Common use of Indemnification of Xxxxxxx Xxxxx Clause in Contracts

Indemnification of Xxxxxxx Xxxxx. Subject to the limitations in this paragraph below, the Company agrees to indemnify and hold harmless Xxxxxxx Xxxxx, its officers, directors, employees and agents, and each person, if any, who controls Xxxxxxx Xxxxx within the meaning of the Securities Act or the Exchange Act against any loss, claim, damage, liability or expense (a “Loss” or “Losses”), as incurred, to which Xxxxxxx Xxxxx or such officer, director, employee, agent or controlling person may become subject, under the Securities Act, the Exchange Act, other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, subject to Section 10(d) below), insofar as such Loss (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 amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B under the Securities Act, or the omission or alleged omission therefrom of 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 Prospectus or any free writing prospectus that the Company has used, referred to or filed, or is required to file, pursuant to Rule 433(d) of the Securities Act or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and to reimburse Xxxxxxx Xxxxx and each such officer, director, employee, agent or controlling person for any and all expenses (including reasonable costs of investigation and the fees and disbursements of counsel chosen by Xxxxxxx Xxxxx) as such expenses are reasonably incurred by Xxxxxxx Xxxxx or such officer, director, employee, agent or controlling person in connection with investigating, defending, settling, compromising or paying any such Loss or action; provided, however, that the foregoing indemnity agreement shall not apply to any Loss to the extent, but only to the extent, arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company by or on behalf of Xxxxxxx Xxxxx expressly for use in the Registration Statement, any such free writing prospectus or the Prospectus (or any amendment or supplement thereto), it being understood and agreed that the only such information furnished by Xxxxxxx Xxxxx to the Company consists of the information described in subsection (b) below. The indemnity agreement set forth in this Section 10(a) shall be in addition to any liabilities that the Company may otherwise have.

Indemnification of Xxxxxxx Xxxxx. Subject to the limitations in this paragraph below, the The Company agrees to indemnify and hold harmless Xxxxxxx Xxxxx, its officers, directors, employees and agents, Xxxxx and each person, if any, who controls Xxxxxxx Xxxxx within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act Act, as follows: (i) against any and all loss, liability, claim, damage, liability or damage and expense (a “Loss” or “Losses”)whatsoever, as incurred, to which Xxxxxxx Xxxxx or such officer, director, employee, agent or controlling person may become subject, under the Securities Act, the Exchange Act, other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, subject to Section 10(d) below), insofar as such Loss (or actions in respect thereof as contemplated below) arises arising out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, Statement (or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B under the Securities Act), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; misleading or (ii) arising out of any untrue statement or alleged untrue statement of a material fact contained in the Prospectus or any free writing prospectus that the Company has used, referred to or filed, or is required to file, pursuant to Rule 433(d) of the Securities Act or the Prospectus (or any amendment or supplement thereto), ) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and to reimburse Xxxxxxx Xxxxx and each such officer, director, employee, agent or controlling person for ; (ii) against any and all expenses loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission or any alleged untrue statement or omission, if such settlement is effected with the written consent of the Company; and (iii) against any and all expense whatsoever, as incurred (including reasonable costs of investigation and the fees and disbursements of counsel chosen by Xxxxxxx Xxxxx) as such expenses are ), reasonably incurred by Xxxxxxx Xxxxx or such officer, director, employee, agent or controlling person in connection with investigating, defendingpreparing or defending against any litigation, settlingor any investigation or proceeding by any governmental agency or body, compromising commenced or paying threatened, or any claim whatsoever based upon any such Loss untrue statement or actionomission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that the foregoing this indemnity agreement shall not apply to any Loss loss, liability, claim, damage or expense to the extent, but only to the extent, extent arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by or on behalf of Xxxxxxx Xxxxx expressly for use in the Registration Statement, Statement (or any such free writing prospectus amendment thereto) or the Prospectus (or any amendment or supplement thereto), it being understood and agreed that the only such information furnished by Xxxxxxx Xxxxx to the Company consists of the information described in subsection (b) below. The indemnity agreement set forth in this Section 10(a) shall be in addition to any liabilities that the Company may otherwise have.

