Common use of Indemnification of Investor Clause in Contracts

Indemnification of Investor. The Company agrees to indemnify and hold harmless the Investor and each person, if any, who controls the Investor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows: (i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including any Prospectus, or in any offering circular or other document, as applicable, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statement therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicable, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 11.3(d) below) any such settlement is effected with the written consent of the Company; and (iii) against any and all expenses whatsoever, as incurred (including the fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by the Investor expressly for use in the Registration Statement (or any amendment thereto), including any Prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicable.

Indemnification of Investor. The Company agrees to indemnify and hold harmless the Investor and each person, if any, who controls the Investor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows: (i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including any Prospectusprospectus, or in any offering circular or other document, as applicable, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statement therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Prospectus prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicable, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 11.3(d11.2(d) below) any such settlement is effected with the written consent of the Company; and (iii) against any and all expenses whatsoever, as incurred (including the fees and disbursements of counselcounsel chosen by the Investor), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by the Investor expressly for use in the Registration Statement (or any amendment thereto), including any Prospectus prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicable.

Indemnification of Investor. The Company agrees to indemnify and hold harmless the Investor and each person, if any, who controls the Investor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows: (i) against any and all loss, liability, claim, damage and commercially reasonable expense whatsoever, as incurredincurred on a monthly basis, arising out of any untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including any Prospectus, or in any offering circular or other document, as applicable, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statement statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicable, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurredincurred on a monthly basis, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that PROVIDED THAT (subject to Section 11.3(d) below) any such settlement is effected with the written consent of the Company; and (iii) against any and all expenses whatsoever, as incurred on a monthly basis (including the fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; providedPROVIDED, however, that this the indemnity agreement set forth in this Section 11.3(a) shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by the Investor expressly for use in the Registration Statement (or any amendment thereto), including any Prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicable.

Indemnification of Investor. The Company agrees to indemnify and hold harmless the Investor and each person, if any, who controls the Investor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows: (i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including any Prospectusprospectus, or in any offering circular or other document, as applicable, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statement therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Prospectus prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicable, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 11.3(d4.1(d) below) any such settlement is effected with the written consent of the Company; and (iii) against any and all expenses whatsoever, as incurred (including the fees and disbursements of counselone counsel chosen by the Investor Agent who shall represent all Investors under the Investment Agreement), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (ii ) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by the Investor expressly for use in the Registration Statement (or any amendment thereto), including any Prospectus prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicable.

Indemnification of Investor. The In the event that the Company agrees to Registers any of the Registrable Shares, the Company shall indemnify and hold harmless INVESTOR, its officers and directors, and each underwriter of such of the Investor Registrable Shares (including any broker or dealer through whom such of the shares may be sold) and each person, if any, who controls the Investor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows: (i) INVESTOR, from and against any and all losslosses, claims, damages, expenses or liabilities, joint or several, to which they or any of them become subject under applicable securities law, and, except as hereinafter provided, will reimburse INVESTOR and each of the underwriters and each such controlling person, if any, for any legal or other expenses reasonably incurred by them or any of them in connection with investigating or defending any actions, whether or not resulting in any liability, claiminsofar as such losses, damage and expense whatsoeverclaims, as incurreddamages, arising expenses, liabilities or actions arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including any Prospectus, the Registration Statement as from time to time amended or in any offering circular supplement) or other document, as applicable, arise out of or are based upon the omission or alleged omission therefrom of to state therein a material fact required to be stated therein or necessary to make the statement therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicable, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading; (ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, based upon any unless such untrue statement or omission, omission was made in such Registration Statement (or any such alleged untrue statement a supplemented or omission; provided that (subject to Section 11.3(damended version thereof) below) any such settlement is effected with the written consent of the Company; and (iii) against any and all expenses whatsoever, as incurred (including the fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company in connection therewith by the Investor INVESTOR or any underwriter expressly for use therein. Promptly after receipt by INVESTOR or any person controlling any of them of notice of the commencement of any action in respect of which indemnity may be sought against the Company, INVESTOR or such underwriter or such controlling person, as the case may be, will notify the Company in writing of the commencement thereof, and, subject to the provisions hereinafter stated, the Company shall assume the defense of such action (including the employment of counsel, who shall be counsel satisfactory to INVESTOR or such underwriter or controlling person, as the case may be, and the payment of all expenses) insofar as such action shall relate to any alleged liability in respect of which indemnity may be sought against the Company. INVESTOR or any underwriter or any such controlling person shall have the right to employ separate counsel in any such action and to participate in the Registration Statement (or defense thereof but the fees and expenses of such counsel shall be at INVESTOR's sole expense. The Company shall not be liable to indemnify any amendment thereto), including person for any Prospectus (or settlement of any amendment or supplement thereto), or in any offering circular or other document, as applicablesuch action effected without the Company's consent.

