Common use of Indemnity by the Company and the Underwriter Clause in Contracts

Indemnity by the Company and the Underwriter. (a) The Company agrees to indemnify, defend and hold harmless the Underwriter, each person that controls the Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the Underwriter's agents, employees, officers and directors and the agents, employees, officers and directors of any such controlling person (collectively, the "Underwriter indemnified parties") from and against any and all losses, claims, damages, judgments, xxxxxxxxxxx and expenses (including the fees and expenses of counsel and other expenses in connection with investigating, defending or settling any such action or claim) which, jointly or severally, any Underwriter indemnified party may incur as they are incurred (and regardless of whether such Underwriter indemnified party is a party to the litigation, if any) arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the registration statement relating to the Securities or the Prospectus or any Preliminary Prospectus, or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages, judgments, liabilities or expenses arise out of, or are based upon, any such untrue statement or omission or alleged untrue statement or omission based upon and in conformity with information with respect to the Underwriter furnished in writing by the Underwriter to the Company expressly for use therein with reference to the Underwriter. This indemnity agreement will be in addition to any liability the Company otherwise may have. (b) If any action or proceeding (including any governmental or regulatory investigation or proceeding) shall be brought or asserted against any Underwriter indemnified party, with respect to which indemnity may be sought against the Company pursuant to this

Indemnity by the Company and the Underwriter. (a) The Company agrees to indemnify, defend indemnify and hold harmless the Underwriteryou, each person that controls the Underwriter you within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the Underwriter's your agents, employees, officers and directors and the agents, employees, officers and directors of any such controlling person (collectively, the "Underwriter indemnified partiesWARBURG INDEMNIFIED PARTIES") from and against any and all losses, claims, damages, judgments, xxxxxxxxxxx liabilities and expenses (including the reasonable fees and expenses of counsel and other expenses in connection with investigating, defending or settling any such action or claim) which, jointly or severally, any Underwriter indemnified party may incur as they are incurred (and regardless of whether such Underwriter the Warburg indemnified party is a party to the litigation, if any) arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the registration statement relating to the Securities Registration Statement (as amended) or the Final Prospectus (as amended or any Preliminary Prospectus, supplemented) or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages, judgments, liabilities or expenses arise out of, or are based upon, any such untrue statement or omission or alleged untrue statement or omission based upon and in conformity with information with respect to the Underwriter concerning you and furnished in writing by the Underwriter you to the Company expressly for use therein with reference to the Underwriter. This indemnity agreement will be in addition to any liability the Company otherwise may havetherein. (b) If any action or proceeding (including any governmental or regulatory investigation or proceeding) shall be brought or asserted against any Underwriter indemnified party, with respect to which indemnity may be sought against the Company pursuant to thisany

Indemnity by the Company and the Underwriter. (a) The Company agrees to indemnify, defend shall indemnify and hold harmless the Underwriter, its partners, members, directors, officers, affiliates and each person that person, if any, who controls the Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and the Underwriter's agents, employees, officers and directors and the agents, employees, officers and directors of any such controlling person (collectively, the "Underwriter indemnified parties") from and against any and all losses, liabilities, claims, damages, judgments, xxxxxxxxxxx damages and expenses whatsoever as incurred (including the but not limited to attorneys' fees and any and all expenses of counsel and other expenses whatsoever incurred in connection with investigating, preparing or defending against any litigation, commenced or settling threatened, or any claim whatsoever, and any and all amounts paid in settlement of any claim or litigation), joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages or expenses (or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, as originally filed or in any amendment thereof, or any Prospectus, or in any supplement thereto or amendment thereof, or in the Pricing Disclosure Package, or in any "issuer information" (as defined in Rule 433(h)(2) under the Securities Act) filed or required to be filed pursuant to Rule 433(d) under the Securities Act, or (ii) the omission or alleged omission to state in the Registration Statement, as originally filed or in any amendment thereof, or any Prospectus, or in any supplement thereto or amendment thereof, or in the Pricing Disclosure Package, or in any "issuer information" (as defined in Rule 433(h)(2) under the Securities Act) filed or required to be filed pursuant to Rule 433(d) under the Securities Act, a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the Company will not be liable in any such action or claim) which, jointly or severally, any Underwriter indemnified party may incur as they are incurred (and regardless of whether such Underwriter indemnified party is a party case to the