Common use of Indemnification of the Placement Agent Clause in Contracts

Indemnification of the Placement Agent. The Company agrees to indemnify, defend and hold harmless the Placement Agent, its directors and officers, and each person, if any, who controls the Placement Agent within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and the successors and assigns of all of the foregoing persons, from and against any loss, damage, claim or liability, to which, jointly or severally, the Placement Agent or any such person may become subject under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, the common law or otherwise, (including in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such loss, damage, claim or liability (or actions in respect thereof as contemplated below) arises out of or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendments thereto or the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus, any Preliminary Prospectus or the Prospectus, or in any materials or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Common Stock (“Marketing Materials”), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading; and, in the case of (i) and (ii) above, to reimburse the Placement Agent and each such controlling person for any and all reasonable expenses (including reasonable fees and disbursements of counsel) as such expenses are incurred by the Placement Agent or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, it arises out of or is based upon (x) any untrue statement or alleged untrue statement of a material fact contained in or omitted from the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Prospectus, or any such amendment or supplement, or in any Marketing Materials, in reliance upon and in conformity with information concerning the Placement Agent furnished in writing by or on behalf of the Placement Agent to the Company expressly for use therein, which information the parties hereto agree is limited to the Placement Agent Information (as defined in Section 7) or (y) the matter described under the caption “Risk Factors—We may have a contingent liability arising out of a possible violation of Section 5 of the Securities Act of 1933 in connection with the distribution of a management presentation to prospective purchasers of our common stock” in the Preliminary Prospectus and the Prospectus.

Indemnification of the Placement Agent. The Company agrees to indemnify, defend and hold harmless each of the Placement Agent, its respective directors and officers, and each person, if any, who controls the such Placement Agent within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and the successors and assigns of all of the foregoing persons, from and against any loss, damage, claim or liability, to which, jointly or severally, the such Placement Agent or any such person may become subject under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, the common law or otherwise, (including in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such loss, damage, claim or liability (or actions in respect thereof as contemplated below) arises out of or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendments amendment thereto or the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus, any Preliminary Issuer Free Writing Prospectus or the Prospectus, Prospectus (or in any materials amendment or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Common Stock (“Marketing Materials”supplement thereto), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading; and, in the case of (i) and (ii) above, to reimburse the such Placement Agent and each such controlling person for any and all reasonable expenses (including reasonable fees and disbursements of counsel) as such expenses are incurred by the such Placement Agent or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, it arises out of or is based upon (x) any untrue statement or alleged untrue statement of a material fact contained in or omitted from the Registration Statementfrom, the Base Prospectus, any Preliminary Prospectus, the Prospectus, or any such amendment or supplement, or in any Marketing Materials, in reliance upon and in conformity with information concerning the such Placement Agent furnished in writing by or on behalf of the such Placement Agent to the Company expressly for use therein, which information the parties hereto agree is limited to the Placement Agent Information (as defined in Section 7) or (yiii) the matter described under the caption “Risk Factors—We may have a contingent liability arising out any untrue statement or alleged untrue statement of a possible violation of Section 5 of the Securities Act of 1933 in connection with the distribution of a management presentation to prospective purchasers of our common stock” any material fact contained in the Preliminary Prospectus and Company’s investor presentation slides in the Prospectusform furnished by the Company under Form 8-K on October 17, 2013. Notwithstanding the foregoing, the Company will not be liable to the Placement Agent pursuant to this Section 6(a) to the extent that any such loss, damage, claim or liability is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from the Placement Agent’s willful misconduct or gross negligence.

Indemnification of the Placement Agent. The Company agrees to indemnify, defend indemnify and hold harmless the Placement Agent, its directors officers and officersemployees, and each person, if any, who controls the Placement Agent within the meaning of either Section 15 of the Securities Act or Section 20 of and the Exchange Act, and the successors and assigns of all of the foregoing persons, from and Act against any loss, claim, damage, claim liability or liabilityexpense, as incurred, to which, jointly or severally, the which such Placement Agent or any such controlling person may become subject subject, under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, the or at common law or otherwise, otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Company, which consent shall not be unreasonably withheld), insofar as such loss, claim, damage, claim liability or liability expense (or actions in respect thereof as contemplated below) arises out of or is based uponbased: (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendments thereto amendment thereto, or the omission or alleged omission to state therefrom of a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; or (ii) upon any untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus, any Preliminary Prospectus or the Prospectus, Prospectus Supplement (or in any materials amendment or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Common Stock (“Marketing Materials”supplement thereto), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) or the omission or alleged omission to state therein therefrom of a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading; and, or (iii) in whole or in part upon any inaccuracy in the case representations and warranties of the Company contained herein; or (iv) in whole or in part upon any failure of the Company to perform its obligations hereunder or under law; or (v) any act or failure to act or any alleged act or failure to act by any Placement Agent in connection with, or relating in any manner to, the Securities or the offering contemplated hereby, and which is included as part of or referred to in any loss, claim, damage, liability or action arising out of or based upon any matter covered by clause (i) and ), (ii), (iii) or (iv) above, provided that the Company shall not be liable under this clause (v) to the extent that a court of competent jurisdiction shall have determined by a final judgment that such loss, claim, damage, liability or action resulted directly from any such acts or failures to act undertaken or omitted to be taken by any Placement Agent through its bad faith or willful misconduct; and to reimburse the such Placement Agent and each such controlling person for any and all reasonable expenses (including the reasonable fees and disbursements of counselcounsel chosen by Xxxx Capital) as such expenses are reasonably incurred by the such Placement Agent or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, it arises arising out of or is based upon (x) any untrue statement or alleged untrue statement of a material fact contained in or omitted from the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Prospectus, omission or any such amendment or supplement, or in any Marketing Materials, alleged omission made in reliance upon and in conformity with written information concerning the Placement Agent furnished in writing by or on behalf of the Placement Agent to the Company by any Placement Agent expressly for use therein, which information the parties hereto agree is limited to the Placement Agent Information (as defined in Section 7) or (y) the matter described under the caption “Risk Factors—We may have a contingent liability arising out of a possible violation of Section 5 of the Securities Act of 1933 in connection with the distribution of a management presentation to prospective purchasers of our common stock” in the Preliminary Registration Statement, the Base Prospectus and or the ProspectusProspectus Supplement (or any amendment or supplement thereto).

Indemnification of the Placement Agent. The Company agrees Offerors agree, on a joint and several basis, to indemnify, defend and hold harmless the Placement Agent, each of its directors respective directors, officers, employees and officersagents, and each person, if any, who controls the Placement Agent within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and the successors and assigns of all of the foregoing persons, from and against any loss, damage, claim or liability, to which, jointly or severally, the Placement Agent or any such person may become subject under the Securities Act, the Exchange Act, or other Canadian, federal or state statutory law or regulation, the common law or otherwise, otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the CompanyTrust), insofar as such loss, damage, claim or liability (or actions in respect thereof as contemplated below) arises out of or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendments amendment thereto or the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus, any Preliminary Issuer Free Writing Prospectus or the Prospectus, Prospectus (or in any materials amendment or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Common Stock (“Marketing Materials”supplement thereto), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleadingmisleading or (iii) any untrue statement or alleged untrue statement of any material fact contained in any audio or visual materials provided to Investors by or with the approval of the Trust or based upon written information furnished by or on behalf of the Trust with its approval including, without limitation, slides, videos, films or tape recordings used in any road show or investor presentations made to investors by the Trust (whether in person or electronically) or in connection with the marketing of the Receipts; and, and in the case of (i) and (ii) above), to reimburse the Placement Agent and each such controlling person for any and all reasonable expenses (including reasonable fees and disbursements of counsel) as such expenses are incurred by the Placement Agent or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, it arises out of or is based upon (x) any untrue statement or alleged untrue statement of a material fact contained in or omitted from the Registration Statementfrom, the Base Prospectus, any Preliminary Prospectus, the Prospectus, or any such amendment or supplement, or in any Marketing Materials, in reliance upon and in conformity with information concerning the Placement Agent furnished in writing by or on behalf of the Placement Agent to the Company Trust expressly for use therein, which information the parties hereto agree is limited to the Placement Agent Information (as defined in Section 7) or (y) the matter described under the caption “Risk Factors—We may have a contingent liability arising out of a possible violation of Section 5 of the Securities Act of 1933 in connection with the distribution of a management presentation to prospective purchasers of our common stock” in the Preliminary Prospectus and the ProspectusInformation.

