1Indemnification. 4.1. 1The Company agrees to indemnify and hold free and harmless, to the extent permitted by law, each Holder of Registrable Securities, its officers, directors, partners, stockholders or members, affiliates, consultants, fiduciaries, managers, employees, agents and each Person who controls such Holder (within the meaning of the Securities Act) (the “Indemnified Parties”) from and against all actions, causes of action, suits, losses, claims, damages, liabilities and expenses (including, without limitation, reasonable attorneys’ fees and expenses) (collectively, “Losses”) caused by any of the following (each, a “Violation”): (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, Prospectus, preliminary Prospectus or Free Writing Prospectus or any amendment thereof or supplement thereto or (ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading. The Company will reimburse such Indemnified Party for any legal and other expenses reasonably incurred in connection with investigating or defending any such Losses, except insofar as any such Losses arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in filing in reliance upon and in conformity with any information furnished in writing to the Company by such Indemnified Party, relating to such Indemnified Party, expressly for use therein. The Company shall indemnify the Underwriters, their officers and directors and each Person who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to the indemnification of the Indemnified Parties. 4.1. 2In connection with any Registration Statement in which a Holder of Registrable Securities is participating, such Holder shall furnish to the Company in writing such information and affidavits 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 the Company, its directors and officers and agents and each Person who controls the Company (within the meaning of the Securities Act) from and against any Losses resulting from (as determined by a final and appealable judgment, order or decree of a court of competent jurisdiction) any untrue statement of material fact contained in the Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, and such Indemnified Party will reimburse the Company and such other indemnitees for any legal and other expenses reasonably incurred in connection with investigating or defending such Losses, but only to the extent that the same arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such filing in reliance upon and in conformity with any information or affidavit so furnished in writing by such Indemnified Party, relating to such Indemnified Party, expressly for use therein; provided, however, that the obligation to indemnify shall be several, not joint and several, among such Holders of Registrable Securities, and the liability of each such Holder of Registrable Securities shall be in proportion to and limited to the net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Registration Statement. The Holders of Registrable Securities shall indemnify the Underwriters, their officers, directors and each Person who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to indemnification of the Company, and the Company shall use its commercially reasonable efforts to ensure that no Underwriter shall require any Holder of Registrable Securities to provide any indemnification other than that provided hereinabove in this Section 4.1.2, and if, despite the Company’s commercially reasonable efforts, an Underwriter requires any Holder of Registrable Securities to provide additional indemnification, such Holder may elect not to participate in such Underwritten Offering (but shall not have any claim against the Company as a result of such election). 4.1. 3Any Person entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any Person’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a conflict or potential conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the prior written consent of the Indemnified Party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) and which settlement includes a statement or admission of fault or culpability on the part of such Indemnified Party or does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation. 4.1. 4The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the Indemnified Party or any officer, director, partner, stockholder, member or controlling Person of such Indemnified Party and shall survive the transfer of Registrable Securities. 4.1. 5If the indemnification provided under Section 4.1 hereof from the indemnifying party is unavailable or insufficient to hold harmless an Indemnified Party in respect of any Loss referred to herein, then such indemnifying party, in lieu of indemnifying the Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Loss in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the Indemnified Party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party or parties on the one hand and the Indemnified Party or parties on the other hand in connection with the statements or omissions that resulted in such Loss shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by, such indemnifying party or the Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action; provided, however, that the liability of any Holder or any director, officer or controlling person thereof under this subsection 4.1.5 shall be limited to the amount of the net proceeds received by such Holder in such offering giving rise to such liability. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in subsections 4.1.1, 4.1.2 and 4.1.3 above, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceedings. The parties hereto agree that it would not be just and equitable if contribution pursuant to this subsection 4.1.5 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 this subsection 4.1.5. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) as determined by a final, non-appealable judgment of a court of competent jurisdiction shall be entitled to contribution pursuant to this subsection 4.1.5 from any person who was not guilty of such fraudulent misrepresentation.