litigationextent, but only to the extent, that any such loss, liability, claim, damage or expense arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, as originally filed or in any amendment thereof, or any Prospectus, or in any supplement thereto or amendment thereof, or in the Pricing Disclosure Package, in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Underwriter expressly for use therein. This indemnity agreement will be in addition to any liability which the Company may otherwise have, including but not limited to other liability under this Agreement. (b) The Underwriter shall indemnify and hold harmless the Company, each of the directors of the Company, each of the officers of the Company who shall have signed the Registration Statement, and each other person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, against any losses, liabilities, claims, damages and expenses whatsoever as incurred (including but not limited to attorneys' fees and any and all expenses whatsoever incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever, and any and all amounts paid in settlement of any claim or litigation), joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages or expenses (or actions in respect thereof) arising arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the registration statement relating to the Securities Registration Statement, as originally filed or the Prospectus in any amendment thereof, or any Preliminary Prospectus, or arising in any amendment thereof or supplement thereto, or in the Pricing Disclosure Package, or arise out of or are based upon any the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such lossesin each case to the extent, claimsbut only to the extent, damages, judgments, liabilities or expenses arise out of, or are based upon, that any such loss, liability, claim, damage or expense arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged untrue statement or omission based made therein in reliance upon and in conformity with information with respect furnished in writing to the Company by or on behalf of the Underwriter specifically for use therein; provided, however, that in no case shall the Underwriter be liable or responsible for any amount in excess of the underwriting discount applicable to the Shares to be purchased by the Underwriter hereunder. The statements relating to the Underwriter under the caption "Underwriting" in the Prospectus (to the extent such statements relate to the Underwriter) constitute the only information furnished in writing by or on behalf of the Underwriter to the Company expressly for use therein with reference to the Underwriterpurposes of Section 3(b) and this Section 8. This indemnity agreement will be in addition to any liability which the Company Underwriter may otherwise may have, including but not limited to other liability under this Agreement. (c) Promptly after receipt by an indemnified party under subsection (a) or (b) If above of notice of any claims or the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify each party against whom indemnification is to be sought in writing of the claim or the commencement thereof (but the failure so to notify an indemnifying party shall not relieve the indemnifying party from any liability which it may have under this Section 8 except to the extent such failure materially prejudices the indemnifying party and the indemnifying party was not otherwise aware of such claim). In case any such claim or action is brought against any indemnified party, and it notifies an indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate, at its own expense in the defense of such action, and to the extent it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel satisfactory to such indemnified party; provided, however, that counsel to the indemnifying party shall not (except with the written consent of the indemnified party) also be counsel to the indemnified party. Notwithstanding the foregoing, the indemnified party or parties shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such indemnified party or parties unless (i) the employment of such counsel shall have been authorized in writing by one of the indemnifying parties in connection with the defense of such action, (ii) the indemnifying parties shall not have employed counsel to have charge of the defense of such action within a reasonable time after notice of commencement of the action, (iii) the indemnifying party does not diligently defend the action after assumption of the defense, or (iv) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to one or all of the indemnifying parties (in which case the indemnifying parties shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events such fees and expenses shall be borne by the indemnifying parties. No indemnifying party shall, without the prior written consent of the indemnified parties, effect any settlement or compromise of, or consent to the entry of judgment with respect to, any pending or threatened claim, investigation, action or proceeding in respect of which indemnity or contribution may be or could have been sought by an indemnified party under this Section 8 or Section 9 hereof (including whether or not the indemnified party is an actual or potential party thereto), unless (x) such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such claim, investigation, action or proceeding and (ii) does not include a statement as to or an admission of fault, culpability or any governmental failure to act, by or regulatory investigation or proceeding) shall be brought or asserted against any Underwriter on behalf of the indemnified party, and (y) the indemnifying party confirms in writing its indemnification obligations hereunder with respect to which indemnity may be sought against the Company pursuant to thissuch settlement, compromise or judgment.