Indemnification of the Placement Agent. The Company agrees to indemnify, defend indemnify and hold harmless the Placement Agent, its directors officers and officersemployees, and each person, if any, who controls the Placement Agent within the meaning of either Section 15 of the Securities Act or Section 20 of and the Exchange Act, and the successors and assigns of all of the foregoing persons, from and Act against any loss, claim, damage, claim liability or liabilityexpense, as incurred, to which, jointly or severally, the which such Placement Agent or any such controlling person may become subject subject, under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, the or at common law or otherwise, otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Company, which consent shall not be unreasonably withheld), insofar as such loss, claim, damage, claim liability or liability expense (or actions in respect thereof as contemplated below) arises out of or is based uponbased: (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendments thereto amendment thereto, or the omission or alleged omission to state therefrom of a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; or (ii) upon any untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus, any Preliminary Prospectus or the Prospectus, Prospectus Supplement (or in any materials amendment or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Common Stock (“Marketing Materials”supplement thereto), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) or the omission or alleged omission to state therein therefrom of a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading; and, or (iii) in whole or in part upon any inaccuracy in the case representations and warranties of the Company contained herein; or (iv) in whole or in part upon any failure of the Company to perform its obligations hereunder or under law; or (v) any act or failure to act or any alleged act or failure to act by any Placement Agent in connection with, or relating in any manner to, the Securities or the offering contemplated hereby, and which is included as part of or referred to in any loss, claim, damage, liability or action arising out of or based upon any matter covered by clause (i) and ), (ii), (iii) or (iv) above, provided that the Company shall not be liable under this clause (v) to the extent that a court of competent jurisdiction shall have determined by a final judgment that such loss, claim, damage, liability or action resulted directly from any such acts or failures to act undertaken or omitted to be taken by any Placement Agent through its bad faith or willful misconduct; and to reimburse the such Placement Agent and each such controlling person for any and all reasonable expenses (including the reasonable fees and disbursements of counselcounsel chosen by ThinkEquity) as such expenses are reasonably incurred by the such Placement Agent or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, it arises arising out of or is based upon (x) any untrue statement or alleged untrue statement of a material fact contained in or omitted from the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Prospectus, omission or any such amendment or supplement, or in any Marketing Materials, alleged omission made in reliance upon and in conformity with written information concerning the Placement Agent furnished in writing by or on behalf of the Placement Agent to the Company by any Placement Agent expressly for use therein, which information the parties hereto agree is limited to the Placement Agent Information (as defined in Section 7) or (y) the matter described under the caption “Risk Factors—We may have a contingent liability arising out of a possible violation of Section 5 of the Securities Act of 1933 in connection with the distribution of a management presentation to prospective purchasers of our common stock” in the Preliminary Registration Statement, the Base Prospectus and or the ProspectusProspectus Supplement (or any amendment or supplement thereto).

Indemnification of the Placement Agent. The Company agrees to indemnify, defend and hold harmless the Placement Agent, its directors and officers, and each person, if any, who controls the Placement Agent within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and the successors and assigns of all of the foregoing persons, from and against any loss, damage, claim or liability, to which, jointly or severally, the Placement Agent or any such person may become subject under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, the common law or otherwise, (including in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such loss, damage, claim or liability (or actions in respect thereof as contemplated below) arises out of or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendments thereto Statement or the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus, any Preliminary Prospectus Supplement or the Time of Sale Prospectus, or in any materials or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Common Stock (“Marketing Materials”), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading; and, in the case of (i) and (ii) above, to promptly reimburse the Placement Agent and each such controlling person for any and all reasonable expenses (including reasonable fees and disbursements of counsel) as such expenses are incurred by the Placement Agent or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, it arises out of or is based upon (x) any untrue statement or alleged untrue statement of a material fact contained in or omitted from the Registration Statement, the any Base Prospectus, any Preliminary Prospectus, Prospectus Supplement or the Prospectus, or any such amendment or supplement, or in any Marketing Materials, Time of Sale Prospectus in reliance upon and in conformity with information concerning the Placement Agent furnished in writing by or on behalf of the Placement Agent to the Company expressly for use therein, which information therein or (iii) any untrue statement or alleged untrue statement made by the parties hereto agree is limited to the Placement Agent Information (as defined Company in Section 7) 3 hereof or (y) the matter described under failure by the caption “Risk Factors—We may have a contingent liability arising out of a possible violation of Section 5 of the Securities Act of 1933 in connection with the distribution of a management presentation Company to prospective purchasers of our common stock” in the Preliminary Prospectus perform when and the Prospectusas required any agreement or covenant contained herein.

Indemnification of the Placement Agent. The Company agrees to indemnify, defend and hold harmless the Placement Agent, its directors and officers, and each person, if any, who controls the such Placement Agent within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and the successors and assigns of all of the foregoing persons, from and against any loss, damage, claim or liability, to which, jointly or severally, the Placement Agent or any such person may become subject under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, the common law or otherwise, (including in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such loss, damage, claim or liability (or actions in respect thereof as contemplated below) arises out of or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendments amendment thereto or the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus, any Preliminary Issuer Free Writing Prospectus or the Prospectus, Prospectus (or in any materials amendment or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Common Stock (“Marketing Materials”supplement thereto), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading; and, in the case of (i) and (ii) above, to reimburse the Placement Agent and each such controlling person for any and all reasonable expenses (including reasonable fees and disbursements of counsel) as such expenses are incurred by the such Placement Agent or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, it arises out of or is based upon (x) any untrue statement or alleged untrue statement of a material fact contained in or omitted from the Registration Statementfrom, the Base Prospectus, any Preliminary Prospectus, the Prospectus, or any such amendment or supplement, or in any Marketing Materials, in reliance upon and in conformity with information concerning the Placement Agent furnished in writing by or on behalf of the Placement Agent to the Company expressly for use therein, which information the parties hereto agree is limited to the Placement Agent Information (as defined in Section 77 ), (iii) any untrue statement or alleged untrue statement made by the Company in Section 3 hereof or the failure by the Company to perform when and as required any agreement or covenant contained herein, or (iv) any untrue statement or alleged untrue statement of any material fact contained in any audio or visual materials (x) provided to Investors by or with the written approval of the Company or (y) the matter described under the caption “Risk Factors—We may have a contingent liability arising out of a possible violation of Section 5 based upon written information furnished by or on behalf of the Securities Act Company with its approval and provided to Investors by or with the written approval of 1933 the Company including, without limitation, slides, videos, films or tape recordings used in any road show or investor presentations made to investors by the Company (whether in person or electronically) in connection with the distribution marketing of a management presentation to prospective purchasers of our common stock” in the Preliminary Prospectus and the ProspectusShares.

Indemnification of the Placement Agent. The Company agrees to indemnify, defend and hold harmless each of the Placement Agent, its respective directors and officers, and each person, if any, who controls the such Placement Agent within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and the successors and assigns of all of the foregoing persons, from and against any loss, damage, claim or liability, to which, jointly or severally, the such Placement Agent or any such person may become subject under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, or the laws or regulations of foreign jurisdictions (including, without limitation, Israel) where Securities have been offered or sold, the common law or otherwise, otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such loss, damage, claim or liability (or actions in respect thereof as contemplated below) arises out of or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendments amendment thereto or the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Base any Preliminary Prospectus, any Preliminary Prospectus Issuer Free Writing Prospectus, any road show (as defined in Rule 433) or the Prospectus, Prospectus (or in any materials amendment or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Common Stock (“Marketing Materials”supplement thereto), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading; and, in the case of (i) and (ii) above, to reimburse the such Placement Agent and each such controlling person for any and all reasonable expenses (including reasonable fees and disbursements of counsel) as such expenses are incurred by the such Placement Agent or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, it arises out of or is based upon (x) any untrue statement or alleged untrue statement of a material fact contained in or omitted from the Registration Statementfrom, the Base Prospectus, any Preliminary Prospectus, the Prospectus, or any such amendment or supplement, or in any Marketing Materials, in reliance upon and in conformity with information concerning the such Placement Agent furnished in writing by or on behalf of the such Placement Agent to the Company expressly for use therein, which information the parties hereto agree is limited to the Placement Agent Information (as defined in Section 7) or (y) the matter described under the caption “Risk Factors—We may have a contingent liability arising out of a possible violation of Section 5 of the Securities Act of 1933 in connection with the distribution of a management presentation to prospective purchasers of our common stock” in the Preliminary Prospectus and the Prospectus).