Indemnification of Xxxxxxx Xxxxx. Subject to the limitations in this paragraph below, the The Company agrees to indemnify and hold harmless Xxxxxxx Xxxxx, its directors, officers, directors, employees and agents, and each person, if any, who controls Xxxxxxx Xxxxx within the meaning of the Securities Act or and the Exchange Act against any loss, claim, damage, liability or expense (a “Loss” or “Losses”)expense, as incurred, to which Xxxxxxx Xxxxx or such director, officer, director, employee, agent or controlling person may become subject, under the Securities Act, the Exchange Act, Act or other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, subject to Section 10(d) belowif such settlement is effected with the written consent of the Company), insofar as such Loss loss, claim, damage, liability or expense (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 the Registration Statement, or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B under the Securities Act, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) upon any untrue statement or alleged untrue statement of a material fact contained in any Issuer Free Writing Prospectus, the Preliminary Prospectus or any free writing prospectus that the Company has used, referred to or filed, or is required to file, pursuant to Rule 433(d) of the Securities Act or the Prospectus (or any amendment or supplement thereto), ) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and to reimburse Xxxxxxx Xxxxx and each such director, officer, director, employee, agent or and controlling person for any and all expenses (including the reasonable costs of investigation and the fees and disbursements of counsel chosen by Xxxxxxx Xxxxx) as such expenses are reasonably incurred by Xxxxxxx Xxxxx or such director, officer, director, employee, agent or controlling person in connection with investigating, defending, settling, compromising or paying any such Loss loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any Loss loss, claim, damage, liability or expense to the extent, but only to the extent, arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company by or on behalf of Xxxxxxx Xxxxx expressly for use in the Registration Statement, any such free writing prospectus Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto), it being understood and agreed that the only such information furnished by Xxxxxxx Xxxxx to the Company consists of the information described in subsection (b) below. The indemnity agreement set forth in this Section 10(a8(a) shall be in addition to any liabilities that the Company may otherwise have.

Indemnification of Xxxxxxx Xxxxx. Subject to The Company and the limitations in this paragraph below, the Company agrees Operating Partnership agree to indemnify and hold harmless Xxxxxxx Xxxxx, and its officers, directors, employees and agents, and each person, if any, who controls Xxxxxxx Xxxxx within the meaning of the Securities Act or the Exchange Act (an “Agent Affiliate”) against any loss, claim, damage, liability or expense (a “Loss” or “Losses”)expense, as incurred, to which Xxxxxxx Xxxxx or such officer, director, employee, agent or controlling person may become subject, under the Securities Act, the Exchange Act, other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, subject to Section 10(d) below), insofar as such Loss loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based upon (iA) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430A and 430B under the Securities Act, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; or (iiB) any untrue statement or alleged untrue statement of a material fact contained in the any Issuer Free Writing Prospectus or any free writing prospectus that the Company has used, referred to or filed, or is required to file, pursuant to Rule 433(d) of the Securities Act or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (C) any act or failure to act or any alleged act or failure to act by Xxxxxxx Xxxxx in connection with, or relating in any manner to, the Placement 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 (A) or (B) above; and to reimburse Xxxxxxx Xxxxx and each such officer, director, employee, agent or and controlling person for any and all expenses (including reasonable costs of investigation and the fees and disbursements of counsel chosen by Xxxxxxx Xxxxx) as such expenses are reasonably incurred by Xxxxxxx Xxxxx or such officer, director, employee, agent or controlling person in connection with investigating, defending, settling, compromising or paying any such Loss loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any Loss loss, claim, damage, liability or expense to the extent, but only to the extent, arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information relating to Xxxxxxx Xxxxx furnished to the Company by or on behalf of Xxxxxxx Xxxxx expressly for use in the Registration Statement, Prospectus or any such free writing prospectus or the Issuer Free Writing Prospectus (or any amendment or supplement thereto), it being understood and agreed that the only such information furnished by Xxxxxxx Xxxxx to the Company consists of the information described in subsection (b) below. The indemnity agreement set forth in this Section 10(a9(a)(i) shall be in addition to any liabilities that the Company and the Operating Partnership may otherwise have.

