Common use of Contribution in Lieu of Indemnity Clause in Contracts

Contribution in Lieu of Indemnity. If the indemnification provided for in this Section 5.5 is unavailable to or insufficient to hold harmless an indemnified party under Section 5.5.1 or 5.5.2 above in respect of any losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as result of such losses, claims, damages or liabilities (or actions in respect thereof) based on the relative fault of the indemnifying party and the indemnified party as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or a Holder on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 5.5.4 were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 5.5.4. The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5.5.4 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5.5.4, no Holder shall be required to contribute any amount in excess of the net amount received by the Holder from the sale of the Registrable Securities to which such loss relates. No person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ obligations in this Section 5.5.4 to contribute are several in proportion to their respective sales of Registrable Securities to which such loss relates and not joint.

Contribution in Lieu of Indemnity. If the indemnification provided for in this Section 5.5 5.4 is unavailable to or insufficient to hold harmless an indemnified party under Section 5.5.1 5.4.1 or 5.5.2 5.4.2 above in respect of any losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as result of such losses, claims, damages or liabilities (or actions in respect thereof) based on the relative fault of the indemnifying party and the indemnified party ), as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or a Holder on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 5.5.4 5.4.4 were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 5.5.45.4.4. The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5.5.4 5.4.4 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5.5.45.4.4, no Holder shall be required to contribute any amount in excess of the net amount received by the Holder from the sale of the Registrable Securities to which such loss relates. No person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f11 (f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ obligations in this Section 5.5.4 5.4.4 to contribute are several in proportion to their respective sales of Registrable Securities to which such loss relates and not joint.

Contribution in Lieu of Indemnity. If the indemnification --------------------------------- provided for in this Section 5.5 5.4 is unavailable to or insufficient to hold harmless an indemnified party under Section 5.5.1 5.4.1 or 5.5.2 5.4.2 above in respect of any losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as result of such losses, claims, damages or liabilities (or actions in respect thereof) based on the relative fault of the indemnifying party and the indemnified party ), as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or a Holder on the other and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 5.5.4 5.4.4 were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 5.5.45.4.4. The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5.5.4 5.4.4 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5.5.45.4.4, no Holder shall be required to contribute any amount in excess of the net amount received by the Holder from the sale of the Registrable Securities to which such loss relates. No person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f11 (f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ ' obligations in this Section 5.5.4 5.4.4 to contribute are several in proportion to their respective sales of Registrable Securities to which such loss relates and not joint.

Contribution in Lieu of Indemnity. If To provide for just and equitable contribution to joint liability under the Securities Act in any case in which either (i) any party otherwise entitled to indemnification provided hereunder makes a claim for in indemnification pursuant to this Section 5.5 2.8 but it is unavailable judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or insufficient to hold harmless an indemnified party the denial of the last right of appeal) that such indemnification may not be enforced in such case, notwithstanding the fact that this Section 2.8 provides for indemnification in such case, or (ii) contribution under Section 5.5.1 or 5.5.2 above in respect the Securities Act may be required on the part of any lossesparty hereto for which indemnification is provided under this Section 2.8, claimsthen, damages or liabilities (or actions or proceedings and in respect thereof) referred to thereineach such case, then each indemnifying party shall such parties will contribute to the amount paid or payable by aggregate Damages to which they may be subject (after contribution from others) in such indemnified party proportion as result of such losses, claims, damages or liabilities (or actions in respect thereof) based on is appropriate to reflect the relative fault of each of the indemnifying party and the indemnified party in connection with the statements, omissions, or other actions that resulted in such Damage, as well as to reflect any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the untrue or alleged allegedly untrue statement of a material fact fact, or the omission or alleged omission to state of a material fact fact, relates to information supplied by the Company on indemnifying party or by the one hand or a Holder on the other indemnified party and the parties’ relative intent, knowledge, access to information information, and opportunity to correct or prevent such statement or omission. The Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 5.5.4 were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above ; provided, however, that, in this Section 5.5.4. The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5.5.4 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5.5.4case, (x) no Holder shall will be required to contribute any amount in excess of the net amount received by the Holder from the sale public offering price of the all such Registrable Securities offered and sold by such Holder pursuant to which such loss relates. No person or entity registration statement, and (y) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall will be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation. The Holders’ obligations ; and provided further that in no event shall a Holder’s liability pursuant to this Section 5.5.4 2.8(d), when combined with the amounts paid or payable by such Holder pursuant to contribute are several Section 2.8(b), exceed the proceeds from the offering received by such Holder (net of any Selling Expenses paid by such Holder), except in proportion to their respective sales the case of Registrable Securities to which willful misconduct or fraud by such loss relates and not jointHolder.

