Common use of Directed Share Program Indemnification Clause in Contracts

Directed Share Program Indemnification. (a) The Company agrees to indemnify and hold harmless each of Chase Securities Inc. and Wit Capital Corporation and each person (including each partner or officer thereof) who controls Chase Securities Inc. or Wit Capital Corporation within the meaning of Section 15 of the Securities Act from and against any and all losses, claims, damages or liabilities, joint or several, to which such indemnified parties or any of them may become subject under the Securities Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or the common law or otherwise, and the Company agrees to reimburse Chase Securities Inc., Wit Capital Corporation and such controlling person for any legal or other expenses (including, except as otherwise hereinafter provided, reasonable fees and disbursements of counsel) incurred by the respective indemnified parties in connection with defending against any such losses, claims, damages or liabilities or in connection with any investigation or inquiry of, or other proceeding which may be brought against, the respective indemnified parties, in each case arising out of or based upon (i) any untrue statement or alleged untrue statement of a material fact contained in any material prepared by the Company or with the prior written consent of the Company and counsel for the Company for distribution to Participants in connection with the Directed Stock Program, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the failure of any Participant to pay for and accept delivery of Directed Stock that the Participant has agreed to purchase, or (iii) the Directed Stock Program other than losses, claims, damages or liabilities (or expenses relating thereto) that are finally judicially determined to have resulted from bad faith or gross negligence of Chase Securities Inc., Wit Capital Corporation or such controlling person; provided, however, that the indemnity agreement contained in this Section 8(a) with respect to any Preliminary Prospectus shall not inure to the benefit of Chase Securities Inc. or Wit Capital Corporation from whom the person asserting any such losses, claims, damages, liabilities or expenses purchased the Stock which is the subject thereof (or to the benefit of any person controlling Chase Securities Inc. or Wit Capital Corporation) if at or prior to the written confirmation of the sale of such Stock a copy of the Prospectus (or the Prospectus as amended or supplemented) was not sent or delivered to such person and the untrue statement or omission of a material fact contained in such Preliminary Prospectus was corrected in the Prospectus (or the Prospectus as amended or supplemented) unless the failure is the result of noncompliance by the Company with Section 6(c) hereof. The indemnity agreements of the Company contained in this Section 8(a) and the representations and warranties of the Company contained in Section 2 hereof shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any indemnified party and shall survive the delivery of and payment for the Directed Stock.

Directed Share Program Indemnification. (a) The Company agrees to indemnify and hold harmless each of Chase Securities Inc. and Wit Capital Corporation Xxxxxx Xxxxxxx and each person (including each partner or officer thereof) person, if any, who controls Chase Securities Inc. or Wit Capital Corporation Xxxxxx Xxxxxxx within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act ("XXXXXX XXXXXXX ENTITIES"), from and against any and all losses, claims, damages or liabilitiesand liabilities (including, joint or severalwithout limitation, to which such indemnified parties or any of them may become subject under the Securities Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or the common law or otherwise, and the Company agrees to reimburse Chase Securities Inc., Wit Capital Corporation and such controlling person for any legal or other expenses (including, except as otherwise hereinafter provided, reasonable fees and disbursements of counsel) reasonably incurred by the respective indemnified parties in connection with defending against or investigating any such losses, claims, damages action or liabilities or in connection with any investigation or inquiry of, or other proceeding which may be brought against, the respective indemnified parties, in each case arising out of or based upon claim) (i) caused by any untrue statement or alleged untrue statement of a material fact contained in any material prepared by the Company or with the prior written consent of the Company and counsel for the Company for distribution to Participants in connection with the Directed Stock Program, Share Program or the caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, ; (ii) caused by the failure of any Participant to pay for and accept delivery of Directed Stock Shares that the Participant has agreed to purchase, ; or (iii) related to, arising out of, or in connection with the Directed Stock Program Share Program, other than losses, claims, damages or liabilities (or expenses relating thereto) that are finally judicially determined to have resulted from the bad faith or gross negligence of Chase Securities Inc., Wit Capital Corporation or such controlling person; provided, however, that the Xxxxxx Xxxxxxx Entities. (b) In case any proceeding (including any governmental investigation) shall be instituted involving any Xxxxxx Xxxxxxx Entity in respect of which indemnity agreement contained in this may be sought pursuant to Section 8(a), the Xxxxxx Xxxxxxx Entity