Appears in 1 contract
1Indemnification. 4.1. 1The Company agrees to indemnify and hold free and harmless, (a) Subject to the extent permitted limitations expressly provided in this Agreement, all Indemnitees shall be indemnified and held harmless by law, each Holder of Registrable Securities, its officers, directors, partners, stockholders or members, affiliates, consultants, fiduciaries, managers, employees, agents and each Person who controls such Holder (within the meaning of the Securities Act) (the “Indemnified Parties”) Company from and against any and all actions, causes of action, suits, losses, claims, damages, liabilities and liabilities, joint or several, expenses (including, without limitation, including reasonable attorneys’ legal fees and expenses) ), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals (collectively, “Losses”) caused by any of the following (each, a “ViolationProceeding”): (i) ), in which any untrue Indemnitee may be involved, or alleged untrue statement of material fact contained in any Registration Statement, Prospectus, preliminary Prospectus or Free Writing Prospectus or any amendment thereof or supplement thereto or (ii) any omission or alleged omission of a material fact required is threatened to be stated therein involved, as a party or necessary otherwise, by reason of its status as an Indemnitee and acting (or refraining to make act) in such capacity. Notwithstanding the statements therein foregoing, an Indemnitee shall not misleading. The Company will reimburse such Indemnified Party for any legal be indemnified and other expenses reasonably incurred in connection with investigating or defending any such Losses, except insofar as any such Losses arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in filing in reliance upon and in conformity with any information furnished in writing held harmless pursuant to the Company by such Indemnified Party, relating to such Indemnified Party, expressly for use therein. The Company shall indemnify the Underwriters, their officers and directors and each Person who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to the indemnification of the Indemnified Parties.
4.1. 2In connection with any Registration Statement in which a Holder of Registrable Securities is participating, such Holder shall furnish to the Company in writing such information and affidavits 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 the Company, its directors and officers and agents and each Person who controls the Company (within the meaning of the Securities Act) from and against any Losses resulting from (as determined by this Agreement if there has been a final and non-appealable judgment, order or decree of judgment entered by a court of competent jurisdictionjurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Agreement, the Indemnitee acted in bad faith or engaged in fraud, gross negligence or willful misconduct. Any indemnification pursuant to this Section 6.1 shall be made only out of the assets of the Company, it being agreed that the Members shall not be personally liable for such indemnification and shall have no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) any untrue statement of material fact contained Any right to indemnification conferred in the Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission of this Section 6.1 shall include a material fact required limited right to be stated therein paid or necessary to make the statements therein not misleading, and such Indemnified Party will reimburse reimbursed promptly by the Company and such other indemnitees for any legal and other all reasonable and documented out-of-pocket expenses reasonably as they are incurred by an Indemnitee entitled or authorized to be indemnified under this Section 6.1 who was, is or is threatened, to be made a named defendant or respondent in connection with investigating or defending such Losses, but only to a Proceeding in advance of the extent that final disposition of the same arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such filing in reliance upon Proceeding and in conformity with without any information or affidavit so furnished in writing by such Indemnified Party, relating determination as to such Indemnified Party, expressly for use thereinIndemnitee’s ultimate entitlement to indemnification; provided, however, that the obligation to indemnify payment of such expenses incurred by any such Indemnitee in advance of final disposition of a Proceeding shall be several, not joint and several, among such Holders of Registrable Securities, and the liability of each such Holder of Registrable Securities shall be in proportion to and limited made only upon delivery to the net proceeds received Company of a written affirmation by such Holder from Indemnitee of its good faith belief that he has met the sale of Registrable Securities pursuant to such Registration Statement. The Holders of Registrable Securities shall indemnify the Underwriters, their officers, directors and each Person who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to requirements necessary for indemnification of the Company, and the Company shall use its commercially reasonable efforts to ensure that no Underwriter shall require any Holder of Registrable Securities to provide any indemnification other than that provided hereinabove in under this Section 4.1.2, 6.1 and if, despite the Company’s commercially reasonable efforts, an Underwriter requires any Holder of Registrable Securities to provide additional indemnification, such Holder may elect not to participate in such Underwritten Offering (but shall not have any claim against the Company as a result of such election).
4.1. 3Any Person entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any Person’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a conflict or potential conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the prior written consent of the Indemnified Party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) and which settlement includes a statement or admission of fault or culpability on the part of such Indemnified Party or does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation.
4.1. 4The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made undertaking by or on behalf of such Indemnitee to promptly repay all amounts so advanced if it shall ultimately be determined that such indemnified Person is not entitled to be indemnified under this Section 6.1 or otherwise.