Indemnification of Investor. The Company agrees to In the event that the Issuer registers any of the Registrable Shares under the Securities Act, the Issuer will indemnify and hold harmless the Investor and each personunderwriter of the Registrable Shares so registered (including any broker or dealer through whom such shares may be sold) and each Person, if any, who controls the Investor or any such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows: (i) from and against any and all losslosses, claims, damages, expenses, or liabilities, joint or several, to which they or any of them become subject under the Securities Act or under any other statute or at common law or otherwise, and, except as hereinafter provided, will reimburse the Investor, each such underwriter and each such controlling person, if any, for any legal or other expenses reasonably incurred by them or any of them in connection with investigating or defending any actions whether or not resulting in any liability, claiminsofar as such losses, damage and expense whatsoeverclaims, as incurreddamages, arising expenses, liabilities or actions arise out of any untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including any Prospectus, or in any offering circular or other document, as applicable, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statement therein not misleading or arising out of are based upon any untrue statement or alleged untrue statement of a material fact contained in the registration statement, in any Prospectus preliminary or amended preliminary prospectus, or in the prospectus (or any amendment the registration statement or supplement theretoprospectus as from time to time amended or supplemented by the Issuer), or in any offering circular arise out of or other document, as applicable, or are based upon the omission or alleged omission therefrom of to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading; (ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation violation by the Issuer of any rule or proceeding by any governmental agency or body, based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 11.3(d) below) any such settlement is effected with regulation promulgated under the written consent of the Company; and (iii) against any and all expenses whatsoever, as incurred (including the fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, Securities Act applicable to the extent that any Issuer and relating to action or inaction required in connection with such expense is not paid under registration, unless (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any such untrue statement or omission or alleged untrue statement or omission was made in such registration statement, preliminary or amended preliminary prospectus, or prospectus in reliance upon and in conformity with written information furnished in writing to the Company Issuer in connection therewith by the Investor Investor, any such underwriter or any such controlling person expressly for use therein, or unless (ii) in the Registration Statement case of a sale directly by such holder of Registrable Shares (including a sale of such Registrable Shares through any underwriter retained by such holder of Registrable Shares to engage in a distribution solely on behalf of such holder of Registrable Shares), such untrue statement or alleged untrue statement or omission or alleged omission was contained in a preliminary prospectus and corrected in a final or amended prospectus, and the Investor failed to deliver a copy of the final or amended prospectus at or prior to the confirmation of the sale of the Registrable Shares to the person asserting any such loss, claim, damage or liability in any case where such delivery is required by the Securities Act. Promptly after receipt by the Investor, any underwriter or any amendment theretocontrolling person of notice of the commencement of any action in respect of which indemnity may be sought against the Issuer, the Investor, or such underwriter or such controlling person, as the case may be, will notify the Issuer in writing of the commencement thereof, and, subject to the provisions hereinafter stated, the Issuer shall assume the defense of such action (including the employment of counsel, who shall be counsel reasonably satisfactory to the Investor, such underwriter or such controlling person, as the case may be), including and the payment of expenses insofar as such action shall relate to any Prospectus (alleged liability in respect of which indemnity may be sought against the Issuer. The Investor, any such underwriter or any amendment or supplement thereto), or such controlling person shall have the right to employ separate counsel in any offering circular such action and to participate in the defense thereof but the fees and expenses of such counsel shall not be at the expense of the Issuer unless the employment of such counsel has been specifically authorized in writing by the Issuer. The Issuer shall not be liable to indemnify any person for any settlement of any such action effected without the Issuer's written consent. The Issuer shall not, except with the approval of each party being indemnified under this Section 4, consent to entry of any judgment or other document, enter into any settlement which does not include as applicablean unconditional term thereof the giving by the claimant or plaintiff to the parties being so indemnified of a release from all liability in respect to such claim or litigation.

Indemnification of Investor. The Company agrees to indemnify and hold harmless the Investor and each person, if any, who controls the Investor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows: (i) against any and all loss, liability, claim, damage and reasonable expense whatsoever, as incurred, arising out of any untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including any ) or the Prospectus, or in any offering circular or other document, as applicable, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statement therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any the Prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicable, ) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) against any and all loss, liability, claim, damage and reasonable expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 11.3(d10.4(d) below) any such settlement is effected with the written consent of the Company; and (iii) against any and all reasonable expenses whatsoever, as incurred (including the fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatenedthreatened in writing, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this the indemnity agreement obligation of the Company shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Investor expressly for use in the Registration Statement (or any amendment thereto), including any the Prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicable.