Indemnification of the Placement Agent. The Company agrees to indemnify, defend indemnify and hold harmless the Placement Agent, its directors officers and officersemployees, and each person, if any, who controls the Placement Agent within the meaning of either Section 15 of the Securities Act or Section 20 of and the Exchange Act, and the successors and assigns of all of the foregoing persons, from and Act against any loss, claim, damage, claim liability or liabilityexpense, as incurred, to which, jointly or severally, the which such Placement Agent or any such controlling person may become subject subject, under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, the or at common law or otherwise, otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Company, which consent shall not be unreasonably withheld), insofar as such loss, claim, damage, claim liability or liability expense (or actions in respect thereof as contemplated below) arises out of or is based uponbased: (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendments thereto amendment thereto, or the omission or alleged omission to state therefrom of a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; or (ii) upon any untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus, any Preliminary Prospectus or the Prospectus, Prospectus Supplement (or in any materials amendment or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Common Stock (“Marketing Materials”supplement thereto), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) or the omission or alleged omission to state therein therefrom of a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading; and, or (iii) in whole or in part upon any inaccuracy in the case representations and warranties of the Company contained herein; or (iv) in whole or in part upon any failure of the Company to perform its obligations hereunder or under law; or (v) any act or failure to act or any alleged act or failure to act by any Placement Agent in connection with, or relating in any manner to, the Securities or the offering contemplated hereby, and which is included as part of or referred to in any loss, claim, damage, liability or action arising out of or based upon any matter covered by clause (i) and ), (ii), (iii) or (iv) above, provided that the Company shall not be liable under this clause (v) to the extent that a court of competent jurisdiction shall have determined by a final judgment that such loss, claim, damage, liability or action resulted directly from any such acts or failures to act undertaken or omitted to be taken by any Placement Agent through its bad faith or willful misconduct; and to reimburse the such Placement Agent and each such controlling person for any and all reasonable expenses (including the reasonable fees and disbursements of counselcounsel chosen by Jxxxxx Xxxxxx) as such expenses are reasonably incurred by the such Placement Agent or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, it arises arising out of or is based upon (x) any untrue statement or alleged untrue statement of a material fact contained in or omitted from the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Prospectus, omission or any such amendment or supplement, or in any Marketing Materials, alleged omission made in reliance upon and in conformity with written information concerning the Placement Agent furnished in writing by or on behalf of the Placement Agent to the Company by any Placement Agent expressly for use therein, which information the parties hereto agree is limited to the Placement Agent Information (as defined in Section 7) or (y) the matter described under the caption “Risk Factors—We may have a contingent liability arising out of a possible violation of Section 5 of the Securities Act of 1933 in connection with the distribution of a management presentation to prospective purchasers of our common stock” in the Preliminary Registration Statement, the Base Prospectus and or the ProspectusProspectus Supplement (or any amendment or supplement thereto).

Indemnification of the Placement Agent. The Company agrees to indemnify, defend indemnify and hold harmless the each Placement Agent, its directors officers and officersemployees, and each person, if any, who controls the each Placement Agent within the meaning of either Section 15 of the Securities Act or Section 20 of and the Exchange Act, and the successors and assigns of all of the foregoing persons, from and Act against any loss, claim, damage, claim liability or liabilityexpense, as incurred, to which, jointly or severally, the which such Placement Agent or any such controlling person may become subject subject, under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, the or at common law or otherwise, otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Company, which consent shall not be unreasonably withheld), insofar as such loss, claim, damage, claim liability or liability expense (or actions in respect thereof as contemplated below) arises out of or is based uponbased: (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendments thereto amendment thereto, or the omission or alleged omission to state therefrom of a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; or (ii) upon any untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus, any Preliminary Prospectus or the Prospectus, Prospectus Supplement (or in any materials amendment or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Common Stock (“Marketing Materials”supplement thereto), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) or the omission or alleged omission to state therein therefrom of a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading; and, or (iii) in whole or in part upon any inaccuracy in the case representations and warranties of the Company contained herein; or (iv) in whole or in part upon any failure of the Company to perform its obligations hereunder or under law; or (v) any act or failure to act or any alleged act or failure to act by any Placement Agent in connection with, or relating in any manner to, the Shares or the offering contemplated hereby, and which is included as part of or referred to in any loss, claim, damage, liability or action arising out of or based upon any matter covered by clause (i) and ), (ii), (iii) or (iv) above, provided that the Company shall not be liable under this clause (v) to the extent that a court of competent jurisdiction shall have determined by a final judgment that such loss, claim, damage, liability or action resulted directly from any such acts or failures to act undertaken or omitted to be taken by any Placement Agent through its bad faith or willful misconduct; and to reimburse the such Placement Agent and each such controlling person for any and all reasonable expenses (including the reasonable fees and disbursements of counselcounsel chosen by Xxxxxxxxx Xxxxxxxx) as such expenses are reasonably incurred by the such Placement Agent or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, it arises arising out of or is based upon (x) any untrue statement or alleged untrue statement of a material fact contained in or omitted from the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Prospectus, omission or any such amendment or supplement, or in any Marketing Materials, alleged omission made in reliance upon and in conformity with written information concerning the Placement Agent furnished in writing by or on behalf of the Placement Agent to the Company by any Placement Agent expressly for use therein, which information the parties hereto agree is limited to the Placement Agent Information (as defined in Section 7) or (y) the matter described under the caption “Risk Factors—We may have a contingent liability arising out of a possible violation of Section 5 of the Securities Act of 1933 in connection with the distribution of a management presentation to prospective purchasers of our common stock” in the Preliminary Registration Statement, the Base Prospectus and or the ProspectusProspectus Supplement (or any amendment or supplement thereto).

Indemnification of the Placement Agent. The Company agrees to indemnify, defend and hold harmless the Placement Agent, its directors and officers, and each person, if any, who controls the such Placement Agent within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and the successors and assigns of all of the foregoing persons, from and against any loss, damage, claim or liability, to which, jointly or severally, the Placement Agent or any such person may become subject under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, the common law or otherwise, otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such loss, damage, claim or liability (or actions in respect thereof as contemplated below) arises out of or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendments amendment thereto or the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Base any Preliminary Prospectus, any Preliminary Issuer Free Writing Prospectus or the Prospectus, Prospectus (or in any materials amendment or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Common Stock (“Marketing Materials”supplement thereto), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading; and, in the case of (i) and (ii) above, to reimburse the Placement Agent and each such controlling person for any and all reasonable expenses (including reasonable fees and disbursements of counsel) as such expenses are incurred by the Placement Agent or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, it arises out of or is based upon (x) any untrue statement or alleged untrue statement of a material fact contained in or omitted from the Registration Statementfrom, the Base Prospectus, any Preliminary Prospectus, the Prospectus, or any such amendment or supplement, or in any Marketing Materials, in reliance upon and in conformity with information concerning the Placement Agent furnished in writing by or on behalf of the Placement Agent to the Company expressly for use therein, which information the parties hereto agree is limited to the Placement Agent Information (as defined in Section 77 hereof), (iii) any untrue statement or alleged untrue statement made by the Company in Section 3 hereof or the failure by the Company to perform when and as required any agreement or covenant contained herein or (iv) any untrue statement or alleged untrue statement of any material fact contained in any audio or visual materials provided to Investors by or with the approval of the Company or based upon written information furnished by or on behalf of the Company with its approval including, without limitation, slides, videos, films or tape recordings used in any road show or investor presentations made to investors by the Company (whether in person or electronically) or (y) the matter described under the caption “Risk Factors—We may have a contingent liability arising out of a possible violation of Section 5 of the Securities Act of 1933 in connection with the distribution marketing of the Securities. Notwithstanding the foregoing, the Company will not be liable to the Placement Agent pursuant to this Section 6(a) to the extent that any such loss, damage, claim or liability is found in a management presentation final, non-appealable judgment by a court of competent jurisdiction to prospective purchasers of our common stock” in have resulted from the Preliminary Prospectus and the ProspectusPlacement Agent’s willful misconduct or gross negligence.