Indemnity by the Company and the Underwriter. (a) The Company agrees to indemnify, defend indemnify and hold harmless the Underwriter, its affiliates, as such term is defined in Rule 501(b) under the 1933 Act (each, an “Affiliate”), its selling agents and each person that person, if any, who controls the Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the Exchange Act, and the Underwriter's agents, employees, officers and directors and the agents, employees, officers and directors of any such controlling person 1934 Act as follows: (collectively, the "Underwriter indemnified parties"i) from and against any and all lossesloss, claimsliability, damagesclaim, judgmentsdamage and expense whatsoever, xxxxxxxxxxx and expenses (including the fees and expenses of counsel and other expenses in connection with investigatingas incurred, defending or settling any such action or claim) which, jointly or severally, any Underwriter indemnified party may incur as they are incurred (and regardless of whether such Underwriter indemnified party is a party to the litigation, if any) arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the registration statement relating to Registration Statement (or any amendment thereto), including the Securities Rule 430B Information, or the Prospectus or any Preliminary Prospectus, or arising out of or based upon any omission or alleged omission to state therein therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, except insofar as such losses, claims, damages, judgments, liabilities or expenses arise out ofthe General Disclosure Package, or are the Prospectus (or any amendment or supplement thereto) or in any “road show” (as defined in Rule 433 under the Securities Act) not constituting an “Issuer Free Writing Prospectus,” or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in any Issuer Limited Use Free Writing Prospectus 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; (iii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement (including without limitation, by means of a consent to judgment) of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon, upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 7(e) below) any such settlement is effected with the written consent of the Company and the Selling Stockholder; (iv) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Underwriter), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission based made in reliance upon and in conformity with information with respect to the Underwriter furnished in writing by the Underwriter to the Company expressly for use therein with reference to the Underwriter. This indemnity agreement will be in addition to any liability the Company otherwise may haveContent (as defined below). (b) If any action or proceeding (including any governmental or regulatory investigation or proceeding) shall be brought or asserted against any Underwriter indemnified party, with respect to which indemnity may be sought against the Company pursuant to this

Indemnity by the Company and the Underwriter. (a) The Company agrees to indemnify, defend indemnify and hold harmless the Underwriteryou, each person that controls the Underwriter you within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the Underwriter's your agents, employees, officers and directors and the agents, employees, officers and directors of any such controlling person (collectively, the "Underwriter indemnified partiesUNDERWRITER INDEMNIFIED PARTIES") from and against any and all losses, claims, damages, judgments, xxxxxxxxxxx liabilities and expenses (including the reasonable fees and expenses of counsel and other expenses in connection with investigating, defending or settling any such action or claim) which, jointly or severally, any Underwriter indemnified party may incur as they are incurred (and regardless of whether such the Underwriter indemnified party is a party to the litigation, if any) arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the registration statement relating to the Securities Registration Statement (as amended) or the Final Prospectus (as amended or any Preliminary Prospectus, supplemented) or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages, judgments, liabilities or expenses arise out of, or are based upon, any such untrue statement or omission or alleged untrue statement or omission based upon and in conformity with information with respect to the Underwriter concerning you and furnished in writing by the Underwriter you to the Company expressly for use therein with reference to the Underwriter. This indemnity agreement will be in addition to any liability the Company otherwise may havetherein. (b) If any action or proceeding (including any governmental or regulatory investigation or proceeding) shall be brought or asserted against any Underwriter indemnified party, with respect to which indemnity may be sought against the Company pursuant to thisthis Section 8, such Underwriter indemnified party shall promptly notify the Company in writing, and the Company shall

Indemnity by the Company and the Underwriter. (a) The Company agrees to indemnify, defend indemnify and hold harmless the Underwriteryou, each person that controls the Underwriter you within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the Underwriter's your agents, employees, officers and directors and the agents, employees, officers and directors of any such controlling person (collectively, the "Underwriter Dillxx, Xxad indemnified parties") from and against any and all losses, claims, damages, judgments, xxxxxxxxxxx liabilities and expenses (including the reasonable fees and expenses of counsel and other expenses in connection with investigating, defending or settling any such action or claim) which, jointly or severally, any Underwriter indemnified party may incur as they are incurred (and regardless of whether such Underwriter the Dillxx, Xxad indemnified party is a party to the litigation, if any) arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the registration statement relating to the Securities Registration Statement (as amended) or the Final Prospectus (as amended or any supplemented) or the Preliminary Final Prospectus, or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except (A) insofar as such losses, claims, damages, judgments, liabilities or expenses arise out of, or are based upon, any such untrue statement or omission or alleged untrue statement or omission based upon and in conformity with information with respect to the Underwriter concerning you and furnished in writing by the Underwriter you