seeing indemnity, shall promptly notify the Company in writing and the Company, upon request of the Xxxxxx Xxxxxxx Entity, shall retain counsel reasonably satisfactory to the Xxxxxx Xxxxxxx Entity to represent the Xxxxxx Xxxxxxx Entity and any others the Company may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any Xxxxxx Xxxxxxx Entity shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Xxxxxx Xxxxxxx Entity unless (i) with respect the Company shall have agreed to the retention of such counsel or (ii) the named parties to any Preliminary Prospectus shall not inure to such proceeding (including any impleaded parties) include both the benefit of Chase Securities Inc. or Wit Capital Corporation from whom the person asserting any such losses, claims, damages, liabilities or expenses purchased the Stock which is the subject thereof (or to the benefit of any person controlling Chase Securities Inc. or Wit Capital Corporation) if at or prior to the written confirmation of the sale of such Stock a copy of the Prospectus (or the Prospectus as amended or supplemented) was not sent or delivered to such person Company and the untrue statement or omission Xxxxxx Xxxxxxx Entity and representation of a material fact contained in such Preliminary Prospectus was corrected in the Prospectus (or the Prospectus as amended or supplemented) unless the failure is the result of noncompliance both parties by the Company with Section 6(c) hereof. The indemnity agreements of the Company contained in this Section 8(a) and the representations and warranties of the Company contained in Section 2 hereof shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any indemnified party and shall survive the delivery of and payment for the Directed Stock.same counsel would be inappropriate due to actual or

Directed Share Program Indemnification. (a) The Company agrees to indemnify and hold harmless (x) Xxxxxx Xxxxxxx, each of Chase Securities Inc. and Wit Capital Corporation and each person (including each partner or officer thereof) person, if any, who controls Chase Securities Inc. or Wit Capital Corporation Xxxxxx Xxxxxxx within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of Xxxxxx Xxxxxxx within the meaning of Rule 405 of the Securities Act (“Xxxxxx Xxxxxxx Entities”) from and against any and all losses, claims, damages or liabilitiesand liabilities (including, joint or severalwithout limitation, to which such indemnified parties or any of them may become subject under the Securities Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or the common law or otherwise, and the Company agrees to reimburse Chase Securities Inc., Wit Capital Corporation and such controlling person for any legal or other expenses (including, except as otherwise hereinafter provided, reasonable fees and disbursements of counsel) reasonably incurred by the respective indemnified parties in connection with defending against or investigating any such losses, claims, damages action or liabilities or in connection with any investigation or inquiry of, or other proceeding which may be brought against, the respective indemnified parties, in each case arising out of or based upon claim) (i) caused by any untrue statement or alleged untrue statement of a material fact contained in any material prepared by the Company or with the prior written consent of the Company and counsel for the Company for distribution to Participants in connection with the Directed Stock Program, Share Program or the caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, ; (ii) caused by the failure of any Participant to pay for and accept delivery of Directed Stock Shares that the Participant has agreed to purchase, ; or (iii) related to, arising out of, or in connection with the Directed Stock Program Share Program, other than losses, claims, damages or liabilities (or expenses relating thereto) that are finally judicially determined to have resulted from the bad faith or gross negligence of Chase Securities Inc., Wit Capital Corporation or such controlling person; provided, however, that the indemnity agreement contained in this Section 8(aXxxxxx Xxxxxxx Entities and (y) with respect to each Underwriter Indemnified Party from and against any Preliminary Prospectus shall not inure to the benefit of Chase Securities Inc. or Wit Capital Corporation from whom the person asserting any such and all losses, claims, damagesdamages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) related to, arising out of, or in connection with the Conifer Directed Share Program, other than losses, claims, damages or liabilities (or expenses purchased relating thereto) that are finally judicially determined to have resulted from the Stock which is the subject thereof (bad faith or to the benefit of any person controlling Chase Securities Inc. or Wit Capital Corporation) if at or prior to the written confirmation of the sale gross negligence of such Stock a copy of the Prospectus (or the Prospectus as amended or supplemented) was not sent or delivered to such person and the untrue statement or omission of a material fact contained in such Preliminary Prospectus was corrected in the Prospectus (or the Prospectus as amended or supplemented) unless the failure is the result of noncompliance by the Company with Section 6(c) hereof. The indemnity agreements of the Company contained in this Section 8(a) and the representations and warranties of the Company contained in Section 2 hereof shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any indemnified party and shall survive the delivery of and payment for the Directed StockUnderwriter.