Indemnification of the Placement Agent. The Company agrees to indemnify, defend and hold harmless the Placement Agent, its directors and officers, and each person, if any, who controls the Placement Agent within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and the successors and assigns of all of the foregoing persons, from and against any loss, damage, claim or liability, to which, jointly or severally, the Placement Agent or any such person may become subject under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, the common law or otherwise, (including in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such loss, damage, claim or liability (or actions in respect thereof as contemplated below) arises out of or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendments thereto Statement or the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Base any Preliminary Prospectus, any Preliminary Issuer Free Writing Prospectus or the Prospectus, Prospectus (or in any materials amendment or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Common Stock (“Marketing Materials”supplement thereto), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading; and, in the case of (i) and (ii) above, to promptly reimburse the Placement Agent and each such controlling person for any and all reasonable expenses (including reasonable fees and disbursements of counsel) as such expenses are incurred by the Placement Agent or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, it arises out of or is based upon (x) any untrue statement or alleged untrue statement of a material fact contained in or omitted from the Registration Statement, the Base Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, Prospectus (or any such amendment or supplement, or in any Marketing Materials, supplement thereto) in reliance upon and in conformity with information concerning the Placement Agent furnished in writing by or on behalf of the Placement Agent to the Company expressly for use therein, which information the parties hereto agree is limited to the Placement Agent Information Information, (as defined iii) any untrue statement or alleged untrue statement made by the Company in Section 72 hereof or the failure by the Company to perform when and as required any agreement or covenant contained herein or (iv) any untrue statement or alleged untrue statement of any material fact contained in any audio or visual materials provided to Investors by or with the approval of the Company or based upon written information furnished by or on behalf of the Company including, without limitation, slides, videos, films or tape recordings used in any road show or investor presentations made to investors by the Company (whether in person or electronically) or (y) the matter described under the caption “Risk Factors—We may have a contingent liability arising out of a possible violation of Section 5 of the Securities Act of 1933 in connection with the distribution marketing of a management presentation to prospective purchasers of our common stock” in the Preliminary Prospectus and the ProspectusSecurities.

Indemnification of the Placement Agent. The Company agrees to indemnify, defend and hold harmless the Placement Agent, its directors and officers, and each person, if any, who controls the such Placement Agent within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and the successors and assigns of all of the foregoing persons, from and against any loss, damage, claim or liability, to which, jointly or severally, the Placement Agent or any such person may become subject under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, the common law or otherwise, (including in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such loss, damage, claim or liability (or actions in respect thereof as contemplated below) arises out of or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendments amendment thereto or the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Base any Preliminary Prospectus, any Preliminary Issuer Free Writing Prospectus or the Prospectus, Prospectus (or in any materials amendment or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Common Stock (“Marketing Materials”supplement thereto), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading; and, in the case of (i) and (ii) above, to reimburse the Placement Agent and each such controlling person for any and all reasonable expenses (including reasonable fees and disbursements of counsel) as such expenses are incurred by the such Placement Agent or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, it arises out of or is based upon (x) any untrue statement or alleged untrue statement of a material fact contained in or omitted from the Registration Statementfrom, the Base Prospectus, any Preliminary Prospectus, the Prospectus, or any such amendment or supplement, or in any Marketing Materials, in reliance upon and in conformity with information concerning the Placement Agent furnished in writing by or on behalf of the Placement Agent to the Company expressly for use therein, which information the parties hereto agree is limited to the Placement Agent Information (as defined in Section 7), (iii) any untrue statement or alleged untrue statement made by the Company in Section 3 hereof or the failure by the Company to perform when and as required any agreement or covenant contained herein or (iv) any untrue statement or alleged untrue statement of any material fact contained in any audio or visual materials provided to Investors by or with the approval of the Company or based upon written information furnished by or on behalf of the Company with its approval including, without limitation, slides, videos, films or tape recordings used in any road show or investor presentations made to investors by the Company (whether in person or electronically) or (y) the matter described under the caption “Risk Factors—We may have a contingent liability arising out of a possible violation of Section 5 of the Securities Act of 1933 in connection with the distribution marketing of a management presentation to prospective purchasers of our common stock” in the Preliminary Prospectus and the ProspectusSecurities.

Indemnification of the Placement Agent. The Company agrees to indemnify, defend indemnify and hold harmless the Placement Agent, its directors officers and officersemployees, and each person, if any, who controls the Placement Agent within the meaning of either Section 15 of the Securities Act or Section 20 of and the Exchange Act, and the successors and assigns of all of the foregoing persons, from and Act against any loss, claim, damage, claim liability or liabilityexpense, as incurred, to which, jointly or severally, the which such Placement Agent or any such controlling person may become subject subject, under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, the or at common law or otherwise, otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Company, which consent shall not be unreasonably withheld), insofar as such loss, claim, damage, claim liability or liability expense (or actions in respect thereof as contemplated below) arises out of or is based uponbased: (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendments thereto amendment thereto, or the omission or alleged omission to state therefrom of a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; or (ii) upon any untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus, any Preliminary Prospectus or the Prospectus, Prospectus Supplement (or in any materials amendment or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Common Stock (“Marketing Materials”supplement thereto), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) or the omission or alleged omission to state therein therefrom of a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading; and, or (iii) in whole or in part upon any inaccuracy in the case representations and warranties of the Company contained herein; or (iv) in whole or in part upon any failure of the Company to perform its obligations hereunder or under law; or (v) any act or failure to act or any alleged act or failure to act by any Placement Agent in connection with, or relating in any manner to, the Securities or the Offering contemplated hereby, and which is included as part of or referred to in any loss, claim, damage, liability or action arising out of or based upon any matter covered by clause (i) and ), (ii), (iii) or (iv) above, provided that the Company shall not be liable under this clause (v) to the extent that a court of competent jurisdiction shall have determined by a final judgment that such loss, claim, damage, liability or action resulted from any such acts or failures to act undertaken or omitted to be taken by any Placement Agent through its bad faith, willful misconduct or gross negligence; and to reimburse the such Placement Agent and each such controlling person for any and all reasonable expenses (including the reasonable fees and disbursements of counselcounsel chosen by the Placement Agent) as such expenses are reasonably incurred by the such Placement Agent or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, it arises arising out of or is based upon (x) any untrue statement or alleged untrue statement of a material fact contained in or omitted from the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Prospectus, omission or any such amendment or supplement, or in any Marketing Materials, alleged omission made in reliance upon and in conformity with written information concerning furnished to the Company by the Placement Agent furnished in writing by or on behalf of the Placement Agent to the Company expressly for use therein, which information the parties hereto agree is limited to the Placement Agent Information (as defined in Section 7) or (y) the matter described under the caption “Risk Factors—We may have a contingent liability arising out of a possible violation of Section 5 of the Securities Act of 1933 in connection with the distribution of a management presentation to prospective purchasers of our common stock” in the Preliminary Registration Statement, the Base Prospectus and or the ProspectusProspectus Supplement (or any amendment or supplement thereto).

Indemnification of the Placement Agent. The Company agrees to indemnify, defend indemnify and hold harmless the Placement Agent, its directors and affiliates, directors, officers, employees, agents and each person, if any, who controls the such Placement Agent within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and the successors and assigns of all of the foregoing persons, from and against any lossand all losses, damageclaims, claim damages and liabilities, joint or liabilityseveral (including, to whichwithout limitation, jointly reasonable fees of outside legal counsel and other expenses reasonably incurred in connection with any suit, action or severally, the Placement Agent proceeding or any claim asserted, as such person may become subject under the Securities Act, the Exchange Actfees and expenses are incurred) that arise out of, or other federal or state statutory law or regulation, the common law or otherwise, (including in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such loss, damage, claim or liability (or actions in respect thereof as contemplated below) arises out of or is are based upon: (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, Statement or the Prospectus (or any amendments thereto amendment or the omission supplement thereto) or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus, any Preliminary Prospectus or the Prospectus, or in caused by any materials or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Common Stock (“Marketing Materials”), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) or the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading; and, in the case of (i) and (ii) above, to reimburse the Placement Agent and each such controlling person for any and all reasonable expenses (including reasonable fees and disbursements of counsel) except insofar as such expenses losses, claims, damages or liabilities arise out of, or are incurred by the Placement Agent or such controlling person in connection with investigatingbased upon, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, it arises out of or is based upon (x) any untrue statement or omission or alleged untrue statement of a material fact contained in or omitted from the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Prospectus, or any such amendment or supplement, or in any Marketing Materials, omission made in reliance upon and in conformity with any information concerning furnished to the Company in writing by the Placement Agent expressly for use therein, it being understood and agreed that the only such information furnished by the Placement Agent consists of the information described as such in writing by subsection (b) below; provided, that with respect to any such untrue statement in or on behalf omission from any Preliminary Prospectus, the indemnity agreement contained in this paragraph (a) shall not inure to the benefit of the Placement Agent to the Company expressly for use thereinextent that the sale to the person asserting any such loss, which information the parties hereto agree is limited to claim, damage or liability was an initial sale by the Placement Agent Information and any such loss, claim, damage or liability of or with respect to such Placement Agent results from the fact that both (as defined in Section 7i) to the extent required by applicable law, a copy of the Prospectus was not sent or given to such person at or prior to the written confirmation of the sale of such Shares to such person and (yii) the matter described under untrue statement in or omission from such Preliminary Prospectus was corrected in the caption “Risk Factors—We may have Prospectus unless, in either case, such failure to deliver the Prospectus was a contingent liability arising out result of a possible violation non-compliance by the Company with the provisions of Section 5 of the Securities Act of 1933 in connection with the distribution of a management presentation to prospective purchasers of our common stock” in the Preliminary Prospectus and the Prospectus4 hereof.