Indemnification of Investor. The Company agrees to indemnify and hold harmless the Investor and each person, if any, who controls the Investor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows: (i) against any and all loss, liability, claim, damage and reasonable expense whatsoever, as incurred, arising out of any untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including any ) or the Prospectus, or in any offering circular or other document, as applicable, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statement therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any the Prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicable, ) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) against any and all loss, liability, claim, damage and reasonable expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 11.3(d8.1(d) below) any such settlement is effected with the written consent of the Company; and (iii) against any and all reasonable expenses whatsoever, as incurred (including the fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatenedthreatened in writing, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this no indemnity agreement obligation of the Company shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by the Investor expressly for use in the Registration Statement (or any amendment thereto), including any Prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicable.,

Indemnification of Investor. The Company agrees to indemnify and hold harmless the Investor and each person, if any, who controls the Investor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows: (i) against any and all loss, liability, claim, damage and reasonable expense whatsoever, as incurred, arising out of any untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including any ) or the Prospectus, or in any offering circular or other document, as applicable, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statement therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any the Prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicable, ) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) against any and all loss, liability, claim, damage and reasonable expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 11.3(d) below) any such settlement is effected with the written consent of the Company; and (iii) against any and all reasonable expenses whatsoever, as incurred (including the fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatenedthreatened in writing, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this no indemnity agreement obligation of the Company shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Investor expressly for use in the Registration Statement (or any amendment thereto), including any the Prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicable.

Indemnification of Investor. The Company agrees to indemnify and hold harmless the Investor and each person, if any, who controls the Investor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows: (i) against any and all loss, liability, claim, damage and commercially reasonable expense whatsoever, as incurredincurred on a monthly basis, arising out of any untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including any Prospectus, or in any offering circular or other document, as applicable, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statement statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicable, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurredincurred on a monthly basis, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 11.3(d) below) any such settlement is effected with the written consent of the Company; and (iii) against any and all expenses whatsoever, as incurred on a monthly basis (including the fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this the indemnity agreement set forth in this Section 11.3(a) shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by the Investor expressly for use in the Registration Statement (or any amendment thereto), including any Prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicable.

Indemnification of Investor. The Company agrees to indemnify and hold --------------------------- harmless the Investor and each person, if any, who controls the Investor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows: (i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including any Prospectusprospectus, or in any offering circular or other document, as applicable, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statement therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Prospectus prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicable, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 11.3(d) below) any such settlement is effected with the written consent of the Company; and (iii) against any and all expenses whatsoever, as incurred (including the fees and disbursements of counselcounsel chosen by the Investor), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (ii ) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by the Investor expressly for use in the Registration Statement (or any amendment thereto), including any Prospectus prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicable.

Indemnification of Investor. The In the event of any registration of any of the shares of Common Stock under the Securities Act pursuant to this Agreement, the Company agrees to will indemnify and hold harmless the Investor Investor, and each other person, if any, who controls the Investor within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as follows: amended (ithe "Exchange Act") against any and all losslosses, liabilityclaims, claimdamages or liabilities, damage and expense whatsoeverjoint or several, to which such Investor or controlling person may become subject under the Securities Act, the Exchange Act, state securities or Blue Sky laws or otherwise, insofar as incurredsuch losses, arising out of claims, damages or liabilities are based upon any untrue statement or alleged untrue statement of a any material fact contained in the Registration Statement (under which the shares of Common Stock were registered under the Securities Act, any preliminary prospectus or final prospectus contained in the Registration Statement under which the shares of Common Stock were registered under the Securities Act, any preliminary prospectus or final prospectus contained in the Registration Statement, or any amendment thereto), including any Prospectusor supplement to such Registration Statement, or in any offering circular arise out of or other document, as applicable, or are based upon the omission or alleged omission therefrom of to state a material fact required to be stated therein or necessary to make the statement statements therein not misleading or arising out of misleading; and the Company will reimburse such Investor and each such controlling person for any untrue statement or alleged untrue statement of a material fact contained in any Prospectus (or any amendment or supplement thereto), or in any offering circular legal or other document, as applicable, expense reasonably incurred by such Investor or the omission controlling person in connection with investigating or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) against defending any and all such loss, liability, claim, damage and expense whatsoeverdamage, as incurredliability or action; provided, to however, that the extent of the aggregate amount paid Company should not be liable in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 11.3(d) below) any such settlement is effected with the written consent of the Company; and (iii) against any and all expenses whatsoever, as incurred (including the fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, case to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising liability arises out of or is based upon any untrue statement or omission made in such Registration Statement, preliminary prospectus or alleged untrue statement final prospectus, or omission made any such amendment or supplement, in reliance upon and in conformity with written information furnished to the Company Company, in writing, by the or on behalf of such Investor expressly for or controlling person specifically in use in the Registration Statement (or any amendment thereto), including any Prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicablepreparation thereof.