(c) The indemnification provided by this Section 6.1 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Indemnified Party Members, as a matter of law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any officerother capacity, director, partner, stockholder, member or controlling Person of such Indemnified Party and shall survive continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the transfer benefit of Registrable Securitiesthe heirs, successors, assigns and administrators of the Indemnitee.
4.1. 5If the indemnification provided under Section 4.1 hereof from the indemnifying party is unavailable or insufficient to hold harmless an Indemnified Party in respect of any Loss referred to herein(d) The Company may purchase and maintain insurance, then such indemnifying party, in lieu of indemnifying the Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Loss in such proportion as is appropriate to reflect the relative fault on behalf of the indemnifying party Company, its Affiliates, the Indemnitees and such other Persons as the Indemnified PartyCompany shall determine, as well as against any other relevant equitable considerations. The relative fault of the indemnifying party liability that may be asserted against, or parties on the one hand and the Indemnified Party or parties on the other hand expense that may be incurred by, such Person in connection with the statements or omissions that resulted in such Loss shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by, such indemnifying party or the Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action; provided, however, that the liability of any Holder Company’s or any director, officer of its Affiliate’s activities or controlling person thereof under this subsection 4.1.5 shall be limited to the amount such Person’s activities on behalf of the net proceeds received by Company or any of its Affiliates, regardless of whether the Company would have the power to indemnify such Holder in Person against such offering giving rise to such liability. liability under the provisions of this Agreement.
(e) The amount paid or payable by a party as a result provisions of this Section 6.1 are for the benefit of the losses or other liabilities referred to above Indemnitees and their heirs, successors, assigns, executors and administrators and shall not be deemed to include, subject to create any rights for the limitations set forth in subsections 4.1.1, 4.1.2 and 4.1.3 above, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceedings. The parties hereto agree that it would not be just and equitable if contribution pursuant to this subsection 4.1.5 were determined by pro rata allocation or by benefit of any other method Persons.
(f) Any amendment, modification or repeal of allocationthis Section 6.1 or any provision hereof shall be prospective only and shall not in any manner terminate, which does not take account reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the equitable considerations referred Company to indemnify any such Indemnitee under and in accordance with the provisions of this subsection 4.1.5. No person guilty Section 6.1 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of fraudulent misrepresentation when such claims may arise or be asserted.
(within the meaning of Section 11(fg) of the Securities Act) as determined by a finalTO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, non-appealable judgment of a court of competent jurisdiction shall be entitled to contribution pursuant to this subsection 4.1.5 from any person who was not guilty of such fraudulent misrepresentationAND SUBJECT TO SECTION 6.1(A), THE PROVISIONS OF THE INDEMNIFICATION PROVIDED IN THIS SECTION 6.1 ARE INTENDED BY THE MEMBERS TO APPLY EVEN IF SUCH PROVISIONS HAVE THE EFFECT OF EXCULPATING THE INDEMNITEE FROM LEGAL RESPONSIBILITY FOR THE CONSEQUENCES OF SUCH PERSON’S NEGLIGENCE, FAULT OR OTHER CONDUCT.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Evolve Transition Infrastructure LP)
1Indemnification. 4.1. 1The Company agrees to indemnify and hold free and harmlessindemnify, to the extent permitted by law, each Holder of Registrable Securities, its officers, directors, partners, stockholders or members, affiliates, consultants, fiduciaries, managers, employees, members and agents and each Person person or entity who controls such Holder (within the meaning of the Securities Act) (the “Indemnified Parties”) from and ), against all actions, causes of action, suits, losses, claims, damages, liabilities and out-of-pocket expenses (including, without limitation, reasonable outside attorneys’ fees and expensesreasonable expenses of investigation) (collectivelyarising out of, “Losses”) caused by any of the following (each, a “Violation”): (i) resulting from or based upon any untrue or alleged untrue statement of material fact contained in or incorporated by reference in any Registration Statement, Prospectus, preliminary Prospectus or Free Writing preliminary Prospectus or any amendment thereof or supplement thereto or (ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading. The Company will reimburse such Indemnified Party for any legal and other expenses reasonably incurred in connection with investigating or defending any such Losses, except insofar as any such Losses arise out of the same are caused by or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made contained in filing in reliance upon and in conformity with any information or affidavit so furnished in writing to the Company by such Indemnified Party, relating to such Indemnified Party, Holder expressly for use therein. The Company shall indemnify the Underwriters, their officers and directors and each Person person or entity who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to the indemnification of the Indemnified PartiesHolder.