Indemnification of the Placement Agent. The Company agrees to indemnify, defend and hold harmless the Placement Agent, its directors and officers, and each person, if any, who controls the Placement Agent within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and the successors and assigns of all of the foregoing persons, from and against any loss, damage, claim or liability, to which, jointly or severally, the Placement Agent or any such person may become subject under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, the common law or otherwise, (including in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such loss, damage, claim or liability (or actions in respect thereof as contemplated below) arises out of or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendments thereto Statement or the omission or Cardium Therapeutics, Inc. alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus, any Preliminary Prospectus Supplement or the Time of Sale Prospectus, or in any materials or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Common Stock (“Marketing Materials”), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading; and, in the case of (i) and (ii) above, to promptly reimburse the Placement Agent and each such controlling person for any and all reasonable expenses (including reasonable fees and disbursements of counsel) as such expenses are incurred by the Placement Agent or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, it arises out of or is based upon (x) any untrue statement or alleged untrue statement of a material fact contained in or omitted from the Registration Statement, the any Base Prospectus, any Preliminary Prospectus, Prospectus Supplement or the Prospectus, or any such amendment or supplement, or in any Marketing Materials, Time of Sale Prospectus in reliance upon and in conformity with information concerning the Placement Agent furnished in writing by or on behalf of the Placement Agent to the Company expressly for use therein, which information therein or (iii) any untrue statement or alleged untrue statement made by the parties hereto agree is limited to the Placement Agent Information (as defined Company in Section 7) 3 hereof or (y) the matter described under failure by the caption “Risk Factors—We may have a contingent liability arising out of a possible violation of Section 5 of the Securities Act of 1933 in connection with the distribution of a management presentation Company to prospective purchasers of our common stock” in the Preliminary Prospectus perform when and the Prospectusas required any agreement or covenant contained herein.

Indemnification of the Placement Agent. The Company agrees to indemnify, defend and hold harmless the Placement Agent, its directors and officers, and each person, if any, who controls the such Placement Agent within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and the successors and assigns of all of the foregoing persons, from and against any loss, damage, claim or liability, to which, jointly or severally, the Placement Agent or any such person may become subject under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, the common law or otherwise, (including in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such loss, damage, claim or liability (or actions in respect thereof as contemplated below) arises out of or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendments amendment thereto or the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Base any Preliminary Prospectus, any Preliminary Issuer Free Writing Prospectus or the Prospectus, Prospectus (or in any materials amendment or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Common Stock (“Marketing Materials”supplement thereto), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading; and, in the case of (i) and (ii) above, to reimburse the Placement Agent and each such controlling person for any and all reasonable expenses (including reasonable fees and disbursements of counsel) as such expenses are incurred by the such Placement Agent or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, it arises out of or is based upon (x) any untrue statement or alleged untrue statement of a material fact contained in or omitted from the Registration Statementfrom, the Base Prospectus, any Preliminary Prospectus, the Prospectus, or any such amendment or supplement, or in any Marketing Materials, in reliance upon and in conformity with information concerning the Placement Agent furnished in writing by or on behalf of the Placement Agent to the Company expressly for use therein, which information the parties hereto agree is limited to the Placement Agent Information (as defined in Section 76), (iii) any untrue statement or alleged untrue statement made by the Company in Section 2 and/or Section 3 hereof or the failure by the Company to perform when and as required any agreement or covenant contained herein or (iv) any untrue statement or alleged untrue statement of any material fact contained in any audio or visual materials provided to Investors by or with the approval of the Company or based upon written information furnished by or on behalf of the Company with its approval including, without limitation, slides, videos, films or tape recordings used in any road show or investor presentations made to investors by the Company (whether in person or electronically) or (y) the matter described under the caption “Risk Factors—We may have a contingent liability arising out of a possible violation of Section 5 of the Securities Act of 1933 in connection with the distribution marketing of a management presentation to prospective purchasers of our common stock” in the Preliminary Prospectus and the ProspectusShares.

Indemnification of the Placement Agent. The Company agrees to indemnify, defend and hold harmless the Placement Agent, its directors and officers, and each person, if any, who controls the such Placement Agent within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and the successors and assigns of all of the foregoing persons, from and against any loss, damage, claim or liability, to which, jointly or severally, the Placement Agent or any such person may become subject under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, the common law or otherwise, (including in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such loss, damage, claim or liability (or actions in respect thereof as contemplated below) arises out of or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendments amendment thereto or the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus, any Preliminary Issuer Free Writing Prospectus or the Prospectus, Prospectus (or in any materials amendment or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Common Stock (“Marketing Materials”supplement thereto), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading; and, in the case of (i) and (ii) above, to reimburse the Placement Agent and each such controlling person for any and all reasonable expenses (including reasonable fees and disbursements of counsel) as such expenses are incurred by the such Placement Agent or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, it arises out of or is based upon (x) any untrue statement or alleged untrue statement of a material fact contained in or omitted from the Registration Statementfrom, the Base Prospectus, any Preliminary Prospectus, the Prospectus, or any such amendment or supplement, or in any Marketing Materials, in reliance upon and in conformity with information concerning the Placement Agent furnished in writing by or on behalf of the Placement Agent to the Company expressly for use therein, which information the parties hereto agree is limited to the Placement Agent Information (as defined in Section 7), (iii) any untrue statement or alleged untrue statement made by the Company in Section 3 hereof or the failure by the Company to perform when and as required any agreement or covenant contained herein, or (iv) any untrue statement or alleged untrue statement of any material fact contained in any audio or visual materials (x) provided to Investors by or with the written approval of the Company or (y) the matter described under the caption “Risk Factors—We may have a contingent liability arising out of a possible violation of Section 5 based upon written information furnished by or on behalf of the Securities Act Company with its approval and provided to Investors by or with the written approval of 1933 the Company including, without limitation, slides, videos, films or tape recordings used in any road show or investor presentations made to investors by the Company (whether in person or electronically) in connection with the distribution marketing of a management presentation to prospective purchasers of our common stock” in the Preliminary Prospectus and the ProspectusShares.