Indemnification of Investor. The In consideration of the Investor’s execution and delivery of this Agreement and the acquisition of the Shares hereunder and in addition to all of the Company’s other obligations under this Agreement, the Company agrees to shall defend, protect, indemnify and hold harmless the Investor and each personall of its Affiliates, if anymembers, who controls the Investor within the meaning of Section 15 officers, directors, and employees, and any of the Securities Act foregoing person’s agents or Section 20 of other Representatives (including, without limitation, those retained in connection with the Exchange Act as follows: transactions contemplated by this Agreement) (icollectively, the “Investor Indemnitees”) from and against any and all lossactions, liabilitycauses of action, claimsuits, damage claims, losses, costs, penalties, fees, liabilities and expense whatsoeverdamages, and expenses in connection therewith (irrespective of whether any such Investor Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable attorneys’ fees of the Investor Indemnitee’s choice and disbursements (the “Investor Indemnified Liabilities”), incurred by any Investor Indemnitee as incurreda result of, or arising out of, or relating to (1) any misrepresentation or breach of any representation or warranty made by the Company in this Agreement or any other certificate, instrument or document contemplated hereby or thereby, (2) any breach of any covenant, agreement or obligation of the Company contained in this Agreement or any other certificate, instrument or document contemplated therein or (3) any cause of action, suit or claim brought or made against such Investor Indemnitee and arising out of any untrue statement or resulting from the execution, delivery, performance or enforcement of a material fact contained in the Registration Statement (this Agreement or any amendment thereto)other certificate, including instrument or document contemplated hereby or thereby, other than as set forth in Section 7.2 or with respect to Investor Indemnified Liabilities which directly and primarily result from (A) a breach of any Prospectusof such Investor’s representations and warranties, covenants or agreements made in this Ag or any offering circular certificate, instrument or document contemplated therein or (B) the gross negligence, bad faith, willful misconduct or malfeasance of such Investor or any other documentInvestor Indemnitee. To the extent that the foregoing undertaking by the Company may be unenforceable for any reason, as applicablethe Company shall make the maximum contribution to the payment and satisfaction of each of the Investor Indemnified Liabilities which is permissible under applicable law. Notwithstanding the provisions of this Section 7.1, or the omission or alleged omission therefrom of a material fact Company shall not be required to be stated therein or necessary contribute any amount pursuant to make the statement therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained this Agreement in any Prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicable, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent excess of the aggregate amount purchase price paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 11.3(d) below) any such settlement is effected with the written consent of the Company; and (iii) against any and all expenses whatsoever, as incurred (including the fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by the Investor expressly for use in the Registration Statement (or any amendment thereto), including any Prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicableShares.

Indemnification of Investor. The Company agrees to and the Operating Partnership, jointly and severally, shall indemnify and hold harmless Investor, the directors, officers, employees, counsel, agents and Affiliates of Investor and each personPerson, if any, who controls the Investor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows: (i) from and against any and all losslosses, liabilityclaims, claimliabilities, damage expenses and expense whatsoeverdamages (including any and all investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding between any of the indemnified parties and any indemnifying parties or between any indemnified party and any third party, or otherwise, or any claim asserted) to which they, or any of them, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as incurredsuch losses, arising claims, liabilities, expenses or damages arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including any Prospectusinformation deemed to be a part thereof pursuant to Rules 430A, 430B or in any offering circular or other document430C, as applicable, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statement statements therein not misleading misleading; or arising out of (ii) any untrue statement or alleged untrue statement of a material fact contained in any the most recently filed Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicable, ) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 11.3(d) below) any such settlement is effected with the written consent of the Company; and (iii) against any and all expenses whatsoever, as incurred (including the fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement the Company and the Operating Partnership shall not apply be liable to any the extent that such loss, claim, liability, claim, expense or damage or expense arises from the sale of the Purchase Shares by Investor pursuant to the extent arising out of any resale Prospectus and is based on an untrue statement or omission or alleged untrue statement statements or omission omissions made in reliance upon on and in conformity with written information furnished Investor Content. This indemnity agreement will be in addition to any liability that the Company by and the Investor expressly for use in the Registration Statement (or any amendment thereto), including any Prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicableOperating Partnership might otherwise have.