4.1. 2In connection with any Registration Statement in which a Holder of Registrable Securities is participating, such Holder shall furnish (or cause to be furnished) to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus (the “Holder Information”) and, to the extent permitted by law, shall indemnify the Company, its directors and officers directors, officers, partners, members and agents and each Person person or entity who controls the Company (within the meaning of the Securities Act) from against all losses, claims, damages, liabilities and against any Losses out-of-pocket expenses (including, without limitation, reasonable outside attorneys’ fees and reasonable expenses of investigation) arising out of, resulting from (as determined by a final and appealable judgment, order or decree of a court of competent jurisdiction) based upon any untrue or alleged untrue statement of material fact contained or incorporated by reference in the any Registration Statement, Prospectus or preliminary Prospectus 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 not misleading, and such Indemnified Party will reimburse the Company and such other indemnitees for any legal and other expenses reasonably incurred in connection with investigating or defending such Losses, but only to the extent that the same arise out of or are based upon an such untrue statement is contained in (or alleged untrue statement or omission or alleged omission made not contained in, in such filing in reliance upon and in conformity with the case of an omission) any information or affidavit Holder Information so furnished in writing by or on behalf of such Indemnified Party, relating to such Indemnified Party, Holder expressly for use therein; therein; provided, however, that the obligation to indemnify shall be several, several and not joint and several, among such Holders of Registrable Securities, and the liability of each such Holder of Registrable Securities shall be in proportion to and limited to the net proceeds actually received by such Holder from the sale of Registrable Securities pursuant to such Registration Statement. The Holders of Registrable Securities shall indemnify the Underwriters, their officers, directors and each Person who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to indemnification of the Company, and the Company shall use its commercially reasonable efforts to ensure that no Underwriter shall require any Holder of Registrable Securities to provide any indemnification other than that provided hereinabove in this Section 4.1.2, and if, despite the Company’s commercially reasonable efforts, an Underwriter requires any Holder of Registrable Securities to provide additional indemnification, such Holder may elect not to participate in such Underwritten Offering (but shall not have any claim against the Company as a result of such election).
4.1. 3Any Person person or entity entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any Personperson’s or entity’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying partyparty through the forfeiture of substantive rights or defenses) and in no event shall such failure relieve the indemnifying party from any other liability that it may have to such indemnified party and (ii) unless in such indemnified party’s reasonable judgment a conflict or potential conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under this Article IV for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation, unless (i) such indemnified party reasonably objects to such assumption on the grounds that there may be defenses available to it which are different from or in addition to the defenses available to such indemnifying party, (ii) the indemnifying party shall have failed within a reasonable period of time to assume such defense or, having assumed such defense, has not conducted the defense of such claim actively and diligently or (iii) the named parties in any such proceeding (including any impleaded parties) include both the indemnified party and the indemnifying party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interest between them, in which case the indemnified party shall be promptly reimbursed by the indemnifying party for the expenses incurred in connection with retaining one separate legal counsel, in addition to any local counsel (for the avoidance of doubt, for all indemnified parties in connection therewith). If such defense is assumed, (A) the indemnifying party shall keep the indemnified party informed as to the status of such claim at all stages thereof (including all settlement negotiations and offers), promptly submit to such indemnified party copies of all pleadings, responsive pleadings, motions and other similar legal documents and paper received or filed in connection therewith, permit such indemnified party and their respective counsels to confer with the indemnifying party and its counsel with respect to the conduct of the defense thereof, and permit indemnified party and its counsel a reasonable opportunity to review all legal papers to be submitted prior to their submission and (B) the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld). An In any action hereunder as to which the indemnifying party who is not entitled to, or elects not to, assume has assumed the defense thereof with counsel satisfactory to the indemnified party, the indemnified party shall continue to be entitled to participate in the defense thereof, with counsel of a claim its own choice, but the indemnifying party shall not be obligated hereunder to pay reimburse the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claimfor the costs thereof. No indemnifying party shall, without the prior written consent of the Indemnified Partyindemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) and or which settlement includes a statement or admission of fault fault, culpability or culpability failure to act on the part of such Indemnified Party indemnified party or which settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party indemnified party of a release from all liability in respect to such claim or litigationlitigation that shall be in form and substance satisfactory to such indemnified party.