Indemnification of the Placement Agent. The Company agrees to indemnify, defend indemnify and hold harmless the Placement Agent, its directors officers and officersemployees, and each person, if any, who controls the Placement Agent within the meaning of either Section 15 of the Securities Act or Section 20 of and the Exchange Act, and the successors and assigns of all of the foregoing persons, from and Act against any loss, claim, damage, claim liability or liabilityexpense, as incurred, to which, jointly or severally, the which such Placement Agent or any such controlling person may become subject subject, under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, the or at common law or otherwise, otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Company, which consent shall not be unreasonably withheld), insofar as such loss, claim, damage, claim liability or liability expense (or actions in respect thereof as contemplated below) arises out of or is based uponbased: (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendments thereto amendment thereto, or the omission or alleged omission to state therefrom of a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; or (ii) upon any untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus, any Preliminary Prospectus or the Prospectus, Prospectus Supplement (or in any materials amendment or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Common Stock (“Marketing Materials”supplement thereto), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) or the omission or alleged omission to state therein therefrom of a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading; and, or (iii) in whole or in part upon any inaccuracy in the case representations and warranties of the Company contained herein; or (iv) in whole or in part upon any failure of the Company to perform its obligations hereunder or under law; or (v) any act or failure to act or any alleged act or failure to act by any Placement Agent in connection with, or relating in any manner to, the Securities or the offering contemplated hereby, and which is included as part of or referred to in any loss, claim, damage, liability or action arising out of or based upon any matter covered by clause (i) and ), (ii), (iii) or (iv) above, provided that the Company shall not be liable under this clause (v) to the extent that a court of competent jurisdiction shall have determined by a final judgment that such loss, claim, damage, liability or action resulted from any such acts or failures to act undertaken or omitted to be taken by any Placement Agent through its bad faith, willful misconduct or gross negligence; and to reimburse the such Placement Agent and each such controlling person for any and all reasonable expenses (including the reasonable fees and disbursements of counselcounsel chosen by the Placement Agent) as such expenses are reasonably incurred by the such Placement Agent or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, it arises arising out of or is based upon (x) any untrue statement or alleged untrue statement of a material fact contained in or omitted from the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Prospectus, omission or any such amendment or supplement, or in any Marketing Materials, alleged omission made in reliance upon and in conformity with written information concerning the Placement Agent furnished in writing by or on behalf of the Placement Agent to the Company by any Placement Agent expressly for use therein, which information the parties hereto agree is limited to the Placement Agent Information (as defined in Section 7) or (y) the matter described under the caption “Risk Factors—We may have a contingent liability arising out of a possible violation of Section 5 of the Securities Act of 1933 in connection with the distribution of a management presentation to prospective purchasers of our common stock” in the Preliminary Registration Statement, the Base Prospectus and or the ProspectusProspectus Supplement (or any amendment or supplement thereto).

Indemnification of the Placement Agent. The Company agrees to indemnify, defend and hold harmless the Placement Agent, its directors and officers, and each person, if any, who controls the such Placement Agent within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and the successors and assigns of all of the foregoing persons, from and against any loss, damage, claim or liability, to which, jointly or severally, the Placement Agent or any such person may become subject under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, the common law or otherwise, (including in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such loss, damage, claim or liability (or actions in respect thereof as contemplated below) arises out of or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendments amendment thereto or the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Base any Preliminary Prospectus, any Preliminary Issuer Free Writing Prospectus or the Prospectus, Prospectus (or in any materials amendment or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Common Stock (“Marketing Materials”supplement thereto), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading; and, in the case of (i) and (ii) above, to reimburse the Placement Agent and each such controlling person for any and all reasonable expenses (including reasonable fees and disbursements of counsel) as such expenses are incurred by the such Placement Agent or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, it arises out of or is based upon (x) any untrue statement or alleged untrue statement of a material fact contained in or omitted from the Registration Statementfrom, the Base Prospectus, any Preliminary Prospectus, the Prospectus, or any such amendment or supplement, or in any Marketing Materials, in reliance upon and in conformity with information concerning the Placement Agent furnished in writing by or on behalf of the Placement Agent to the Company expressly for use therein, which information the parties hereto agree is limited to the Placement Agent Information Information, (as defined iii) any untrue statement or alleged untrue statement made by the Company in Section 73 hereof or the failure by the Company to perform when and as required any agreement or covenant contained herein or (iv) any untrue statement or alleged untrue statement of any material fact contained in any audio or visual materials provided to Investors by or with the approval of the Company or based upon written information furnished by or on behalf of the Company including, without limitation, slides, videos, films or tape recordings used in any road show or investor presentations made to investors by the Company (whether in person or electronically) or (y) the matter described under the caption “Risk Factors—We may have a contingent liability arising out of a possible violation of Section 5 of the Securities Act of 1933 in connection with the distribution marketing of a management presentation to prospective purchasers of our common stock” in the Preliminary Prospectus and the ProspectusSecurities.

Indemnification of the Placement Agent. The Company agrees to indemnify, defend and hold harmless each of the Placement Agent, its respective directors and officers, and each person, if any, who controls the such Placement Agent within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and the successors and assigns of all of the foregoing persons, from and against any loss, damage, claim or liability, to which, jointly or severally, the such Placement Agent or any such person may become subject under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, the common law or otherwise, (including in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such loss, damage, claim or liability (or actions in respect thereof as contemplated below) arises out of or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendments amendment thereto or the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus, any Preliminary Prospectus or the Prospectus, or in the Prospectus (or any materials amendment or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Common Stock (“Marketing Materials”supplement thereto), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading; and, in the case of (i) and (ii) above, to reimburse the such Placement Agent and each such controlling person for any and all reasonable expenses (including reasonable fees and disbursements of counsel) as such expenses are incurred by the such Placement Agent or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, it arises out of or is based upon (x) any untrue statement or alleged untrue statement of a material fact contained in or omitted from the Registration Statementfrom, the Base Prospectus, any Preliminary Prospectus, the Prospectus, or any such amendment or supplement, or in any Marketing Materials, in reliance upon and in conformity with information concerning the such Placement Agent furnished in writing by or on behalf of the such Placement Agent to the Company expressly for use therein, which information or (iii) any untrue statement or alleged untrue statement of any material fact contained in any audio or visual materials provided to Investors by or with the parties hereto agree is limited approval of the Company including, without limitation, slides, videos, films or tape recordings used in any road show or investor presentations made to investors by the Placement Agent Information Company (as defined whether in Section 7person or electronically) or (y) the matter described under the caption “Risk Factors—We may have a contingent liability arising out of a possible violation of Section 5 of the Securities Act of 1933 in connection with the distribution marketing of a management presentation to prospective purchasers of our common stock” in the Preliminary Prospectus and the ProspectusSecurities.

Indemnification of the Placement Agent. The Company agrees to indemnify, defend shall indemnify and hold harmless the Placement Agent, its directors and the directors, officers, employees, and agents of the Placement Agent and each person, if any, who controls the Placement Agent within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and the successors and assigns of all of the foregoing persons, Act from and against any lossand all losses, damageclaims, liabilities, expenses and damages (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 or liabilityasserted), to whichwhich they, jointly or severally, the Placement Agent or any such person of them, may become subject under the Securities Act, the Exchange Act, Act or other federal Federal or state statutory law or regulation, the at common law or otherwise, (including in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such losslosses, damageclaims, claim liabilities, expenses or liability (or actions in respect thereof as contemplated below) arises damages arise out of or is are based upon: on (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, Statement (or any amendments thereto amendment thereto) or the omission or alleged omission to state therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; misleading or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus, any Preliminary Prospectus preliminary prospectus supplement or the Prospectus, Prospectus (or in any materials amendment or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Common Stock (“Marketing Materials”), including any roadshow or investor presentations made to investors by the Company (whether in person or electronicallysupplement thereto) or the omission or alleged omission to state therein therefrom of a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading; and, in the case of (i) and (ii) above, to reimburse the Placement Agent and each such controlling person for any and all reasonable expenses (including reasonable fees and disbursements of counsel) as such expenses are incurred by the Placement Agent or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity Company shall not apply be liable to any the extent that such loss, claim, damageliability, liability expense or expense damage arises from the sale of the Shares in the public offering to the extent, but only to the extent, it arises out of or any person and is based upon (x) any on an untrue statement or omission or alleged untrue statement of a material fact contained in or omitted from the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Prospectus, or any such amendment or supplement, or in any Marketing Materials, omission made in reliance upon on and in conformity with information concerning relating to the Placement Agent furnished in writing to the Company by the Placement Agent expressly for inclusion in the Registration Statement, any preliminary prospectus or on behalf the Prospectus. If multiple claims are brought against the Placement Agent, the directors, officers and employees of the Placement Agent to the Company expressly for use thereinand any person, which information the parties hereto agree is limited to if any, who controls the Placement Agent Information (as defined in Section 7) or (y) within the matter described under the caption “Risk Factors—We may have a contingent liability arising out of a possible violation meaning of Section 5 15 of the Securities Act or Section 20 of 1933 the Exchange Act, in connection an arbitration proceeding, and indemnification is permitted under applicable law and is provided for under this Agreement with respect to at least one such claim, the distribution of Company agrees that any arbitration award shall be conclusively deemed to be based on claims as to which indemnification is permitted and provided for, except to the extent the arbitration award expressly states that the award, or any portion thereof, is based solely on a management presentation claim as to prospective purchasers of our common stock” which indemnification is not available. This indemnity agreement will be in addition to any liability that the Preliminary Prospectus and the ProspectusCompany might otherwise have.