Indemnification of Investor. The Company agrees to indemnify and hold harmless the Investor Investor, its members, partners, Affiliates (as defined below), officers, directors, employees and duly authorized agents, and each personPerson (as defined below) or entity, if any, who controls the Investor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows: Act, together with the partners, Affiliates, officers, directors, employees and duly authorized agents of such controlling Person or entity (i) collectively, the "CONTROLLING PERSONS"), from and against any and all loss, claim, damage, liability, claimreasonable attorneys' fees, damage costs or expenses and expense whatsoevercosts and expenses of investigating and defending any such claim (collectively, "DAMAGES"), joint or several, and any action in respect thereof to which the Investor, its partners, Affiliates, officers, directors, employees and duly authorized agents, and any such Controlling Person may become subject under the Securities Act or otherwise, insofar as incurred, arising out of any untrue statement of a material fact contained in the Registration Statement such Damages (or any amendment thereto), including any Prospectusproceedings in respect thereof) arise out of, or in any offering circular or other documentare based upon, as applicable, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statement therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Prospectus (Registration Statement or prospectus relating to the Registrable Securities or any amendment or supplement thereto)preliminary prospectus, or in any offering circular or other document, as applicablearises out of, or the are based upon, any omission or alleged omission therefrom of to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading; (ii) against any and all loss, liability, claim, damage and expense whatsoever, except insofar as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, same are based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 11.3(d) below) any such settlement is effected with the written consent of the Company; and (iii) against any and all expenses whatsoever, as incurred (including the fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished in writing to the Company by the Investor expressly for use in therein, and shall reimburse the Registration Statement (Investor, its partners, Affiliates, officers, directors, employees and duly authorized agents, and each such Controlling Person for any legal and other expenses reasonably incurred by the Investor, its partners, Affiliates, officers, directors, employees and duly authorized agents, or any amendment thereto)such Controlling Person in investigating or defending or preparing to defend against any such Damages or proceedings; provided, including however, that the Company shall not be liable to the Investor to the extent that any Prospectus (such Damages arise out of or any amendment are based upon an untrue statement or supplement thereto), or omission made in any offering circular preliminary prospectus if (i) the Investor failed to send or other documentdeliver a copy of the final prospectus with or prior to the delivery of written confirmation of the sale by the Investor to the Person asserting the claim from which such Damages arise, as applicableand (ii) the final prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission.

Indemnification of Investor. The Company agrees to indemnify and hold harmless the Investor and each person, if any, who controls the Investor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows: (i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement of a material fact or any alleged untrue statement of material fact contained in the Registration Statement (or any amendment thereto), including any Prospectusprospectus, or in any offering circular or other document, as applicable, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statement therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Prospectus prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicable, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 11.3(d) below) any such settlement is effected with the written consent of the Company; and (iii) against any and all expenses whatsoever, as incurred (including the fees and disbursements of counselcounsel chosen by the Investor), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by the Investor expressly for use in the Registration Statement (or any amendment thereto), including any Prospectus prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicable.

Indemnification of Investor. The Company Alloy hereby agrees to indemnify and hold harmless the Investor and each personof its officers, if anydirectors, who employees, consultants, agents, attorneys, accountants, and affiliates and each person that controls the Investor (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as followsAct) any of the foregoing persons (each an "Investor Indemnified Party") against any claim, demand, action, liability, damages, loss, cost or expense (including, without limitation, legal fees and expenses incurred by such Investor Indemnified Party in investigating or defending any such Proceeding) (a "Proceeding"), that it may reasonably incur in connection with any of the transactions contemplated hereby arising out of or based upon: (i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including any Prospectus, or in any offering circular or other document, as applicable, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statement therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Prospectus (a SEC Filing by Alloy or any amendment of its affiliates or supplement thereto), any person acting on its or in any offering circular their behalf or other document, as applicable, or the omission or alleged omission therefrom of a to state therein any material fact necessary in order to make the statements thereinstatements, in the light of the circumstances under which they were made, not misleadingmisleading by Alloy or any of its affiliates or any person acting on its or their behalf, other than any untrue or alleged untrue statement of a material fact or omission or alleged omission to state therein any material fact, in any case, resulting from any information provided by Investor or any of its affiliates in writing expressly for inclusion in such SEC Filing; (ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, representations or any investigation warranties made by Alloy herein or proceeding by any governmental agency under the Warrant being untrue or body, based upon any incorrect at the time such untrue statement representation or omission, or any such alleged untrue statement or omission; provided that (subject to Section 11.3(d) below) any such settlement is effected with the written consent of the Companywarranty was made; and (iii) against any breach or non-performance by Alloy of any of its covenants, agreements or obligations under this Agreement and all expenses whatsoever, as incurred (including the fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) aboveWarrant; provided, however, that this the foregoing indemnity agreement shall will not apply to any loss, liability, claim, damage or expense Proceeding to the extent arising that it arises out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by the Investor expressly for use in the Registration Statement (or any amendment thereto), including any Prospectus (or any amendment or supplement thereto)of, or is based upon, the gross negligence or willful misconduct of Investor in any offering circular or other document, as applicableconnection therewith.

