17
Investors
participating
in
such
registration
as
a
group
(selected
by
the
Investors
holding
Registrable
Securities
included
in
the
registration).
In
addition,
the
Company
shall
be
responsible
for
all
of
its
internal
expenses
incurred
in
connection
with
the
consummation
of
the
transactions
contemplated
by
this
Agreement
(including,
without
limitation,
all
salaries
and
expenses
of
its
officers and employees performing legal or accounting duties) and the expense of any annual audits.
All Selling Expenses relating to
the offer and sale
of Registrable Securities registered
under the Securities Act
pursuant to this Agreement
shall be borne and
paid by
the holders of such Registrable Securities, in proportion to the number of Registrable
Securities included in such registration for each
such holder.
(i)
The Company shall indemnify and
hold harmless, to the fullest extent
permitted by law,
each holder of Registrable
Securities, such holder’s officers, directors, managers, members, partners, stockholders and Affiliates, each
underwriter, broker or any
other Person acting on
behalf of such holder of
Registrable Securities and each
other Controlling Person, if
any, who
controls any of
the
foregoing
Persons,
against
all
losses,
claims,
actions,
damages,
liabilities
and
expenses,
joint
or
several,
to
which
any
of
the
foregoing
Persons
may
become
subject
under
the
Securities
Act
or
otherwise,
insofar
as
such
losses,
claims,
actions,
damages,
liabilities or
expenses arise
out of
or are
based upon
(A) any
untrue or
alleged untrue
statement of
a material
fact contained
in any
Registration Statement, Prospectus,
preliminary Prospectus, free
writing prospectus (as
defined in Rule
405 under the Securities
Act
or any successor rule thereto) or any amendment thereof or supplement
thereto or any omission or alleged omission of a material fact
required to be
stated therein or
necessary to make
the statements therein
(in the case
of a Prospectus,
preliminary Prospectus
or free
writing prospectus, in light of the circumstances under which
they were made) not misleading or (B) any violation
or alleged violation
by
the
Company
of
the
Securities
Act
or
any
other
similar
federal
or
state
securities
laws
or
any
rule
or
regulation
promulgated
thereunder
applicable
to
the
Company
and
relating
to
action
or
inaction
required
of
the
Company
in
connection
with
any
such
registration, qualification or compliance; and shall reimburse such Persons
for any reasonable and documented legal or
other expenses
incurred by any of them in connection with investigating or defending any such loss, claim, action, damage or liability, except insofar
as the same are
caused by or contained
in any information furnished
in writing to
the Company by
such holder expressly for
use therein
or by such holder’s failure to deliver a
copy of the Registration Statement, Prospectus, preliminary Prospectus, free writing
prospectus
(as defined in Rule 405 under the Securities Act or any successor rule thereto) or
any amendments or supplements thereto (if the same
was required by applicable law to be so delivered) after the Company has furnished
such holder with a sufficient number of copies of
the same prior to any written confirmation of the sale of Registrable Securities.
This indemnity shall be in addition to any liability the
Company may otherwise have.
(ii)
In connection
with any
registration in
which
a holder
of Registrable
Securities is
participating,
each such
holder
shall furnish
to the
Company in
writing such
information as
the Company
reasonably requests
for use
in connection
with any
such
Registration
Statement
or
Prospectus
and,
to
the
extent
permitted
by
law,
shall
indemnify
and
hold
harmless,
the
Company,
each
director of the Company,
each officer of the
Company who shall sign such
Registration Statement, each
underwriter, broker
or other
Person acting on behalf of
the holders of Registrable
Securities and each Controlling Person
who controls any of
the foregoing Persons
against any losses, claims,
actions, damages, liabilities
or expenses resulting
from any untrue or
alleged untrue statement of
material
fact contained in the
Registration Statement, Prospectus, preliminary Prospectus, free
writing prospectus (as defined
in Rule 405 under
the Securities Act or any successor rule thereto) or any amendment thereof or supplement thereto or any omission or alleged omission
of a
material fact
required to
be stated
therein or
necessary to
make the
statements therein
(in the
case of
a Prospectus,
preliminary
Prospectus or free writing prospectus,
in light of the
circumstances under which they were
made) not misleading, but only
to the extent
that
such
untrue
statement
or
omission
is
contained
in
any
information
so
furnished
in writing
by
such
holder;
provided,
that
the
obligation to indemnify shall be
several, not joint and several,
for each holder and shall
not exceed an amount equal
to the net proceeds
(after underwriting fees, commissions
or discounts) actually received
by such holder from the sale
of Registrable Securities pursuant
to such Registration Statement.
This indemnity shall be in addition to any liability the selling holder may otherwise have.
(iii)
Promptly
after
receipt
by
an indemnified
party
of
notice
of
the
commencement
of
any
action
involving
a
claim
referred to
in this Section
3.07(d), such
indemnified party
shall, if a
claim in respect
thereof is made
against an indemnifying
party,
give written notice to the latter
of the commencement of such action.
The failure of any indemnified party
to notify an indemnifying
party
of
any
such
action
shall
not
(unless
such
failure
shall
have
a
material
adverse
effect
on
the
indemnifying
party)
relieve
the
indemnifying party from any liability in respect of such action that it may have to such indemnified party hereunder.
In case any such
action is brought against
an indemnified party,
the indemnifying party shall
be entitled to participate
in and to assume the
defense of
the claims in any such action that are subject or potentially
subject to indemnification hereunder,
jointly with any other indemnifying
party similarly notified to the extent that it may
wish, with counsel reasonably satisfactory to such indemnified party, and after written
notice from the indemnifying party
to such indemnified party of its election
so to assume the defense thereof,
the indemnifying party
shall not be responsible for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense
thereof; provided that, if (A) any
indemnified party shall have reasonably
concluded that there may be one or more
legal or equitable
defenses available to such indemnified party which are additional to or conflict with those available to the indemnifying party,
or that
such claim or
litigation involves or
could have an
effect upon matters
beyond the scope
of the indemnity
provided hereunder,
or (B)
such action
seeks an
injunction or
equitable relief
against any
indemnified party
or involves
actual or
alleged criminal
activity,
the
indemnifying party
shall not
have the
right to
assume the
defense of
such action
on behalf
of such
indemnified party
without
such
indemnified
party’s
prior
written consent
(but,
without
such consent,
shall
have
the right
to
participate
therein
with
counsel
of its
choice) and such indemnifying party shall reimburse such indemnified party and
any Controlling Person of such indemnified party for
that
portion
of
the
fees
and
expenses
of
any
counsel
retained
by
the
indemnified
party
which
is
reasonably
related
to
the
matters
covered by
the indemnity
provided hereunder.
If the
indemnifying party
is not
entitled to,
or elects
not to,
assume the
defense of
a