Directed Share Program Indemnification. (a) The Company agrees to indemnify and hold harmless Xxxxxx Xxxxxxx, each of Chase Securities Inc. and Wit Capital Corporation and each person (including each partner or officer thereof) person, if any, who controls Chase Securities Inc. or Wit Capital Corporation Xxxxxx Xxxxxxx within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of Xxxxxx Xxxxxxx within the meaning of Rule 405 of the Securities Act (“Xxxxxx Xxxxxxx Entities”) from and against any and all losses, claims, damages or liabilitiesand liabilities (including, joint or severalwithout limitation, to which such indemnified parties or any of them may become subject under the Securities Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or the common law or otherwise, and the Company agrees to reimburse Chase Securities Inc., Wit Capital Corporation and such controlling person for any legal or other expenses (including, except as otherwise hereinafter provided, reasonable fees and disbursements of counsel) reasonably incurred by the respective indemnified parties in connection with defending against or investigating any such losses, claims, damages action or liabilities or in connection with any investigation or inquiry of, or other proceeding which may be brought against, the respective indemnified parties, in each case arising out of or based upon claim) (i) to the extent not covered by the indemnification provisions of Section 8(a), caused by any untrue statement or alleged untrue statement of a material fact contained in any material prepared by the Company or with the prior written consent of the Company and counsel for the Company for distribution to Participants in connection with the Directed Stock Program, Share Program or the caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, ; (ii) caused by the failure of any Participant to pay for and accept delivery of Directed Stock Shares that the Participant has agreed to purchase, ; or (iii) related to, arising out of, or in connection with the Directed Stock Program Share Program, other than losses, claims, damages or liabilities (or expenses relating thereto) that are finally judicially determined to have resulted from the bad faith or gross negligence of Chase Securities Inc.Xxxxxx Xxxxxxx Entities. For the avoidance of doubt, Wit Capital Corporation or such controlling person; provided, however, that the indemnity agreement contained nothing in this Section 8(a10(a) shall require the Company to indemnify and hold harmless any of the Xxxxxx Xxxxxxx Entities with respect reference to any Preliminary Prospectus shall not inure information that the Underwriters have furnished to the benefit Company expressly for use in the Registration Statement, the Time of Chase Securities Inc. or Wit Capital Corporation from whom Sale Prospectus, the person asserting Prospectus and any such losses, claims, damages, liabilities or expenses purchased the Stock which is the subject thereof (or to the benefit of any person controlling Chase Securities Inc. or Wit Capital Corporation) if at or prior to the written confirmation of the sale of such Stock a copy of the Issuer Free Writing Prospectus (or the Prospectus any amendment thereof or supplement thereto), which are as amended or supplemented) was not sent or delivered set forth in Schedule D, and referred to such person and the untrue statement or omission of a material fact contained in such Preliminary Prospectus was corrected in the Prospectus (or the Prospectus as amended or supplemented) unless the failure is the result of noncompliance by the Company with Section 6(c8(b) hereof. The indemnity agreements of the Company contained in this Section 8(a) and the representations and warranties of the Company contained in Section 2 hereof shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any indemnified party and shall survive the delivery of and payment for the Directed Stock.