Indemnification of Investor. The Company agrees to indemnify and hold harmless the Investor and each person, if any, who controls the Investor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows: (i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including any Prospectusprospectus, or in any offering circular or other document, as applicable, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statement therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Prospectus prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicable, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 11.3(d) below) any such settlement is effected with the written consent of the Company; and (iii) against any and all expenses whatsoever, as incurred (including the fees and disbursements of counselcounsel chosen by the Investor), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (ii ) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by the Investor expressly for use in the Registration Statement (or any amendment thereto), including any Prospectus prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicable.. 18 EXHIBIT 10.39, PAGE 18 OF 20

Indemnification of Investor. The In consideration of the Investor’s execution and delivery of this Agreement and acquiring the Shares hereunder and in addition to all of the Company’s other obligations under the Transaction Documents to which it is a party, subject to the provisions of this Section 9.1, the Company agrees to shall indemnify and hold harmless the Investor Investor, its Affiliates, each of their respective directors, officers, shareholders, members, partners, employees, representatives and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title), each personPerson, if any, who controls the Investor (within the meaning of Section 15 of the Securities Act or Section 20 20(a) of the Exchange Act Act), and the respective directors, officers, shareholders, members, partners, employees, representatives and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title) of such controlling Persons (each, an “Investor Party”), each of which shall be an express third-party beneficiary of this Article IX, from and against all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses (including all judgments, amounts paid in settlement, court costs, reasonable and documented attorneys’ fees and costs of defense and investigation) (collectively, “Damages”) that any Investor Party may suffer or incur (a) as follows: (i) against any and all lossa result of, liability, claim, damage and expense whatsoever, as incurred, relating to or arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement any Commission Document (or any amendment thereto), including any Prospectus, or in any offering circular or other document, as applicable, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statement statements therein not misleading misleading, or arising out of any untrue statement or alleged untrue statement of a material fact contained included in any Prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicableCommission Document, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; ; provided, however, that this indemnity in (iia) against shall not apply to any and all loss, liability, claim, damage or expense to the extent arising out of an untrue statement or omission, or alleged untrue statement or omission in a Commission Document, made in reliance upon and expense whatsoeverin conformity with information furnished in writing to the Company by the Investor expressly for use in connection with the preparation of the Registration Statement, as incurredProspectus or Prospectus Supplement or any such amendment thereof or supplement thereto (it being hereby acknowledged and agreed that the written information set forth on Exhibit B to the Registration Rights Agreement is the only written information furnished to the Company by or on behalf of the Investor expressly for use in any Registration Statement, Prospectus or Prospectus Supplement), (b) to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency Governmental Authority, commenced or bodythreatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 11.3(d) below) any such settlement is effected with the written consent of the Company; and , which consent shall not unreasonably be delayed, conditioned or withheld, (iiic) against any and all expenses whatsoever, as incurred (including the fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or bodyGovernmental Authority, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omissionomission (whether or not a party), to the extent that any such expense is not paid under (a) or (b) above, (d) as a result of, relating to or arising out of any breach by the Company of its representations, warranties, covenants or agreements under this Agreement, or (e) as a result of, relating to or arising out of any other action, suit, claim or proceeding against an Investor Party arising out of or otherwise in connection with the Transaction Documents (except solely to the extent in the case of this subsection (e), to the extent any Damage is determined by a court of competent jurisdiction, not subject to further appeal, to have resulted primarily and directly from the bad faith or gross negligence of such Investor Party). The Company shall reimburse any Investor Party promptly upon demand (with accompanying presentation of documentary evidence) for all legal and other costs and expenses reasonably incurred by such Investor Party in connection with (i) any action, suit, claim or proceeding, whether at law or in equity, to enforce compliance by the Company with any provision of the Transaction Documents or (ii) aboveany other any action, suit, claim or proceeding, whether at law or in equity, with respect to which it is entitled to indemnification under this Section 9.1; provided, however, provided that this indemnity agreement the Investor shall not apply to any loss, liability, claim, damage or expense promptly reimburse the Company for all such legal and other costs and expenses to the extent arising out a court of competent jurisdiction determines in a non-appealable final judgment that any untrue statement or omission or alleged untrue statement or omission made Investor Party was not entitled to such reimbursement. To the extent that the foregoing undertakings by the Company set forth in reliance upon and in conformity with written information furnished this Section 9.1 may be unenforceable for any reason, the Company shall make the maximum contribution to the Company by payment and satisfaction of each of the Damages which is permissible under applicable law, provided that in no event shall the Investor expressly for use be obligated to contribute any amount in excess of the Registration Statement (or any amendment thereto), including any Prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicablefees it actually receives pursuant to this Agreement.

