERSELY AFFECTED
THEREBY. IN CASE ANY SUCH ACTION SHALL BE BROUGHT AGAINST ANY INDEMNIFIED PARTY
AND IT SHALL NOTIFY THE INDEMNIFYING PARTY OF THE COMMENCEMENT THEREOF, THE
INDEMNIFYING PARTY SHALL BE ENTITLED TO PARTICIPATE IN AND, TO THE EXTENT IT
SHALL WISH, TO ASSUME AND UNDERTAKE THE DEFENSE THEREOF AND,
7
AFTER NOTICE FROM THE INDEMNIFYING PARTY TO SUCH INDEMNIFIED PARTY OF ITS
ELECTION SO TO ASSUME AND UNDERTAKE THE DEFENSE THEREOF, THE INDEMNIFYING PARTY
SHALL NOT BE LIABLE TO SUCH INDEMNIFIED PARTY UNDER THIS SECTION 6(C) FOR ANY
LEGAL EXPENSES SUBSEQUENTLY INCURRED BY SUCH INDEMNIFIED PARTY IN CONNECTION
WITH THE DEFENSE THEREOF. NOTWITHSTANDING THE FOREGOING, THE INDEMNIFIED PARTY
SHALL HAVE THE RIGHT TO EMPLOY ITS OWN COUNSEL AT ITS EXPENSE UNLESS (I) THE
EMPLOYMENT OF SUCH COUNSEL SHALL HAVE BEEN AUTHORIZED IN WRITING BY THE
INDEMNIFYING PARTY OR (II) THE ATTORNEYS FOR THE INDEMNIFYING PARTY SHALL HAVE
CONCLUDED THAT THERE ARE DEFENSES AVAILABLE TO THE INDEMNIFIED PARTY THAT ARE
DIFFERENT FROM OR ADDITIONAL TO THOSE AVAILABLE TO THE INDEMNIFYING PARTY AND
SUCH COUNSEL REASONABLY CONCLUDES THAT IT IS THEREFORE UNABLE TO REPRESENT THE
INTERESTS OF BOTH THE INDEMNIFIED AND INDEMNIFYING PARTY (IN WHICH CASE THE
INDEMNIFYING PARTY MAY EMPLOY SEPARATE COUNSEL). IN NO EVENT SHALL THE
INDEMNIFYING PARTY BE LIABLE FOR FEES AND EXPENSES OF MORE THAN ONE COUNSEL
SEPARATE FROM ITS OWN COUNSEL.
(D)
IN ORDER TO PROVIDE FOR JUST AND EQUITABLE CONTRIBUTION TO JOINT LIABILITY
UNDER THE SECURITIES ACT IN ANY CASE IN WHICH EITHER (I) ANY HOLDER OF
REGISTRABLE SECURITIES EXERCISING RIGHTS UNDER THIS AGREEMENT, OR ANY
CONTROLLING PERSON OF ANY SUCH HOLDER, MAKES A CLAIM FOR INDEMNIFICATION
PURSUANT TO THIS SECTION 6 BUT IT IS JUDICIALLY DETERMINED (BY THE ENTRY OF A
FINAL JUDGMENT OR DECREE BY A COURT OF COMPETENT JURISDICTION