Directed Share Program Indemnification. (a) The Company agrees -------------------------------------- to indemnify and hold harmless each of Chase Securities Inc. WDR and Wit Capital Corporation its affiliates and each person (including each partner or officer thereof) person, if any, who controls Chase Securities Inc. WDR or Wit Capital Corporation its affiliates within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act ("WDR Entities"), from and against any and all losses, claims, damages or liabilitiesand liabilities (including, joint or severalwithout limitation, to which such indemnified parties or any of them may become subject under the Securities Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or the common law or otherwise, and the Company agrees to reimburse Chase Securities Inc., Wit Capital Corporation and such controlling person for any legal or other expenses (including, except as otherwise hereinafter provided, reasonable fees and disbursements of counsel) reasonably incurred by the respective indemnified parties in connection with defending against or investigating any such losses, claims, damages action or liabilities or in connection with any investigation or inquiry of, or other proceeding which may be brought against, the respective indemnified parties, in each case arising out of or based upon claim) (i) caused by any untrue statement or alleged untrue statement of a material fact contained in any material prepared by the Company or with the prior written consent of the Company and counsel for the Company for distribution to Participants in connection with the Directed Stock Program, Share Program or the caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; provided, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased Shares, or any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such failure is the result of noncompliance by the Company with Section 4(b) hereof; (ii) caused by the failure of any Participant to pay for and accept delivery of Directed Stock Shares that the Participant has agreed to purchase, ; or (iii) related to, arising out of, or in connection with the Directed Stock Program Share Program, other than losses, claims, damages or liabilities (or expenses relating thereto) that are finally judicially determined to have resulted from the bad faith or gross negligence of Chase Securities Inc., Wit Capital Corporation or such controlling person; provided, however, that the indemnity agreement contained in this Section 8(a) with respect to any Preliminary Prospectus shall not inure to the benefit of Chase Securities Inc. or Wit Capital Corporation from whom the person asserting any such losses, claims, damages, liabilities or expenses purchased the Stock which is the subject thereof (or to the benefit of any person controlling Chase Securities Inc. or Wit Capital Corporation) if at or prior to the written confirmation of the sale of such Stock a copy of the Prospectus (or the Prospectus as amended or supplemented) was not sent or delivered to such person and the untrue statement or omission of a material fact contained in such Preliminary Prospectus was corrected in the Prospectus (or the Prospectus as amended or supplemented) unless the failure is the result of noncompliance by the Company with Section 6(c) hereof. The indemnity agreements of the Company contained in this Section 8(a) and the representations and warranties of the Company contained in Section 2 hereof shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any indemnified party and shall survive the delivery of and payment for the Directed StockWDR Entities.

Directed Share Program Indemnification. (a) The Company agrees to indemnify and hold harmless each of Chase Securities Inc. Xxxxxx Xxxxxxx and Wit Capital Corporation its affiliates and each person (including each partner or officer thereof) person, if any, who controls Chase Securities Inc. Xxxxxx Xxxxxxx or Wit Capital Corporation its affiliates within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act ("Xxxxxx Xxxxxxx Entities"), from and against any and all losses, claims, damages or liabilitiesand liabilities (including, joint or severalwithout limitation, to which such indemnified parties or any of them may become subject under the Securities Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or the common law or otherwise, and the Company agrees to reimburse Chase Securities Inc., Wit Capital Corporation and such controlling person for any legal or other expenses (including, except as otherwise hereinafter provided, reasonable fees and disbursements of counsel) reasonably incurred by the respective indemnified parties in connection with defending against or investigating any such losses, claims, damages action or liabilities or in connection with any investigation or inquiry of, or other proceeding which may be brought against, the respective indemnified parties, in each case arising out of or based upon claim) (i) caused by any untrue statement or alleged untrue statement of a material fact contained in any material prepared by the Company or with the prior written consent of the Company and counsel for the Company for distribution to Participants in connection with the Directed Stock Program, Share Program or the caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; provided, however, that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased Shares, or any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such failure is the result of noncompliance by the Company with Section 6(a) hereof; (ii) caused by the failure of any Participant to pay for and accept delivery of Directed Stock Shares that the Participant has agreed to purchase, ; or (iii) related to, arising out of, or in connection with the Directed Stock Program Share Program, other than losses, claims, damages or liabilities (or expenses relating thereto) that are finally judicially determined to have resulted from the bad faith or gross negligence of Chase Securities Inc., Wit Capital Corporation or such controlling person; provided, however, that the indemnity agreement contained in this Section 8(a) with respect to any Preliminary Prospectus shall not inure to the benefit of Chase Securities Inc. or Wit Capital Corporation from whom the person asserting any such losses, claims, damages, liabilities or expenses purchased the Stock which is the subject thereof (or to the benefit of any person controlling Chase Securities Inc. or Wit Capital Corporation) if at or prior to the written confirmation of the sale of such Stock a copy of the Prospectus (or the Prospectus as amended or supplemented) was not sent or delivered to such person and the untrue statement or omission of a material fact contained in such Preliminary Prospectus was corrected in the Prospectus (or the Prospectus as amended or supplemented) unless the failure is the result of noncompliance by the Company with Section 6(c) hereof. The indemnity agreements of the Company contained in this Section 8(a) and the representations and warranties of the Company contained in Section 2 hereof shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any indemnified party and shall survive the delivery of and payment for the Directed StockXxxxxx Xxxxxxx Entities.