Indemnification of Xxxxxxx Xxxxx. Subject to the limitations in this paragraph below, the The Company agrees to indemnify and hold harmless Xxxxxxx Xxxxx, its officers, officers and directors, employees and agentsits affiliates, as such term is defined in Rule 405 under the 1933 Act (each, an “Affiliate”), its selling agents and each person, if any, who controls Xxxxxxx Xxxxx within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act as follows: (i) against any and all loss, liability, claim, damage, liability or damage and expense (a “Loss” or “Losses”)whatsoever, as incurred, to which Xxxxxxx Xxxxx or such officer, director, employee, agent or controlling person may become subject, under the Securities Act, the Exchange Act, other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, subject to Section 10(d) below), insofar as such Loss (or actions in respect thereof as contemplated below) arises arising out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, Statement (or any amendment thereto), including any information deemed to be a part thereof pursuant to the Rule 430B under the Securities ActInformation, if any, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; misleading or (ii) arising out of any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus, the Statutory Prospectus, any Issuer-Represented Free Writing Prospectus, the General Disclosure Package, the Prospectus or any free writing prospectus roadshow that the Company has used, referred to or filed, or is required to file, pursuant to Rule 433(d) of the Securities Act or the does not constitute an Issuer-Represented Free Writing Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and to reimburse Xxxxxxx Xxxxx and each such officer, director, employee, agent or controlling person for ; (ii) against any and all expenses loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any Governmental Entity, commenced or threatened, or of any claim whatsoever, in each case based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 6(d) below) any such settlement is effected with the written consent of the Company; and (iii) against any and all expense whatsoever, as incurred (including reasonable costs of investigation and the fees and disbursements of counsel chosen by Xxxxxxx Xxxxx) as such expenses are ), reasonably incurred by Xxxxxxx Xxxxx or such officer, director, employee, agent or controlling person in connection with investigating, defendingpreparing or defending against any litigation, settlingor any investigation or proceeding by any Governmental Entity, compromising commenced or paying threatened, or any claim whatsoever, in each case based upon any such Loss untrue statement or actionomission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that the foregoing this indemnity agreement shall not apply to any Loss loss, liability, claim, damage or expense to the extent, but only to the extent, extent arising out of or based upon any untrue statement or omission or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company by or on behalf of Xxxxxxx Xxxxx expressly for use in the Registration StatementStatement (or any amendment thereto), including the Rule 430B Information, if any, or any preliminary prospectus, the Statutory Prospectus, any such free writing prospectus Issuer-Represented Free Writing Prospectus, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto), it being understood ) in reliance upon and agreed that in conformity with the only such information furnished by Xxxxxxx Xxxxx to the Company consists of the information described in subsection (b) below. The indemnity agreement set forth in this Section 10(a) shall be in addition to any liabilities that the Company may otherwise haveUnderwriter Information.