Indemnification of Investor. The Subject to the conditions set forth below, in connection with any registration of securities pursuant to Section 8.4 or Section 8.5 hereof, the Company agrees to indemnify and hold harmless the (i) each Participating Investor and each director and officer of each Participating Investor, (ii) any underwriter for the Company or acting on behalf of any Participating Investor and (iii) each person, if any, who controls the any such Participating Investor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (hereinafter collectively referred to as "Company Indemnified Parties" and individually referred to as a "Company Indemnified Party") as follows: (iA) against Against any and all loss, liability, claim, damage and expense whatsoeverwhatsoever (including, as incurredbut not limited to, any and all expense whatsoever reasonably incurred in investigating, preparing or defending any litigation, commenced or threatened), arising out of or based upon any untrue or alleged untrue statement of a material fact contained in any preliminary prospectus (if used prior to the Registration Statement (or any amendment theretoeffective date of the registration statement), including any Prospectusthe registration statement or the prospectus (as from time to time amended and supplemented), or in any offering circular application or other document, as applicable, document executed by the Company or based upon written information furnished by the Company filed in any jurisdiction in order to qualify the Company's securities under the securities laws thereof; or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statement statements therein not misleading misleading; or any other violation of applicable federal or state statutory or regulatory requirements or limitations relating to action or inaction by the Company in the course of preparing, filing, or implementing such registered offering; provided, however, that the indemnity agreement contained in this Section 8.9(A) shall not apply to any loss, claim, damage, liability or action arising out of or based upon any untrue or alleged untrue statement or omission made in reliance upon and in conformity with any information furnished in writing to the Company by or on behalf of any Company Indemnified Party expressly for use in connection therewith or arising out of any untrue statement action or alleged untrue statement inaction of a material fact contained in any Prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicable, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingsuch Company Indemnified Party; (iiB) Subject to the proviso contained in Section 8.9(A) above, against any and all loss, liability, claim, damage and expense whatsoever, as incurred, whatsoever to the extent of the aggregate amount paid in settlement of any litigation, commenced or threatened, or of any investigation or proceeding by any governmental agency or body, claim whatsoever based upon any such untrue statement or omission, omission or any such alleged untrue statement or omission; provided that omission (including, but not limited to, any and all expense whatsoever reasonably incurred in investigating, preparing or defending against any such litigation or claim, but subject to the provisions of Section 11.3(d8.9(C)) below) any if such settlement is effected with the written consent of the Company; and; (iiiC) In no case shall the Company be liable under this Section 8.9 with respect to any claim made against any Company Indemnified Party unless the Company shall be notified in writing sent by overnight courier or by confirmed facsimile transmission followed by delivery of such notice by overnight air courier sent on the date of such facsimile communication, of any action commenced against such Company Indemnified Party, promptly after such Company Indemnified Party shall have been served with the summons or other legal process giving information as to the nature and all expenses whatsoeverbasis of the claim. The failure to so notify the Company, as incurred (including if prejudicial in any material respect to the fees and disbursements of counsel)Company's ability to defend such claim, reasonably incurred in investigatingshall relieve the Company from its liability to the Company Indemnified Party under this Section 8.9, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, but only to the extent that the Company was so prejudiced, but the failure to so notify the Company shall not relieve the Company from any liability which it may have otherwise than on account of this Section 8.9. The Company shall be entitled to participate at its own expense in the defense of any suit brought to enforce any such expense claim, but if the Company elects to assume the defense, such defense shall be conducted by counsel chosen by it, provided that such counsel is not paid under (i) or (ii) abovereasonably satisfactory to the Company Indemnified Parties, defendants in any suit so brought. In the event the Company elects to assume the defense of any such suit and retain such counsel, the Company Indemnified Parties, defendants in the suit, shall, after the date they are notified of such election, bear the fees and expenses of any counsel thereafter retained by them as well as any other expenses thereafter incurred in connection with the defense thereof; provided, however, that this indemnity agreement shall not apply if the Company Indemnified Parties reasonably believe that there may be available to them any loss, liability, claim, damage defense or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished counterclaim different than those available to the Company or that representation of such Company Indemnified Parties by counsel for the Investor expressly Company presents a conflict of interest for use in such counsel, then such Company Indemnified Parties shall be entitled to defend such suit with counsel of their own choosing and the Registration Statement (or any amendment thereto)Company shall bear the fees, including any Prospectus (or any amendment or supplement thereto), or in any offering circular or expenses and other document, as applicablecosts of one counsel for all Company Indemnified Parties.