Directed Share Program Indemnification. (a) The Company agrees to indemnify and hold harmless each of Chase Securities Inc. and Wit Capital Corporation Xxxxxx Brothers and each person (including each partner or officer thereof) person, if any, who controls Chase Securities Inc. or Wit Capital Corporation Xxxxxx Brothers within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages or liabilitiesand liabilities (including, joint or severalwithout limitation, to which such indemnified parties or any of them may become subject under the Securities Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or the common law or otherwise, and the Company agrees to reimburse Chase Securities Inc., Wit Capital Corporation and such controlling person for any legal or other expenses (including, except as otherwise hereinafter provided, reasonable fees and disbursements of counsel) reasonably incurred by the respective indemnified parties in connection with defending against or investigating any such losses, claims, damages action or liabilities or in connection with any investigation or inquiry of, or other proceeding which may be brought against, the respective indemnified parties, in each case arising out of or based upon claim) (i) caused by any untrue statement or alleged untrue statement of a material fact contained in any material prepared by the Company or with the prior written consent of the Company and counsel for the Company for distribution to Participants in connection with the Directed Stock Share Program, or the caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, ; (ii) ii caused by the failure of any Participant to pay for and accept delivery of Directed Stock Shares that the Participant has agreed to purchase; or (ii related to, arising out of, or (iii) in connection with the Directed Stock Share Program other than losses, claims, damages or liabilities (or expenses relating thereto) that are finally judicially determined to have resulted from the bad faith or gross negligence of Chase Securities Inc., Wit Capital Corporation Xxxxxx Brothers or such controlling person; provided, provided however, that the foregoing indemnity agreement contained in this Section 8(a) with respect to any Preliminary Prospectus preliminary prospectus shall not inure to the benefit of Chase Securities Inc. Xxxxxx Brothers or Wit Capital Corporation from whom any controlling person, if a copy of the person asserting Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of Xxxxxx Brothers to such lossesperson, claimsif required by law so to have been delivered, damages, liabilities or expenses purchased the Stock which is the subject thereof (or to the benefit of any person controlling Chase Securities Inc. or Wit Capital Corporation) if at or prior to the written confirmation of the sale of the Directed Shares to such Stock a copy of person, and if the Prospectus (or the Prospectus as so amended or supplemented) was not sent or delivered would have cured the defect giving rise to such person and the untrue statement losses, claims, damages or omission of a material fact contained in such Preliminary Prospectus was corrected in the Prospectus (or the Prospectus as amended or supplemented) unless the failure is the result of noncompliance by the Company with Section 6(c) hereof. The indemnity agreements of the Company contained in this Section 8(a) and the representations and warranties of the Company contained in Section 2 hereof shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any indemnified party and shall survive the delivery of and payment for the Directed Stockliabilities.

Directed Share Program Indemnification. (a) The Company agrees to indemnify and hold harmless each of Chase Securities Inc. Xxxxxx Xxxxxxx and Wit Capital Corporation its affiliates and each person (including each partner or officer thereof) person, if any, who controls Chase Securities Inc. Xxxxxx Xxxxxxx or Wit Capital Corporation its affiliates within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act ("Xxxxxx Xxxxxxx Entities"), from and against any and all losses, claims, damages or liabilitiesand liabilities (including, joint or severalwithout limitation, to which such indemnified parties or any of them may become subject under the Securities Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or the common law or otherwise, and the Company agrees to reimburse Chase Securities Inc., Wit Capital Corporation and such controlling person for any legal or other expenses (including, except as otherwise hereinafter provided, reasonable fees and disbursements of counsel) reasonably incurred by the respective indemnified parties in connection with defending against or investigating any such losses, claims, damages action or liabilities or in connection with any investigation or inquiry of, or other proceeding which may be brought against, the respective indemnified parties, in each case arising out of or based upon claim) (i) caused by any untrue statement or alleged untrue statement of a material fact contained in any material prepared by the Company or with the prior written consent of the Company and counsel for the Company for distribution to Participants in connection with the Directed Stock Share Program, or the caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, ; (ii) caused by the failure of any Participant to pay for and accept delivery of Directed