4.1. 4The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the Indemnified Party indemnified party or any officer, director, partner, stockholder, member director or controlling Person person or entity of such Indemnified Party indemnified party and shall survive the transfer of Registrable Securitiessecurities.
4.1. 5If the indemnification provided under Section 4.1 hereof from the indemnifying party is unavailable or insufficient to hold harmless an Indemnified Party indemnified party in respect of any Loss losses, claims, damages, liabilities and out-of-pocket expenses referred to herein, then such the indemnifying party, in lieu of indemnifying the Indemnified Partyindemnified party, shall contribute to the amount paid or payable by such Indemnified Party the indemnified party as a result of such Loss losses, claims, damages, liabilities and out-of-pocket expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the Indemnified Partyindemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party or parties on the one hand and the Indemnified Party or parties on the other hand in connection with the statements or omissions that resulted in such Loss indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by (or not made by, in the case of an omission), or relates to information supplied byby (or not supplied by in the case of an omission), such indemnifying party or the Indemnified Partyindemnified party, and the parties’ indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action; action; provided, however, that the liability of any Holder or any director, officer or controlling person thereof under this subsection Section 4.1.5 shall be limited to the amount of the net proceeds actually received by such Holder in such offering giving rise to such liability. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in subsections Sections 4.1.1, 4.1.2 and 4.1.3 above, any legal or other fees, charges or out-of-pocket expenses reasonably incurred by such party in connection with any investigation or proceedingsproceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this subsection Section 4.1.5 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 this subsection Section 4.1.5. No person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) as determined by a final, non-appealable judgment of a court of competent jurisdiction shall be entitled to contribution pursuant to this subsection Section 4.1.5 from any person or entity who was not guilty of such fraudulent misrepresentation.
4.1. 6The obligations of the parties under this Article IV shall be in addition to any liability which any party may otherwise have to any other party.
Appears in 1 contract
Sources: Registration Rights Agreement (Angel Studios, Inc.)
1Indemnification. 4.1. 1The Company agrees to indemnify and hold free and harmlessindemnify, to the extent permitted by law, each Holder of Registrable Securities, its officers, directors, partners, stockholders or members, affiliates, consultants, fiduciaries, managers, employees, agents and directors (if applicable) and each Person person who controls such Holder (within the meaning of the Securities Act) (the “Indemnified Parties”) from and against all actions, causes of action, suits, losses, claims, damages, liabilities and expenses (including, without limitation, reasonable including attorneys’ fees and expensesfees) (collectively, “Losses”) caused by any of the following (each, a “Violation”): (i) resulting from any untrue or alleged untrue statement of material fact contained in any Registration Statement, Prospectus, preliminary Prospectus or Free Writing preliminary Prospectus or any amendment thereof or supplement thereto or (ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading. The Company will reimburse such Indemnified Party for any legal and other expenses reasonably incurred in connection with investigating or defending any such Losses, except insofar as any such Losses arise out of the same are caused by or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made contained in filing in reliance upon and in conformity with any information furnished in writing to the Company by such Indemnified Party, relating to such Indemnified Party, Holder expressly for use therein. The Company shall indemnify the Underwriters, their officers and directors and each Person person who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to the indemnification of the Indemnified PartiesHolder.
4.1. 2In connection with any Registration Statement in which a Holder of Registrable Securities is participating, such Holder shall furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus (the “Holder Information”) and, to the extent permitted by law, shall indemnify the Company, its directors and officers and agents and each Person person who controls the Company (within the meaning of the Securities Act) from and against any Losses losses, claims, damages, liabilities and expenses (including without limitation reasonable attorneys’ fees) resulting from (as determined by a final and appealable judgment, order or decree of a court of competent jurisdiction) any untrue statement of material fact contained in the Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, and such Indemnified Party will reimburse the Company and such other indemnitees for any legal and other expenses reasonably incurred in connection with investigating or defending such Losses, but only to the extent that the same arise out of or are based upon an untrue statement or alleged such untrue statement or omission or alleged omission made is contained in such filing in reliance upon and in conformity with any information or affidavit so furnished in writing by such Indemnified Party, relating to such Indemnified Party, Holder expressly for use therein; provided, however, that the obligation to indemnify shall be several, not joint and several, among such Holders of Registrable Securities, and the liability of each such Holder of Registrable Securities shall be in proportion to and limited to the net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Registration Statement. The Holders of Registrable Securities shall indemnify the Underwriters, their officers, directors and each Person person who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to indemnification of the Company, and the Company shall use its commercially reasonable efforts to ensure that no Underwriter shall require any Holder of Registrable Securities to provide any indemnification other than that provided hereinabove in this Section 4.1.2, and if, despite the Company’s commercially reasonable efforts, an Underwriter requires any Holder of Registrable Securities to provide additional indemnification, such Holder may elect not to participate in such Underwritten Offering (but shall not have any claim against the Company as a result of such election).