Indemnification of the Placement Agent. The Company agrees to indemnify, defend and hold harmless each of the Placement Agent, its respective directors and officers, and each person, if any, who controls the such Placement Agent within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and the successors and assigns of all of the foregoing persons, from and against any loss, damage, claim or liability, to which, jointly or severally, the such Placement Agent or any such person may become subject under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, or the laws or regulations of foreign jurisdictions where Shares have been offered or sold, the common law or otherwise, otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such loss, damage, claim or liability (or actions in respect thereof as contemplated below) arises out of or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendments amendment thereto or the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Base any Preliminary Prospectus, any Preliminary Prospectus Issuer Free Writing Prospectus, any road show (as defined in Rule 433) or the Prospectus, Prospectus (or in any materials amendment or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Common Stock (“Marketing Materials”supplement thereto), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading; and, in the case of (i) and (ii) above, to reimburse the such Placement Agent and each such controlling person for any and all reasonable expenses (including reasonable fees and disbursements of counsel) as such expenses are incurred by the such Placement Agent or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, it arises out of or is based upon (x) any untrue statement or alleged untrue statement of a material fact contained in or omitted from the Registration Statementfrom, the Base Prospectus, any Preliminary Prospectus, the Prospectus, or any such amendment or supplement, or in any Marketing Materials, in reliance upon and in conformity with information concerning the such Placement Agent furnished in writing by or on behalf of the such Placement Agent to the Company expressly for use therein, which information the parties hereto agree is limited to the Placement Agent Information (as defined in Section 7) or (y) the matter described under the caption “Risk Factors—We may have a contingent liability arising out of a possible violation of Section 5 of the Securities Act of 1933 in connection with the distribution of a management presentation to prospective purchasers of our common stock” in the Preliminary Prospectus and the Prospectus).

Indemnification of the Placement Agent. The Company agrees to indemnify, defend indemnify and hold harmless the Placement Agent, its directors officers and officersemployees, and each person, if any, who controls the Placement Agent within the meaning of either Section 15 of the Securities Act or Section 20 of and the Exchange Act, and the successors and assigns of all of the foregoing persons, from and Act against any loss, claim, damage, claim liability or liabilityexpense, as incurred, to which, jointly or severally, the which such Placement Agent or any such controlling person may become subject subject, under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, the or at common law or otherwise, otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Company, which consent shall not be unreasonably withheld), insofar as such loss, claim, damage, claim liability or liability expense (or actions in respect thereof as contemplated below) arises out of or is based uponbased: (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendments thereto amendment thereto, or the omission or alleged omission to state therefrom of a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; or (ii) upon any untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus, any Preliminary Prospectus or the Prospectus, Prospectus Supplement (or in any materials amendment or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Common Stock (“Marketing Materials”supplement thereto), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) or the omission or alleged omission to state therein therefrom of a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading; and, or (iii) in whole or in part upon any inaccuracy in the case representations and warranties of the Company contained herein; or (iv) in whole or in part upon any failure of the Company to perform its obligations hereunder or under law; or (v) any act or failure to act or any alleged act or failure to act by any Placement Agent in connection with, or relating in any manner to, the Shares or the offering contemplated hereby, and which is included as part of or referred to in any loss, claim, damage, liability or action arising out of or based upon any matter covered by clause (i) and ), (ii), (iii) or (iv) above, provided that the Company shall not be liable under this clause (v) to the extent that a court of competent jurisdiction shall have determined by a final judgment that such loss, claim, damage, liability or action resulted directly from any such acts or failures to act undertaken or omitted to be taken by any Placement Agent through its bad faith or willful misconduct; and to reimburse the such Placement Agent and each such controlling person for any and all reasonable expenses (including the reasonable fees and disbursements of counselcounsel chosen by Xxxxxxxxx Xxxxxxxx) as such expenses are reasonably incurred by the such Placement Agent or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, it arises arising out of or is based upon (x) any untrue statement or alleged untrue statement of a material fact contained in or omitted from the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Prospectus, omission or any such amendment or supplement, or in any Marketing Materials, alleged omission made in reliance upon and in conformity with written information concerning the Placement Agent furnished in writing by or on behalf of the Placement Agent to the Company by any Placement Agent expressly for use therein, which information the parties hereto agree is limited to the Placement Agent Information (as defined in Section 7) or (y) the matter described under the caption “Risk Factors—We may have a contingent liability arising out of a possible violation of Section 5 of the Securities Act of 1933 in connection with the distribution of a management presentation to prospective purchasers of our common stock” in the Preliminary Registration Statement, the Base Prospectus and or the ProspectusProspectus Supplement (or any amendment or supplement thereto).

Indemnification of the Placement Agent. The Company agrees to indemnify, defend shall indemnify and hold harmless the Placement Agent, its directors and the directors, officers, employees, counsel and agents of the Placement Agent and each person, if any, who controls the Placement Agent within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and the successors and assigns of all of the foregoing persons, Act from and against any lossand all losses, damageclaims, liabilities, expenses and damages (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 or liabilityasserted), to whichwhich they, jointly or severally, the Placement Agent or any such person of them, may become subject under the Securities Act, the Exchange Act, Act or other federal Federal or state statutory law or regulation, the at common law or otherwise, (including in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such losslosses, damageclaims, claim liabilities, expenses or liability (or actions in respect thereof as contemplated below) arises damages arise out of or is are based upon: on (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, Statement (or any amendments thereto amendment thereto), including any information deemed to be a part thereof pursuant to Rules 430A, 430B or 430C, as applicable, including all documents incorporated therein by reference, or the omission or alleged omission to state therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; misleading or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus, any Preliminary Issuer Free Writing Prospectus or the Prospectus, Prospectus (or in any materials amendment or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Common Stock (“Marketing Materials”), including any roadshow or investor presentations made to investors by the Company (whether in person or electronicallysupplement thereto) or the omission or alleged omission to state therein therefrom of a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading; and, in the case of (i) and (ii) above, to reimburse the Placement Agent and each such controlling person for any and all reasonable expenses (including reasonable fees and disbursements of counsel) as such expenses are incurred by the Placement Agent or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity Company shall not apply be liable to any the extent that such loss, claim, damageliability, liability expense or expense damage arises from the sale of the Units to the extentany Investor, but only to the extent, it arises out of or is based upon (x) any on an untrue statement or omission or alleged untrue statement of a material fact contained in or omitted from the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Prospectus, or any such amendment or supplement, or in any Marketing Materials, omission made in reliance upon on and in conformity with information concerning relating to the Placement Agent furnished in writing to the Company by or on behalf of the Placement Agent expressly for inclusion in the Registration Statement, any Issuer Free Writing Prospectus or the Prospectus and is found in a final judgment (not subject to appeal) by a court of law to have resulted primarily and directly from the Placement Agent’s willful misconduct or gross negligence in performing the services described herein. This indemnity agreement will be in addition to any liability that the Company expressly for use therein, which information the parties hereto agree is limited might otherwise have to the Placement Agent Information (as defined in Section 7) any indemnified party under this engagement letter or (y) the matter described under the caption “Risk Factors—We may have a contingent liability arising out of a possible violation of Section 5 of the Securities Act of 1933 in connection with the distribution of a management presentation to prospective purchasers of our common stock” in the Preliminary Prospectus and the Prospectusotherwise.