Stock Shares that the Participant has agreed to purchase, ; or (iii) related to, arising out of, or in connection with the Directed Stock Share Program other than losses, claims, damages or liabilities (or expenses relating thereto) that are finally judicially determined to have resulted from the bad faith or gross negligence of Chase Securities Inc., Wit Capital Corporation or such controlling person; provided, however, that the Xxxxxx Xxxxxxx Entities. In case any proceeding (including any governmental investigation) shall be instituted involving any Xxxxxx Xxxxxxx Entity in respect of which indemnity agreement contained in this may be sought pursuant to Section 8(a), the Xxxxxx Xxxxxxx Entity seeking indemnity shall promptly notify the Company in writing and the Company, upon request of the Xxxxxx Xxxxxxx Entity, shall retain counsel reasonably satisfactory to the Xxxxxx Xxxxxxx Entity to represent the Xxxxxx Xxxxxxx Entity and any other the Company may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any Xxxxxx Xxxxxxx Entity shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Xxxxxx Xxxxxxx Entity unless (I) with respect the Company shall have agreed to the retention of such counsel or (ii) the named parties to any Preliminary Prospectus such proceeding (including any impleaded parties) include both the Company and the Xxxxxx Xxxxxxx Entity and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Company shall not, in respect of the legal expenses of the Xxxxxx Xxxxxxx Entities in connection with any proceeding or related proceedings the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Xxxxxx Xxxxxxx Entities. Any such firm for the Xxxxxx Xxxxxxx Entities shall be designated in writing by Xxxxxx Xxxxxxx. The Company shall not inure to the benefit of Chase Securities Inc. or Wit Capital Corporation from whom the person asserting be liable for any such losses, claims, damages, liabilities or expenses purchased the Stock which is the subject thereof (or to the benefit settlement of any person controlling Chase Securities Inc. proceeding effected without its written consent, but if settled with such consent or Wit Capital Corporation) if there be a final judgment for the plaintiff, the Company agrees to indemnify the Xxxxxx Xxxxxxx Entities from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at or any time a Xxxxxx Xxxxxxx Entity shall have requested the Company to reimburse it for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the Company agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by the Company of the aforesaid request and (ii) the Company shall not have reimbursed the Xxxxxx Xxxxxxx Entity in accordance with such request prior to the date of such settlement. The Company shall not, without the prior written confirmation consent of Xxxxxx Xxxxxxx, effect any settlement of any pending or threatened proceeding in respect of which any Xxxxxx Xxxxxxx Entity is or could have been a party and indemnity could have been sought hereunder by such Xxxxxx Xxxxxxx Entity, unless such settlement includes an unconditional release of the sale Xxxxxx Xxxxxxx Entities from all liability on claims that are the subject matter of such Stock a copy of the Prospectus (or the Prospectus as amended or supplemented) was not sent or delivered to such person and the untrue statement or omission of a material fact contained in such Preliminary Prospectus was corrected in the Prospectus (or the Prospectus as amended or supplemented) unless the failure is the result of noncompliance by the Company with Section 6(c) hereof. The indemnity agreements of the Company contained in this Section 8(a) and the representations and warranties of the Company contained in Section 2 hereof shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any indemnified party and shall survive the delivery of and payment for the Directed Stockproceeding.

Directed Share Program Indemnification. (a) The Company agrees to indemnify and hold harmless each of Chase Securities Inc. and Wit Capital Corporation (i) Credit Suisse and each person (including each partner or officer thereof) person, if any, who controls Chase Securities Inc. or Wit Capital Corporation Credit Suisse within the meaning of Section 15 of the Act or Section 20 of the Exchange Act and each affiliate of Credit Suisse within the meaning of Rule 405 of the Securities Act (collectively, the “Credit Suisse Entities”) and (ii) Xxxxxx Xxxxxxx and each person, if any, who controls Xxxxxx Xxxxxxx within the meaning of Section 15 of the Act or Section 20 of the Exchange Act and each affiliate of Xxxxxx Xxxxxxx within the meaning of Rule 405 of the Securities Act (collectively, the “Xxxxxx Xxxxxxx Entities”), from and against any and all losses, claims, damages or liabilitiesand liabilities (including, joint or severalwithout limitation, to which such indemnified parties or any of them may become subject under the Securities Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or the common law or otherwise, and the Company agrees to reimburse Chase Securities Inc., Wit Capital Corporation and such controlling person for any legal or other expenses (including, except as otherwise hereinafter provided, reasonable fees and disbursements of counsel) reasonably incurred by the respective indemnified parties in connection with defending against or investigating any such losses, claims, damages action or