to the Company expressly for use therein with reference or (B) to the Underwriter. This indemnity agreement will be extent any such statement or omission in addition to any liability a Preliminary Final Prospectus is corrected in the Company otherwise may haveFinal Prospectus. (b) If any action or proceeding (including any governmental or regulatory investigation or proceeding) shall be brought or asserted against any Underwriter Dillxx, Xxad indemnified party, with respect to which indemnity may be sought against the Company pursuant to thisthis Section 8, such Dillxx, Xxad indemnified party shall promptly notify the Company in writing, and the Company shall assume the defense thereof, including the employment of counsel satisfactory to the Dillxx, Xxad indemnified party and payment of all fees and expenses. A Dillxx, Xxad indemnified party shall have 18 20 the right to employ separate counsel in any such action or proceeding and to assume the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Dillxx, Xxad indemnified party unless (i) the employment of such counsel has been specifically authorized in writing by the Company, (ii) the Company has failed promptly to assume the defense and employ counsel satisfactory to the Dillxx, Xxad indemnified party, or (iii) the named parties to any such action or proceeding (including any impleaded parties) include both a Dillxx, Xxad indemnified party and a Company indemnified party and such Dillxx, Xxad indemnified party shall have reasonably concluded that there may be one or more legal defenses available to it that are different from or additional to those available to the Company (in which case the Company shall not have the right to assume the defense of such action on behalf of such Dillxx, Xxad indemnified party), in any of which events, such fees and expenses shall be borne by the Company and reimbursed as they are incurred. It is understood, however, that the Company shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all such Dillxx, Xxad indemnified parties, which firm shall be designated in writing by you, and that all such fees and expenses shall be reimbursed as they are incurred. The Company shall not be liable for any settlement of any such action effected without the written consent of the Company (which consent shall not be unreasonably withheld or delayed), but if settled with the written consent of the Company, or if there is a final judgment with respect thereto, the Company agrees to indemnify and hold harmless each Dillxx, Xxad indemnified party from and against any loss or liability by reason of such settlement or judgment. (c) You agree to indemnify and hold harmless the Company, its directors, its officers, its agents, and any person that controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (collectively, the "Company indemnified parties") to the same extent as the foregoing indemnity from the Company to the Dillxx, Xxad indemnified parties, but only with respect to information concerning you and furnished in writing by you to the Company expressly for use in the Registration Statement, the Final Prospectus or the Preliminary Final Prospectus. In case any action shall be brought against any Company indemnified party based on the Registration Statement, the Final Prospectus or the Preliminary Final Prospectus and in respect of which indemnity may be sought

Indemnity by the Company and the Underwriter. (a) The Company agrees to indemnify, defend and hold harmless the Underwriter, each its members, directors and officers, and any person that who controls the Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the Underwriter's agentssuch persons, employeesmembers, officers and directors and officers, and the agentssuccessors and assigns of all of the foregoing persons, employees, officers and directors of any such controlling person (collectively, the "Underwriter indemnified parties") from and against any and all lossesloss, claimsdamage, damagesexpense, judgments, xxxxxxxxxxx and expenses liability or claim (including the fees and expenses reasonable cost of counsel and other expenses in connection with investigating, defending or settling any such action or claiminvestigation) which, jointly or severally, the Underwriter or any Underwriter indemnified party such person may incur under the Act, the Exchange Act, the common law or otherwise, insofar as they are incurred (and regardless of whether such Underwriter indemnified party is a party to the litigationloss, if any) arising damage, expense, liability or claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in the registration statement relating Registration Statement (or in the Registration Statement as amended by any post-effective amendment thereof by the Company) or in a Prospectus (the term Prospectus for the purpose of this Section 8 being deemed to the Securities or include the Prospectus and the Prospectus as amended or any Preliminary Prospectussupplemented by the Company), or arising arises out of or is based upon any omission or alleged omission to state therein a material fact required to be stated therein in either such Registration Statement or Prospectus or necessary to make the statements made therein not misleading, except insofar as such losses, claims, damages, judgments, liabilities or expenses arise out of, or are based upon, any such loss, damage, expense, liability or claim arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission based upon of a material fact contained in and in conformity with information with respect to the Underwriter furnished in writing by the Underwriter to the Company expressly for use therein with reference to the UnderwriterUnderwriter in such Registration Statement or Prospectus 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 such Registration Statement or Prospectus or necessary to make such information not misleading. This indemnity agreement will be in addition to any liability the Company otherwise may have. (b) If any action or proceeding (including any governmental or regulatory claim, suit, action, proceeding, investigation or proceedinginquiry (together, a "Proceeding") shall be is brought against the Underwriter or asserted against any Underwriter indemnified party, with such person in respect to of which indemnity may be sought against the Company pursuant to thisthe foregoing paragraph, the Underwriter or such person shall promptly notify the Company in writing of the institution of such Proceeding and the Company shall assume the defense of such Proceeding, including the employment of counsel reasonably satisfactory to such indemnified party and payment of all fees and expenses; provided, however, that the omission to so notify the Company shall not relieve the Company from any liability which it may have to the Underwriter to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. The Underwriter or controlling person shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Underwriter or 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 or 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 local counsel) in any one Proceeding or series of related proceedings 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 Underwriter and any such person from and against any loss or liability by reason of such settlement. 