Indemnification of Xxxxxxx Xxxxx. Subject to the limitations in this paragraph below, Each of the Company agrees and the Operating Partnership agrees, jointly and severally, to indemnify and hold harmless Xxxxxxx Xxxxx, its officers, directors, employees and agents, Xxxxx and each person, if any, who controls Xxxxxxx Xxxxx within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act 1934 Act, and any director, officer, employee or affiliate thereof as follows: (i) against any and all loss, liability, claim, damage, liability or damage and expense (a “Loss” or “Losses”)whatsoever, as incurred, to which incurred by Xxxxxxx Xxxxx or any such officerperson, director, employee, agent or controlling person may become subject, under the Securities Act, the Exchange Act, other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, subject to Section 10(d) below), insofar as such Loss (or actions in respect thereof as contemplated below) arises arising out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, Statement (or any amendment thereto, ) including any information deemed to be a part thereof pursuant to Rule the 430B under the Securities ActInformation, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; misleading or (ii) arising out of any untrue statement or alleged untrue statement of a material fact contained included in the Prospectus or any free writing Issuer Free Writing Prospectus, any preliminary prospectus that the Company has used, referred to or filed, or is required to file, pursuant to Rule 433(d) of the Securities Act or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and to reimburse Xxxxxxx Xxxxx and each such officer, director, employee, agent or controlling person for . (ii) against any and all expenses loss, liability, claim, damage and expense whatsoever, as incurred, by Xxxxxxx Xxxxx or any such person, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided any such settlement is effected with the written consent of the Company; and (iii) against any and all expense whatsoever, as incurred by Xxxxxxx Xxxxx or any such person (including reasonable costs of investigation and the fees and disbursements of counsel chosen by Xxxxxxx Xxxxx) as such expenses are ), reasonably incurred by Xxxxxxx Xxxxx or such officer, director, employee, agent or controlling person in connection with investigating, defendingpreparing or defending against any litigation, settlingor any investigation or proceeding by any governmental agency or body, compromising commenced or paying threatened, or any claim whatsoever based upon any such Loss untrue statement or actionomission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that the foregoing this indemnity agreement shall not apply to any Loss loss, liability, claim, damage or expense to the extent, but only to the extent, extent arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by or on behalf of Xxxxxxx Xxxxx expressly for use in the Registration StatementStatement (or any amendment thereto), any such free writing Issuer Free Writing Prospectus, any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), it being understood . The Company and agreed the Operating Partnership acknowledge that the only such information furnished by Xxxxxxx Xxxxx to the Company consists only of the information described in subsection (bSection 3(n) below. The indemnity agreement set forth in this Section 10(a) shall be in addition to any liabilities that the Company may otherwise haveherein.

Indemnification of Xxxxxxx Xxxxx. Subject to Each of the limitations in this paragraph belowCompany, Alliant and the Company Selling Stockholder, jointly and severally, agrees to indemnify and hold harmless Xxxxxxx Xxxxx, its officersaffiliates, directorsas such term is defined in Rule 501(b) under the 1933 Act (each, employees and agents, an “Affiliate”) and each person, if any, who controls Xxxxxxx Xxxxx within the meaning of Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act as follows: (i) against any and all loss, liability, claim, damage, liability or damage and expense (a “Loss” or “Losses”)whatsoever, as incurred, to which Xxxxxxx Xxxxx or such officer, director, employee, agent or controlling person may become subject, under the Securities Act, the Exchange Act, other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, subject to Section 10(d) below), insofar as such Loss (or actions in respect thereof as contemplated below) arises arising out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, Statement (or any amendment thereto), including any information deemed to be a part thereof pursuant to the Rule 430B under the Securities Act, 430A Information or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; misleading or (ii) arising out of any untrue statement or alleged untrue statement of a material fact contained included in the Prospectus or any free writing preliminary prospectus that the Company has used, referred to or filed, or is required to file, pursuant to Rule 433(d) of the Securities Act or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and to reimburse Xxxxxxx Xxxxx and each such officer, director, employee, agent or controlling person for ; (ii) against any and all expenses loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 6(d) below) any such settlement is effected with the written consent of the Company and Alliant; (iii) against any