liabilities or in connection with any investigation or inquiry of, or other proceeding which may be brought against, the respective indemnified parties, in each case arising out of or based upon claim) (i) caused by any untrue statement or alleged untrue statement of a material fact contained in any material prepared by the Company or with the prior written consent of the Company and counsel for the Company for distribution to Participants in connection with the Directed Stock Program, Share Program or the caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, ; (ii) caused by the failure of any Participant to pay for and accept delivery of Directed Stock Shares that the Participant has agreed to purchase, ; or (iii) related to, arising out of, or in connection with the Directed Stock Program Share Program, other than losses, claims, damages or liabilities (or expenses relating thereto) that are finally judicially determined to have resulted from the bad faith or gross negligence of Chase Securities Inc., Wit Capital Corporation or such controlling person; provided, however, that the indemnity agreement contained in this Section 8(a) with respect to any Preliminary Prospectus shall not inure to the benefit of Chase Securities Inc. or Wit Capital Corporation from whom the person asserting any such losses, claims, damages, liabilities or expenses purchased the Stock which is the subject thereof (or to the benefit of any person controlling Chase Securities Inc. or Wit Capital Corporation) if at or prior to the written confirmation of the sale of such Stock a copy of the Prospectus (Credit Suisse Entities or the Prospectus as amended or supplemented) was not sent or delivered to such person and the untrue statement or omission of a material fact contained in such Preliminary Prospectus was corrected in the Prospectus (or the Prospectus as amended or supplemented) unless the failure is the result of noncompliance by the Company with Section 6(c) hereof. The indemnity agreements of the Company contained in this Section 8(a) and the representations and warranties of the Company contained in Section 2 hereof shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any indemnified party and shall survive the delivery of and payment for the Directed StockXxxxxx Xxxxxxx Entities.

Directed Share Program Indemnification. (a) The Company agrees to indemnify and hold harmless each of Chase Securities Inc. and Wit Capital Corporation Xxxxxx Xxxxxxx and each person (including each partner or officer thereof) person, if any, who controls Chase Securities Inc. or Wit Capital Corporation Xxxxxx Xxxxxxx within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act ("XXXXXX XXXXXXX ENTITIES"), from and against any and all losses, claims, damages or liabilitiesand liabilities (including, joint or severalwithout limitation, to which such indemnified parties or any of them may become subject under the Securities Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or the common law or otherwise, and the Company agrees to reimburse Chase Securities Inc., Wit Capital Corporation and such controlling person for any legal or other expenses (including, except as otherwise hereinafter provided, reasonable fees and disbursements of counsel) reasonably incurred by the respective indemnified parties in connection with defending against or investigating any such losses, claims, damages action or liabilities or in connection with any investigation or inquiry of, or other proceeding which may be brought against, the respective indemnified parties, in each case arising out of or based upon claim) (i) caused by any untrue statement or alleged untrue statement of a material fact contained in any material prepared by the Company or with the prior written consent of the Company and counsel for the Company for distribution to Participants in connection with the Directed Stock Program, Share Program or the caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, ; (ii) caused by the failure of any Participant to pay for and accept delivery of Directed Stock Shares that the Participant has agreed to purchase, ; or (iii) related to, arising out of, or in connection with the Directed Stock Program Share Program, other than losses, claims, damages or liabilities (or expenses relating thereto) that are finally judicially determined to have resulted from the bad faith or gross negligence of Chase Securities Inc.Xxxxxx Xxxxxxx Entities. (b) In case any proceeding (including any governmental investigation) shall be instituted involving any Xxxxxx Xxxxxxx Entity in respect of which indemnity may be sought pursuant to Section 10(a), Wit Capital Corporation the Xxxxxx Xxxxxxx Entity seeing indemnity, shall promptly notify the Company in writing and the Company, upon request of the Xxxxxx Xxxxxxx Entity, shall retain counsel reasonably satisfactory to the Xxxxxx Xxxxxxx Entity to represent the Xxxxxx Xxxxxxx Entity and any others the Company may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any Xxxxxx Xxxxxxx Entity shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Xxxxxx Xxxxxxx Entity unless (i) the Company shall have agreed to the retention of such counsel or such controlling person; provided, however, that (ii) the indemnity agreement contained in this Section 8(a) with respect named parties to any Preliminary Prospectus such proceeding (including any impleaded parties) include