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 failure to act. (b) The Underwriter agrees to indemnify, defend and hold harmless the Company, its directors and officers and any person who controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and such person's directors and officers, and the successors and assigns of all of the foregoing persons, from and against any loss, damage, expense, liability or claim (including the reasonable cost of investigation) which, jointly or severally, the Company or any such person may incur under the Act, the Exchange Act, the common law or otherwise, insofar as such loss, damage, expense, liability or claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in and in conformity with information furnished in writing by or on behalf of the Underwriter to the Company expressly for use with reference to the Underwriter in the Registration Statement (or in the Registration Statement as amended by any post-effective amendment thereof by the Company) or in a Prospectus 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 such Registration Statement or such Prospectus or necessary to make such information not misleading. If any Proceeding is brought against the Company or any such person in respect of which indemnity may be sought against the Underwriter pursuant to the foregoing paragraph, the Company or such person shall promptly notify the Underwriter in writing of the institution of such Proceeding and the Underwriter shall assume the defense of such Proceeding, including the employment of counsel reasonably satisfactory to such indemnified party and payment of all fees and expenses; provided, however, that the omission to notify the Underwriter shall not relieve the Underwriter from any liability which it may have to the Company to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. The Company or such person shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Company or such person unless the employment of such counsel shall have been authorized in writing by the Underwriter in connection with the defense of such Proceeding or the Underwriter 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 or additional to or in conflict with those available to the Underwriter (in which case the Underwriter shall not have the right to direct the defense of such Proceeding on behalf of the indemnified party or parties, but the Underwriter may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of the Underwriter), in any of which events such fees and expenses shall be borne by the Underwriter and paid as incurred (it being understood, however, that the Underwriter 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 representing the indemnified parties who are parties to such Proceeding). The Underwriter shall not be liable for any settlement of such Proceeding effected without the written consent of the Underwriter, but if settled with the written consent of such Underwriter, such Underwriter agrees to indemnify and hold harmless the Company and any such person from and against any loss or liability by reason of such settlement. 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. (c) If the indemnification provided for in this Section 8 is unavailable to an indemnified party under subsections (a) and (b) of this Section 8 or insufficient to hold an indemnified person harmless in respect of any losses, damages, expenses, liabilities or claims referred to therein, then each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, damages, expenses, liabilities or claims (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriter on the other hand from the offering of the Shares or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Underwriter on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities or claims, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriter on the other shall be deemed to be in the same proportion as the total proceeds from the offering (net of underwriting discounts and commissions but before deducting expenses) received by the Company bear to the underwriting discounts and commissions received by the Underwriter. The relative fault of the Company on the one hand and of the Underwriter on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Underwriter and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities or claims referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such party in connection with investigating, preparing to defend or defending any Proceeding. (d) The Company and the Underwriter agree that it would not be just and equitable if contribution pursuant to this Section 8 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (c) above. Notwithstanding the provisions of this Section 8, the Underwriter shall not be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which the Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. (e) The indemnity and contribution agreements contained in this Section 8 and the covenants, warranties and representations of the Company contained in this Agreement shall remain in full force and effect regardless of any investigation made by on behalf of the Underwriter, its members, directors or officers or any person (including each member, officer or director of such person) who controls the Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, or by or on behalf of the Company, its directors and officers or any person who controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and shall survive any termination of this Agreement or the issuance and delivery of the Shares. The Company and the Underwriter agree promptly to notify the other of the commencement of any Proceeding against it and, in the case of the Company, against any of the Company's officers or directors, in connection with the issuance and sale of the Shares, or in connection with the Prospectus or Registration Statement.