and all expense whatsoever, as incurred (including reasonable costs of investigation and the fees and disbursements of counsel chosen by Xxxxxxx Xxxxx) as such expenses are ), reasonably incurred by Xxxxxxx Xxxxx or such officer, director, employee, agent or controlling person in connection with investigating, defendingpreparing or defending against any litigation, settlingor any investigation or proceeding by any governmental agency or body, compromising commenced or paying threatened, or any claim whatsoever based upon any such Loss untrue statement or actionomission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that the foregoing this indemnity agreement shall not apply to any Loss loss, liability, claim, damage or expense to the extent, but only to the extent, extent arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by or on behalf of Xxxxxxx Xxxxx expressly for use in the Registration StatementStatement (or any amendment thereto), including the 430A Information or any such free writing preliminary prospectus or the Prospectus (or any amendment or supplement thereto); provided, it being understood and agreed further, that this indemnity agreement shall not inure to the only benefit of Xxxxxxx Xxxxx or any person who controls Xxxxxxx Xxxxx on account of any such information furnished loss, liability, claim, damage or expense arising out of any such defect or alleged defect in any preliminary prospectus if a copy of the Prospectus shall not have been given or sent by Xxxxxxx Xxxxx with or prior to the written confirmation of the sale involved to the extent that (i) the Prospectus would have cured such defect or alleged defect and (ii) sufficient quantities of the Prospectus were timely made available to Xxxxxxx Xxxxx; and provided, further, that notwithstanding the foregoing provisions, the aggregate amount of Alliant’s and the Selling Stockholder’s indemnity and contribution obligations under this Section 6 shall not exceed an amount equal to the net cash proceeds (before deducting expenses) received by the Selling Stockholder from the sale of Common Stock pursuant to this Agreement; and provided, further, that the indemnification obligations of Alliant and the Selling Stockholder under this Section 6(a) shall be limited to any loss, liability, claim, damage and expense described in the indemnity agreement contained in this subsection (a), as incurred, resulting from untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), including the 430A Information or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with (i) written information furnished to the Company consists of by Alliant or the Selling Stockholder expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto) or (ii) information described contained in subsection the Registration Statement (bor any amendment thereto) below. The indemnity agreement set forth in this Section 10(aor such preliminary prospectus or the Prospectus (or any amendment or supplement thereto) shall that can be in addition attributed to any liabilities that Alliant or the Company may otherwise haveSelling Stockholder.

Indemnification of Xxxxxxx Xxxxx. Subject to the limitations in this paragraph below, the Company agrees to indemnify and hold harmless Xxxxxxx Xxxxx, its officers, directors, employees and agents, and each person, if any, who controls Xxxxxxx Xxxxx within the meaning of the Securities Act or the Exchange Act against any loss, claim, damage, liability or expense (a “Loss” or “Losses”), as incurred, to which Xxxxxxx Xxxxx or such officer, director, employee, agent or controlling person may become subject, under the Securities Act, the Exchange Act, other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, subject to Section 10(d9(d) below), insofar as such Loss (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 amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B under the Securities Act, or the omission or alleged omission therefrom of 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 Prospectus or any free writing prospectus that the Company has used, referred to or filed, or is required to file, pursuant to Rule 433(d) of the Securities Act or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and to reimburse Xxxxxxx Xxxxx and each such officer, director, employee, agent or controlling person for any and all expenses (including reasonable costs of investigation and the fees and disbursements of counsel chosen by Xxxxxxx Xxxxx) as such expenses are reasonably incurred by Xxxxxxx Xxxxx or such officer, director, employee, agent or controlling person in connection with investigating, defending, settling, compromising or paying any such Loss or action; provided, however, that the foregoing indemnity agreement shall not apply to any Loss to the extent, but only to the extent, arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company by or on behalf of Xxxxxxx Xxxxx expressly for use in the Registration Statement, any such free writing prospectus or the Prospectus (or any amendment or supplement thereto), it being understood and agreed that the only such information furnished by Xxxxxxx Xxxxx to the Company consists of the information described in subsection (b) below. The indemnity agreement set forth in this Section 10(a9(a) shall be in addition to any liabilities that the Company may otherwise have.. (b) Indemnification of the Company, its