ALLEGED UNTRUE STATEMENT OF A
MATERIAL FACT CONTAINED IN THE REGISTRATION STATEMENT OR THE PROSPECTUS OR ANY
AMENDMENT OR SUPPLEMENT TO THE REGISTRATION STATEMENT OR THE PROSPECTUS OR IN
ANY ISSUER FREE WRITING PROSPECTUS OR IN ANY APPLICATION OR OTHER DOCUMENT
EXECUTED BY OR ON BEHALF OF THE COMPANY OR BASED ON WRITTEN INFORMATION
FURNISHED BY OR ON BEHALF OF THE COMPANY FILED IN ANY JURISDICTION IN ORDER TO
QUALIFY THE SHARES UNDER THE SECURITIES LAWS THEREOF OR FILED WITH THE
COMMISSION, (II) THE OMISSION OR ALLEGED OMISSION TO STATE IN ANY SUCH DOCUMENT
A MATERIAL FACT REQUIRED TO BE STATED IN IT OR NECESSARY TO MAKE THE STATEMENTS
IN IT NOT MISLEADING OR (III) ANY BREACH BY ANY OF THE INDEMNIFYING PARTIES OF
ANY OF THEIR RESPECTIVE REPRESENTATIONS, WARRANTIES AND AGREEMENTS CONTAINED IN
THIS AGREEMENT; PROVIDED, HOWEVER, THAT THIS INDEMNITY AGREEMENT SHALL NOT APPLY
TO THE EXTENT THAT SUCH LOSS, CLAIM, LIABILITY, EXPENSE OR DAMAGE ARISES FROM
THE SALE OF THE PLACEMENT SHARES PURSUANT TO THIS AGREEMENT AND IS CAUSED
DIRECTLY OR INDIRECTLY BY AN UNTRUE STATEMENT OR OMISSION MADE IN RELIANCE ON
AND IN CONFORMITY WITH INFORMATION RELATING TO WM SMITH.
THIS INDEMNITY
AGREEMENT WILL BE IN ADDITION TO ANY LIABILITY THAT THE COMPANY MIGHT OTHERWISE
HAVE.
(B)
WM SMITH INDEMNIFICATION.
WM SMITH AGREES TO INDEMNIFY AND HOLD
HARMLESS THE COMPANY AND ITS DIRECTORS AND EACH OFFICER OF THE COMPANY WHO
SIGNED THE REGISTRATION STATEMENT, AND EACH PERSON, IF ANY, WHO (I) CONTROLS THE
COMPANY WITHIN THE MEANING OF SECTION 15 OF THE SECURITIES ACT OR SECTION 20 OF
THE EXCHANGE ACT OR (II) IS CONTROLLED BY OR IS UNDER COMMON CONTROL WITH THE
COMPANY (A "COMPANY AFFILIATE") AGAINST ANY AND ALL LOSS, LIABILITY, CLAIM,
DAMAGE AND EXPENSE DESCRIBED IN THE INDEMNITY CONTAINED IN SECTION 10(C), AS
INCURRED, BUT ONLY WITH RESPECT TO UNTRUE STATEMENTS OR OMISSIONS, OR ALLEGED
UNTRUE STATEMENTS OR OMISSIONS, MADE IN THE REGISTRATION STATEMENT (OR ANY
AMENDMENTS THERETO) OR THE PROSPECTUS (OR ANY AMENDMENT OR SUPPLEMENT THERETO)
IN RELIANCE UPON AND IN CONFORMITY WITH INFORMATION RELATING TO WM SMITH AND
FURNISHED TO THE COMPANY BY WM SMITH.
(C)
PROCEDURE.
ANY PARTY THAT PROPOSES TO ASSERT THE RIGHT TO BE
INDEMNIFIED UNDER THIS SECTION 10 WILL, PROMPTLY AFTER RECEIPT OF NOTICE OF
COMMENCEMENT OF ANY ACTION AGAINST SUCH PARTY IN RESPECT OF WHICH A CLAIM IS TO
BE MADE AGAINST AN INDEMNIFYING PARTY OR PARTIES UNDER THIS SECTION 10, NOTIFY
EACH SUCH INDEMNIFYING PARTY OF THE COMMENCEMENT OF SUCH ACTION, ENCLOSING A
COPY OF ALL PAPERS SERVED, BUT THE OMISSION SO TO NOTIFY SUCH INDEMNIFYING PARTY
WILL NOT RELIEVE THE INDEMNIFYING PARTY FROM (I) ANY LIABILITY THAT IT MIGHT
HAVE TO ANY INDEMNIFIED PARTY OTHERWISE THAN UNDER THIS SECTION 10 AND (II) ANY
LIABILITY THAT IT MAY HAVE TO ANY INDEMNIFIED PARTY UNDER THE FOREGOING
PROVISION OF THIS SECTION 10 UNLESS, AND ONLY TO THE EXTENT THAT, SUCH OMISSION
RESULTS IN THE FORFEITURE OF SUBSTANTIVE RIGHTS OR DEFENSES BY THE INDEMNIFYING
PARTY.
IF ANY SUCH