4.1. 3Any Person person entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any Personperson’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party) and (ii) unless in the written opinion of counsel of such indemnified party’s reasonable judgment a conflict Party, representation of both parties by the same counsel would be inappropriate due to actual or potential conflict of interest differing interests between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel (plus local counsel) for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment written opinion of counsel of any indemnified party a conflict party, representation of interest may exist both parties by the same counsel would be inappropriate due to actual or potential differing interests between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the prior written consent of the Indemnified Partyindemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) and or which settlement includes a statement or admission of fault or culpability on the part of such Indemnified Party or does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party indemnified party of a release from all liability in respect to such claim or litigation.
4.1. 4The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the Indemnified Party indemnified party or any officer, director, partner, stockholder, member director or controlling Person person of such Indemnified Party indemnified party and shall survive the transfer of securities. The Company and each Holder of Registrable Securities.Securities participating in an offering also agrees to make such provisions as are reasonably requested by any indemnified party for contribution to such party in the event the Company’s or such ▇▇▇▇▇▇’s indemnification is unavailable for any reason.
4.1. 5If the indemnification provided under Section 4.1 hereof from the indemnifying party is unavailable or insufficient to hold harmless an Indemnified Party indemnified party in respect of any Loss losses, claims, damages, liabilities and expenses referred to herein, then such the indemnifying party, in lieu of indemnifying the Indemnified Partyindemnified party, shall contribute to the amount paid or payable by such Indemnified Party the indemnified party as a result of such Loss losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the Indemnified Partyindemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party or parties on the one hand and the Indemnified Party or parties on the other hand in connection with the statements or omissions that resulted in such Loss indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by, such indemnifying party or the Indemnified Partyindemnified party, and the parties’ indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action; provided, however, that the liability of any Holder or any director, officer or controlling person thereof under this subsection Section 4.1.5 shall be limited to the amount of the net proceeds received by such Holder in such offering giving rise to such liability. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in subsections Sections 4.1.1, 4.1.2 and 4.1.3 above, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceedingsproceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this subsection Section 4.1.5 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 this subsection Section 4.1.5. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) as determined by a final, non-appealable judgment of a court of competent jurisdiction shall be entitled to contribution pursuant to this subsection Section 4.1.5 from any person who was not guilty of such fraudulent misrepresentation.
Appears in 1 contract
1Indemnification. 4.1. 1The Company agrees to indemnify and hold free and harmlessindemnify, to the extent permitted by law, each Holder of Registrable Securities, its officers, directors, partners, stockholders or members, affiliates, consultants, fiduciaries, managers, employees, directors and agents and each Person person or entity who controls such Holder (within the meaning of the Securities Act) (the “Indemnified Parties”) from and ), against all actions, causes of action, suits, losses, claims, damages, liabilities and reasonable out-of-pocket expenses (including, without limitation, reasonable outside attorneys’ fees and expenses) (collectively, “Losses”fees) caused by any by, resulting from, arising out of the following (each, a “Violation”): (i) or based upon any untrue or alleged untrue statement of material fact contained in or incorporated by reference in any Registration Statement, Prospectus, preliminary Prospectus or Free Writing preliminary Prospectus or any amendment thereof or supplement thereto or (ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading. The Company will reimburse such Indemnified Party for any legal and other expenses reasonably incurred in connection with investigating or defending any such Losses, except insofar as any such Losses arise out of the same are caused by or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made contained in filing in reliance upon and in conformity with any information or affidavit so furnished in writing to the Company by such Indemnified Party, relating to such Indemnified Party, Holder expressly for use therein. The Company shall indemnify the Underwriters, their officers and directors and each Person person or entity who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to the indemnification of the Indemnified PartiesHolder, subject to customary exclusions.