Indemnification of Investor. The In consideration of the Investor’s execution and delivery of this Agreement and acquiring the Shares hereunder and in addition to all of the Company’s other obligations under the Transaction Documents to which it is a party, subject to the provisions of this Section 9.1, the Company agrees shall, to the maximum extent permitted by applicable law, indemnify and hold harmless the Investor Investor, its Affiliates and each personof its and their respective directors, officers, shareholders, members, partners, employees, representatives and agents (and any other Person with a functionally equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title), each Person, if any, who controls the Investor (within the meaning of Section 15 of the Securities Act or Section 20 20(a) of the Exchange Act Act), and the respective directors, officers, shareholders, members, partners, employees, representatives and agents (and any other Person with a functionally equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title) of such controlling Persons (each, an “Investor Party”), each of which shall be an express third-party beneficiary of this Article IX, from and against all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses (including all judgments, amounts paid in settlement, court costs, reasonable attorneys’ fees and costs of defense and investigation) (collectively, “Damages”) that any Investor Party may suffer or incur (a) as follows: (i) against any and all lossa result of, liability, claim, damage and expense whatsoever, as incurred, relating to or arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement any Commission Document (or any amendment thereto), including any Prospectus, or in any offering circular or other document, as applicable, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statement statements therein not misleading misleading, or arising out of any untrue statement or alleged untrue statement of a material fact contained included in any Prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicableCommission Document, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; ; provided, however, that this indemnity in clause (iia) against shall not apply to any and all loss, liability, claim, damage or expense to the extent arising out of an untrue statement or omission, or alleged untrue statement or omission in a Commission Document, made in reliance upon and expense whatsoeverin conformity with information furnished in writing to the Company by the Investor expressly for use in connection with the preparation of the Registration Statement, as incurredProspectus or Prospectus Supplement or any such amendment thereof or supplement thereto (it being hereby acknowledged and agreed that the written information set forth on Exhibit C to the Registration Rights Agreement is the only written information furnished to the Company by or on behalf of the Investor expressly for use in any Registration Statement, Prospectus or Prospectus Supplement), (b) to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency Governmental Authority, commenced or bodythreatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 11.3(d) below) any such settlement is effected with the written consent of the Company; and , which consent shall not unreasonably be delayed, conditioned or withheld, (iiic) against any and all expenses whatsoever, as incurred (including the fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or bodyGovernmental Authority, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omissionomission (whether or not a party), to the extent that any such expense is not paid under clause (a) or (b) above, (d) as a result of, relating to or arising out of any breach by the Company of its representations, warranties, covenants or agreements under this Agreement, or (e) as a result of, relating to or arising out of any other action, suit, claim or proceeding against an Investor Party arising out of or otherwise in connection with the Transaction Documents (except solely to the extent in the case of this clause (e), to the extent any Damage is determined by a court of competent jurisdiction, not subject to further appeal, to have resulted primarily and directly from the bad faith or gross negligence of such Investor Party). The Company shall reimburse any Investor Party promptly upon demand (with accompanying presentation of documentary evidence) for all legal and other costs and expenses reasonably incurred by such Investor Party in connection with (i) any action, suit, claim or proceeding, whether at law or in equity, to enforce compliance by the Company with any provision of the Transaction Documents or (ii) above; providedany other any action, howeversuit, that this indemnity agreement shall not apply to any lossclaim or proceeding, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by the Investor expressly for use in the Registration Statement (or any amendment thereto), including any Prospectus (or any amendment or supplement thereto), whether at law or in any offering circular or other documentequity, as applicablewith respect to which it is entitled to indemnification under this Section 9.1.

Indemnification of Investor. The Company agrees to indemnify and hold harmless the Investor and each person, if any, who controls the Investor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows: (i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including any Prospectusprospectus, or in any offering circular or other document, as applicable, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statement therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Prospectus prospectus (or any amendment or supplement 5 EXHIBIT 10.40,PAGE 5 OF 8 thereto), or in any offering circular or other document, as applicable, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 11.3(d4.1(d) below) any such settlement is effected with the written consent of the Company; and (iii) against any and all expenses whatsoever, as incurred (including the fees and disbursements of counselone counsel chosen by the Investor Agent who shall represent all Investors under the Investment Agreement), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (ii ) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by the Investor expressly for use in the Registration Statement (or any amendment thereto), including any Prospectus prospectus (or any amendment or supplement thereto), or in any offering circular or other document, as applicable.