both the Company and the Xxxxxx Xxxxxxx Entity and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Company shall not, in respect of the legal expenses of the Xxxxxx Xxxxxxx Entities in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Xxxxxx Xxxxxxx Entities. Any such separate firm for the Xxxxxx Xxxxxxx Entities shall be designated in writing by Xxxxxx Xxxxxxx. The Company shall not inure to the benefit of Chase Securities Inc. or Wit Capital Corporation from whom the person asserting be liable for any such losses, claims, damages, liabilities or expenses purchased the Stock which is the subject thereof (or to the benefit settlement of any person controlling Chase Securities Inc. or Wit Capital Corporation) if at or prior to the proceeding effected without its written confirmation of the sale of such Stock a copy of the Prospectus (or the Prospectus as amended or supplemented) was not sent or delivered to such person and the untrue statement or omission of a material fact contained in such Preliminary Prospectus was corrected in the Prospectus (or the Prospectus as amended or supplemented) unless the failure is the result of noncompliance by the Company with Section 6(c) hereof. The indemnity agreements of the Company contained in this Section 8(a) and the representations and warranties of the Company contained in Section 2 hereof shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any indemnified party and shall survive the delivery of and payment for the Directed Stock.consent, but if

Directed Share Program Indemnification. (a) The Company agrees to indemnify and hold harmless Xxxxxx Xxxxxxx, each of Chase Securities Inc. and Wit Capital Corporation and each person (including each partner or officer thereof) person, if any, who controls Chase Securities Inc. or Wit Capital Corporation Xxxxxx Xxxxxxx within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of Xxxxxx Xxxxxxx within the meaning of Rule 405 of the Securities Act (“Xxxxxx Xxxxxxx Entities”) from and against any and all losses, claims, damages or liabilitiesand liabilities (including, joint or severalwithout limitation, to which such indemnified parties or any of them may become subject under the Securities Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or the common law or otherwise, and the Company agrees to reimburse Chase Securities Inc., Wit Capital Corporation and such controlling person for any legal or other expenses (including, except as otherwise hereinafter provided, reasonable fees and disbursements of counsel) reasonably incurred by the respective indemnified parties in connection with defending against or investigating any such losses, claims, damages action or liabilities claim) (1) arising out of or in connection with any investigation or inquiry of, or other proceeding which may be brought against, the respective indemnified parties, in each case arising out of or based upon (i) any untrue statement or alleged untrue statement of a material fact contained in any material prepared by the Company or with the prior written consent of the Company and counsel for the Company for distribution to Participants in connection with the Directed Stock Program, Share Program or the caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, ; (ii2) caused by the failure of any Participant to pay for and accept delivery of Directed Stock Shares that the Participant has agreed to purchase; or (3) related to, arising out of, or (iii) in connection with the Directed Stock Program Share Program, other than losses, claims, damages or liabilities (or expenses relating thereto) that are finally judicially determined to have resulted from the bad faith or faith, gross negligence or willful misconduct of Chase Securities Inc., Wit Capital Corporation or such controlling person; provided, however, Xxxxxx Xxxxxxx Entities provided that the indemnity agreement contained in this Section 8(a) with respect to any Preliminary Prospectus Company shall not inure be liable for any such loss, liability, cost, action or claim arising from any statement or omissions made in reliance on and in conformity with written information provided by any Xxxxxx Xxxxxxx Entity to the benefit of Chase Securities Inc. Company or Wit Capital Corporation from whom the person asserting any such losses, claims, damages, liabilities or expenses purchased the Stock which is the subject thereof (or to the benefit of any person controlling Chase Securities Inc. or Wit Capital Corporation) if at or prior to the written confirmation of the sale of such Stock a copy of the Prospectus (or the Prospectus as amended or supplemented) was not sent or delivered to such person and the untrue statement or omission of a material fact contained in such Preliminary Prospectus was corrected its representatives expressly for use in the Prospectus (Registration Statement, the Prospectus, any Permitted Free Writing Prospectus, the Disclosure Package or the Prospectus as amended any amendment or supplemented) unless the failure is the result of noncompliance by the Company with Section 6(c) hereof. The indemnity agreements of the Company contained in this Section 8(a) and the representations and warranties of the Company contained in Section 2 hereof shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any indemnified party and shall survive the delivery of and payment for the Directed Stocksupplement thereto.