4.1. 2In connection with any Registration Statement in which a Holder of Registrable Securities is participating, such Holder shall furnish (or cause to be furnished) to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus (the “Holder Information”) and, to the extent permitted by law, shall indemnify the Company, its directors and directors, officers and agents and each Person person or entity who controls the Company (within the meaning of the Securities Act) from against all losses, claims, damages, liabilities and against reasonable out-of-pocket expenses (including, without limitation, reasonable outside attorneys’ fees) caused by any Losses resulting from (as determined by a final and appealable judgment, order untrue or decree of a court of competent jurisdiction) any alleged untrue statement of material fact contained in the or incorporated by reference in any Registration Statement, Prospectus or preliminary Prospectus 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 not misleading, and such Indemnified Party will reimburse the Company and such other indemnitees for any legal and other expenses reasonably incurred in connection with investigating or defending such Losses, but only to the extent that the same arise out of or are based upon an such untrue statement is contained in (or alleged untrue statement or omission or alleged omission made not contained in, in such filing in reliance upon and in conformity with the case of an omission) any information or affidavit so furnished in writing by or on behalf of such Indemnified Party, relating to such Indemnified Party, Holder expressly for use therein; provided, however, that the obligation to indemnify shall be several, not joint and several, among such Holders of Registrable Securities, and the liability of each such Holder of Registrable Securities shall be in proportion to and limited to the net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Registration Statement. The Holders of Registrable Securities shall indemnify the Underwriters, their officers, directors and each Person person or entity who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to indemnification of the Company, and the Company shall use its commercially reasonable efforts to ensure that no Underwriter shall require any Holder of Registrable Securities to provide any indemnification other than that provided hereinabove in this Section 4.1.2, and if, despite the Company’s commercially reasonable efforts, an Underwriter requires any Holder of Registrable Securities to provide additional indemnification, such Holder may elect not to participate in such Underwritten Offering (but shall not have any claim against the Company as a result of such election).
4.1. 3Any Person person or entity entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any Personperson’s or entity’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a conflict or potential conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the prior written consent of the Indemnified Partyindemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) and or which settlement includes a statement or admission of fault or and culpability on the part of such Indemnified Party indemnified party or which settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party indemnified party of a release from all liability in respect to such claim or litigation.
4.1. 4The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the Indemnified Party indemnified party or any officer, director, partner, stockholder, member director or controlling Person person or entity of such Indemnified Party indemnified party and shall survive the transfer of securities. The Company and each Holder of Registrable SecuritiesSecurities participating in an offering also agrees to make such provisions as are reasonably requested by any indemnified party for contribution to such party in the event the Company’s or such ▇▇▇▇▇▇’s indemnification is unavailable for any reason.
4.1. 5If the indemnification provided under Section 4.1 hereof from the indemnifying party is unavailable or insufficient to hold harmless an Indemnified Party indemnified party in respect of any Loss losses, claims, damages, liabilities and out-of-pocket expenses referred to herein, then such the indemnifying party, in lieu of indemnifying the Indemnified Partyindemnified party, shall contribute to the amount paid or payable by such Indemnified Party the indemnified party as a result of such Loss losses, claims, damages, liabilities and out-of-pocket expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the Indemnified Partyindemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party or parties on the one hand and the Indemnified Party or parties on the other hand in connection with the statements or omissions that resulted in such Loss indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by (or not made by, in the case of an omission), or relates to information supplied byby (or not supplied by in the case of an omission), such indemnifying party or the Indemnified Partyindemnified party, and the parties’ indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action; provided, however, that the liability of any Holder or any director, officer or controlling person thereof under this subsection Section 4.1.5 shall be limited to the amount of the net proceeds received by such Holder in such offering giving rise to such liability. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in subsections Sections 4.1.1, 4.1.2 and 4.1.3 above, any legal or other fees, charges or out-of-pocket expenses reasonably incurred by such party in connection with any investigation or proceedingsproceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this subsection Section 4.1.5 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 this subsection Section 4.1.5. No person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) as determined by a final, non-appealable judgment of a court of competent jurisdiction shall be entitled to contribution pursuant to this subsection Section 4.1.5 from any person or entity who was not guilty of such fraudulent misrepresentation.
Appears in 1 contract
Sources: Registration Rights Agreement (Embark Technology, Inc.)