Common use of Registration and Indemnity Clause in Contracts

Registration and Indemnity. (a) In the event that the Company proposes to register any of its securities pursuant to the Securities Act of 1933 ("33 Act"), whether as a primary or as a secondary offering or both, and whether or not pursuant to registration rights granted to other holders of securities of the Company, the Company shall give each Warrant Holder prior written notice of such incident no more than five (5) days following the date upon which the board of directors of the Company authorizes the registration or the negotiation of the registration of such securities, whichever shall first occur, and no less than sixty (60) days prior to the date upon which any such registration of such securities is expected to become effective under the 33 Act. Upon the written request of any Warrant Holder, within twenty (20) days of the Warrant Holder's receipt of such notice, the Company shall, at its sole expense, include in such registration all shares of Common Stock or other securities which have been or may be acquired pursuant to this Warrant Agreement and, in the event that this Warrant Agreement has been exercised in whole or in part, or any Warrant Holder notifies the Company no less than thirty (30) days prior to the proposed effective date of such registration under the Act that the Warrant Holder intends to exercise this Warrant the Company shall, upon the written request of the Warrant Holder, sell such shares of Common Stock or other securities in the same manner and on the same terms and conditions as securities are being sold in such registered offering. The Company shall not be required to register fewer than 25,000 shares of Common Stock or such lesser number of shares of Common Stock as may then be subject to this Warrant Agreement. The Warrant Holder shall cooperate with the Company to the extent reasonably necessary to permit the Company to effectuate any such registration. Notwithstanding the foregoing, the Company shall not be obligated to pay, and the Warrant Holder shall pay or permit the deduction from its proceeds of, that portion of the underwriter's compensation (net of expenses) attributable solely to the sale of securities of the Warrant Holder registered and sold pursuant to this Section. The Company shall not be required to register this Warrant Agreement or the securities issued or issuable pursuant to this Warrant Agreement pursuant to this Section in the event that the Company shall register securities solely pursuant to a registration statement on Form S-8 promulgated under the 33 Act or any successor to such form or on a Form S-4 used solely in connection with the issuance of securities to equity holders of an entity being acquired by the Company or which is being merged into the Company with the Company being the survivor provided, however that, in the event the Company shall register the sale of Shares of Common Stock or other equity securities then held by persons or entities other than the Company, the Warrant Holder shall be entitled to registration of the shares of Common Stock underlying the Warrant Agreement in accordance with the provision of this Section 10. (b) Each Warrant Holder registering Shares shall indemnify and hold harmless the Company for any damages to which the Company becomes subject under the 33 Act solely to the extent such damages arise out of or are based upon any untrue statement of or the omission to state a material fact required to be stated in a registration statement pursuant to which this Warrant or securities underlying this Warrant are registered pursuant to the Warrant Holder's request under this Section, in each case to the extent that such untrue fact or omission was made in reliance upon or in conformity with written information furnished to the Company by the Warrant Holder for use with reference to the Warrant Holder in the preparation of such registration statement. (c) Notwithstanding anything to the contrary contained in this Warrant neither this Warrant nor the Shares underlying this Warrant may be sold, assigned or otherwise transferred unless this Warrant or such shares, as the case may be, are registered pursuant to the Securities Act of 1933, as amended (the "33 Act") and under applicable state securities laws or an exemption from the 33 Act and such state securities laws is available in respect of this Warrant, such shares or such sale, assignment or transfer, as the case may be. (d) In the event that any Warrant Holder shall exercise his rights pursuant to Section 10 (a) of this Agreement, the Company will furnish to each Warrant Holder, upon request, an opinion of counsel satisfactory to any Warrant Holder to the effect that (i) a registration statement under the 33 Act, as then in effect with respect to Shares issuable upon exercise of the Warrant and that the prospectus included therein complies as to form in all material respects, except as to financial statements, including schedules, and other accounting and financial data, as to which counsel need express no opinion, with the requirements of the 33 Act; or (ii) a registration statement under the 33 Act with respect to said Shares is not required. In the event that said opinion states that a registration statement is in effect, the Company will, from time to time, furnish each Warrant Holder with current prospectuses meeting the requirements of the Act and such rules and regulations. The Company further agrees to pay all fees, costs and expenses in connection with the preparation and delivery to each Warrant Holder of the foregoing opinions and prospectuses and the above-mentioned registrations and other actions, and to immediately notify each Warrant Holder in the event that (i) the Commission shall have issued or threatened to issue any order preventing or suspending the use of the prospectus; (ii) at any time the prospectus shall contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or (iii) if for any reason it shall be necessary to amend or supplement the prospectus in order to comply with the 33 Act. (e) If any action, claim or proceeding shall be brought or asserted under this Section against a person indemnified pursuant to this Section (an "Indemnified Person) in respect of which indemnity may be sought under this Section from any other person or entity (an Indemnifying Person"), the Indemnified Person shall give prompt written notice of such action or claim to the Indemnifying Person who shall assume the defense thereof, including the employment of counsel reasonably satisfactory to Indemnified Person and the payment of all expenses; except that any delay or failure to so notify the Indemnifying Person shall not relieve the Indemnifying Person of his or its obligations hereunder. The Indemnified Person shall have the right to employ separate counsel in any of the foregoing actions, claims or proceedings and to participate in the defense thereof and the fees and expenses of such counsel shall be at the expense of the Indemnifying Person unless the Indemnified Person and the Indemnifying Person are named as parties and legal counsel to the Indemnifying Person or the Indemnified Person shall in good faith determine that representation by the same counsel is inappropriate. In the event that the Indemnifying Person, within ten days after notice of any such action or claim, fails to assume the defense thereof, the Indemnified Person shall have the right to undertake the defense, compromise or settlement of such action, claim or proceeding for the account of the Indemnifying Person, subject to the right of the Indemnifying Person to assume the defense of such action, claim or proceeding with counsel reasonably satisfactory to the Indemnified Person at any time prior to the settlement, compromise or final determination thereof. Anything in this Section to the contrary notwithstanding, the Indemnifying Person shall not, without the Indemnified Person's prior written consent, settle or compromise any action or claim or consent to the entry of any judgment with respect to any action, claim or proceeding for anything other than money damages paid by the Indemnifying Person that includes as an unconditional term thereof the release by the claimant or the plaintiff of the Indemnified Person from all liability in respect of such action, claim or proceeding.