Indemnification of the Placement Agent. The Company agrees to indemnify, defend indemnify and hold harmless the Placement Agent, its directors affiliates, directors, officers and officersemployees, and agents who have or who are alleged to have participated in the distribution of the Securities as Placement Agent and each person, if any, person who controls the Placement Agent within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and the successors and assigns of all of the foregoing persons, from and Act against any lossand all losses, damageclaims, claim damages or liabilityliabilities, joint or several, to which, jointly or severally, the Placement Agent which they or any such person of them may become subject under the Securities Act, the Exchange Act, Act or other federal Federal or state statutory law or regulation, the at common law or otherwise, (including in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such losslosses, damageclaims, claim damages or liability liabilities (or actions in respect thereof as contemplated belowthereof) arises arise out of or is are based upon: (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Registration StatementStatement as originally filed or in any amendment thereof, or any amendments thereto or the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus, any Preliminary Prospectus or Prospectus, the Final Prospectus, any Issuer Free Writing Prospectus, or in any materials amendment thereof or information provided to investors by, supplement thereto or with the approval of, the Company in connection with the marketing arise out of the offering of the Common Stock (“Marketing Materials”), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, therein not misleading; and, in the case of (i) and (ii) above, agrees to reimburse the Placement Agent and each such controlling person indemnified party, as incurred, for any and all reasonable legal or other expenses (including reasonable fees and disbursements of counsel) as such expenses are reasonably incurred by the Placement Agent or such controlling person them in connection with investigating, defending, settling, compromising investigating or paying defending any such loss, claim, damage, liability, expense liability or action; provided, however, that the foregoing indemnity shall Company will not apply be liable in any such case to the extent that any such loss, claim, damage, damage or liability or expense to the extent, but only to the extent, it arises out of or is based upon (x) any untrue statement or omission or alleged untrue statement of a material fact contained in or omitted from the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Prospectus, or any such amendment or supplement, or in any Marketing Materials, omission made in reliance upon and in conformity with information concerning the Placement Agent furnished Information. This indemnity agreement will be in writing by or on behalf of the Placement Agent addition to any liability which the Company expressly for use therein, which information the parties hereto agree is limited to the Placement Agent Information (as defined in Section 7) or (y) the matter described under the caption “Risk Factors—We may have a contingent liability arising out of a possible violation of Section 5 of the Securities Act of 1933 in connection with the distribution of a management presentation to prospective purchasers of our common stock” in the Preliminary Prospectus and the Prospectusotherwise have.

Indemnification of the Placement Agent. The Company agrees to indemnify, defend and hold harmless the Placement Agent, its directors and officers, and each person, if any, any person who controls the Placement Agent within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act, and the successors and assigns of all of the foregoing persons, persons from and against any loss, damage, expense, liability or claim or liability, to (including the reasonable cost of investigation) which, jointly or severally, the Placement Agent or any such person may become subject incur under the Securities 1933 Act, the Exchange 1934 Act, or other federal or state statutory law or regulation, the common law or otherwise, (including in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such loss, damage, expense, liability or claim or liability (or actions in respect thereof as contemplated below) arises out of or is based upon: (i) upon any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Offering Memorandum or the Registration StatementFinal Offering Memorandum (or any amendment or supplement thereto), or arises out of or is based upon any amendments thereto or the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus, any Preliminary Prospectus Offering Memorandum or the Prospectus, Final Offering Memorandum (or in any materials amendment or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Common Stock (“Marketing Materials”), including any roadshow or investor presentations made to investors by the Company (whether in person or electronicallysupplement thereto) or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, therein not misleading; and, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such information required to be stated in any such Preliminary Offering Memorandum or the case of Final Offering Memorandum (ior any amendment or supplement thereto) and or necessary to make such information not misleading. If any action, suit or proceeding (iitogether, a "Proceeding") above, to reimburse is brought against the Placement Agent and each or any such controlling person for any and all reasonable expenses (including reasonable fees and disbursements in respect of counsel) as such expenses are incurred by which indemnity may be sought against the Company pursuant to the foregoing paragraph, the Placement Agent or such controlling person shall promptly notify the Company in connection with investigatingwriting of the institution of such Proceeding and the Company shall assume the defense of such Proceeding, defending, settling, compromising or paying any including the employment of counsel reasonably satisfactory to such loss, claim, damage, liability, expense or actionindemnified party and payment of all fees and expenses; provided, however, that the foregoing indemnity omission to so notify the Company shall not apply to relieve the Company from any loss, claim, damage, liability or expense which the Company may have to the extent, but only to the extent, it arises out of or is based upon (x) any untrue statement or alleged untrue statement of a material fact contained in or omitted from the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Prospectus, Placement Agent or any such amendment person or supplement, otherwise. The Placement Agent or such person shall have the right to employ its or their own counsel in any Marketing Materialssuch case, in reliance upon but the fees and in conformity with information concerning expenses of such counsel shall be at the expense of the Placement Agent furnished or of such person unless the employment of such counsel shall have been authorized in writing by the Company in connection with the defense of such Proceeding or the Company shall not have, within a reasonable period of time in light of the circumstances, employed counsel to have charge of the defense of such Proceeding or such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from, additional to or in conflict with those available to the Company (in which case the Company shall not have the right to direct the defense of such Proceeding on behalf of the indemnified party or parties), in any of which events such fees and expenses shall be borne by the Company and paid as incurred (it being understood, however, that the Company shall not be liable for the expenses of more than one separate counsel (in addition to any local counsel) in any one Proceeding or series of related Proceedings in the same jurisdiction representing the indemnified parties who are parties to such Proceeding). The Company shall not be liable for any settlement of any Proceeding effected without its written consent but if settled with the written consent of the Company, the Company agrees to indemnify and hold harmless the Placement Agent and any such person from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then the indemnifying party 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 60 business days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement and (iii) such indemnified party shall have given the indemnifying party at least 30 days' prior notice of its intention to settle. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened Proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of the Placement Agent to the Company expressly for use therein, which information the parties hereto agree is limited to the Placement Agent Information (as defined in Section 7) or (y) the matter described under the caption “Risk Factors—We may have a contingent liability arising out of a possible violation of Section 5 of the Securities Act of 1933 in connection with the distribution of a management presentation to prospective purchasers of our common stock” in the Preliminary Prospectus and the Prospectussuch indemnified party.

Indemnification of the Placement Agent. The Company agrees to indemnify, defend indemnify and hold harmless the Placement Agent, its directors officers and officersemployees, and each person, if any, who controls the Placement Agent within the meaning of either Section 15 of the Securities Act or Section 20 of and the Exchange Act, and the successors and assigns of all of the foregoing persons, from and Act against any loss, claim, damage, claim liability or liabilityexpense, as incurred, to which, jointly or severally, the which such Placement Agent or any such controlling person may become subject subject, under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, the or at common law or otherwise, otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Company, which consent shall not be unreasonably withheld), insofar as such loss, claim, damage, claim liability or liability expense (or actions in respect thereof as contemplated below) arises out of or is based uponbased: (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendments thereto amendment thereto, or the omission or alleged omission to state therefrom of a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; or (ii) upon any untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus, any Preliminary Prospectus or the Prospectus, Prospectus Supplement (or in any materials amendment or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Common Stock (“Marketing Materials”supplement thereto), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) or the omission or alleged omission to state therein therefrom of a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading; and, or (iii) in whole or in part upon any inaccuracy in the case representations and warranties of the Company contained herein; or (iv) in whole or in part upon any failure of the Company to perform its obligations hereunder or under law; or (v) any act or failure to act or any alleged act or failure to act by the Placement Agent in connection with, or relating in any manner to, the Securities or the Offering contemplated hereby, and which is included as part of or referred to in any loss, claim, damage, liability or action arising out of or based upon any matter covered by clause (i) and ), (ii), (iii) or (iv) above, provided that the Company shall not be liable under this clause (v) to the extent that a court of competent jurisdiction shall have determined by a final judgment that such loss, claim, damage, liability or action resulted directly from any such acts or failures to act undertaken or omitted to be taken by such Placement Agent through its bad faith or willful misconduct; and to reimburse the such Placement Agent and each such controlling person for any and all reasonable expenses (including the reasonable fees and disbursements of counselone counsel chosen by the Placement Agent) as such expenses are reasonably incurred by the such Placement Agent or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, it arises arising out of or is based upon (x) any untrue statement or alleged untrue statement of a material fact contained in or omitted from the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Prospectus, omission or any such amendment or supplement, or in any Marketing Materials, alleged omission made in reliance upon and in conformity with written information concerning the Placement Agent furnished in writing by or on behalf of the Placement Agent to the Company by such Placement Agent expressly for use therein, which information the parties hereto agree is limited to the Placement Agent Information (as defined in Section 7) or (y) the matter described under the caption “Risk Factors—We may have a contingent liability arising out of a possible violation of Section 5 of the Securities Act of 1933 in connection with the distribution of a management presentation to prospective purchasers of our common stock” in the Preliminary Registration Statement, the Base Prospectus and or the ProspectusProspectus Supplement (or any amendment or supplement thereto).