Contribution in Lieu of Indemnity. If the indemnification provided for in this Section 5.5 18 is unavailable to or insufficient to hold harmless an indemnified party under Section 5.5.1 18(a) or 5.5.2 18(b) above in respect of any losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) based on the relative fault of the indemnifying party and the indemnified party as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or a the Holder on the other and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Holders Holder agree that it would not be just and equitable if contribution pursuant to this Section 5.5.4 18(d) were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 5.5.418(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5.5.4 18(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5.5.418(d), no the Holder shall not be required to contribute any amount in excess of the net amount received by the Holder from the sale of the Registrable Securities to which such loss relates. No person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ obligations in this Section 5.5.4 to contribute are several in proportion to their respective sales of Registrable Securities to which such loss relates and not joint.

Contribution in Lieu of Indemnity. If the indemnification provided for in this Section 5.5 6(b) is unavailable to or insufficient to hold harmless an indemnified party under Section 5.5.1 6(b)(i) or 5.5.2 6(b)(ii) above in respect of any losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) based on in such proportion as is appropriate to reflect the relative benefit and relative fault of the indemnifying party and the indemnified party respective parties as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or a Holder Xxxxx on the other and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Holders Xxxxx agree that it would not be just and equitable if contribution pursuant to this Section 5.5.4 6(b)(iv) were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 5.5.46(b)(iv). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5.5.4 6(b)(iv) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5.5.46(b)(iv), no Holder Xxxxx shall not be required to contribute any amount in excess of the net amount received by the Holder Xxxxx from the sale of the Registrable Securities to which such loss relates. No person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ obligations in this Section 5.5.4 to contribute are several in proportion to their respective sales of Registrable Securities to which such loss relates and not joint.

Contribution in Lieu of Indemnity. If the indemnification provided for in this Section 5.5 5.4 is unavailable to or insufficient to hold harmless an indemnified party under Section 5.5.1 5.4.1 or 5.5.2 5.4.2 above in respect of any losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) ), as well as any other relevant equitable considerations based on the relative fault of the indemnifying party and the indemnified party as well as any other relevant equitable considerationsparties. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or a Holder on the other and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionOmission. The Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 5.5.4 5.4.4 were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 5.5.45.4.4. The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5.5.4 5.4.4 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5.5.45.4.4, no Holder shall be required to contribute any amount in excess of the net amount received by the Holder from the sale of the Registrable Securities to which such loss relates. No person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ ' obligations in this Section 5.5.4 5.4.4 to contribute are several in proportion to their respective sales of Registrable Securities to which such loss relates and not joint.

Contribution in Lieu of Indemnity. If the indemnification provided for in this Section 5.5 19(b) is unavailable to or insufficient to hold harmless an indemnified party under Section 5.5.1 19(b)(i) or 5.5.2 19(b)(ii) above in respect of any losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to therein, then each the indemnifying party shall contribute to the amount paid or payable by such indemnified party as result of such losses, claims, damages or liabilities (or actions in respect thereof) based on the relative fault of the indemnifying party and the indemnified party ), as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or a Holder on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Holders Holder agree that it would not be just and equitable if contribution pursuant to this Section 5.5.4 19(b)(iv) were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 5.5.4. 19(b)(iv) The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5.5.4 19(b)(iv) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5.5.419(b)(iv), no Holder shall not be required to contribute any amount in excess of the net amount received by the Holder from the sale of the Registrable Securities Warrant Shares to which such loss relates. No person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f11 (f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ Holder’s obligations in this Section 5.5.4 19(b)(iv) to contribute are several in proportion to their respective sales of Registrable Securities Warrant Shares to which such loss relates and not joint.

Contribution in Lieu of Indemnity. If the indemnification provided for in this Section 5.5 5.4 is unavailable to or insufficient to hold harmless an indemnified party under Section 5.5.1 5.4.1 or 5.5.2 5.4.2 above in respect of any losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as result of such losses, claims, damages or liabilities (or actions in respect thereof) based on the relative fault of the indemnifying party and the indemnified party ), as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or a Holder on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 5.5.4 5.4.4 were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 5.5.45.4.4. The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5.5.4 5.4.4 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5.5.45.4.4, no Holder shall be required to contribute any amount in excess of the net amount received by the Holder from the sale of the Registrable Securities to which such loss relates. No person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f11 (f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ obligations in this Section 5.5.4 5.4.4 to contribute are several in proportion to their respective sales of Registrable Securities to which such loss relates and not joint. Notwithstanding any other provision of this Section 7.4.4, in no event shall any Investor be required to undertake liability to any person under this Section 7.4.4 for any amounts in excess of the net proceeds received by such Investor from the sale of such Investor’s Registrable Securities pursuant to a Registration Statement.

Contribution in Lieu of Indemnity. If the indemnification provided for in this Section 5.5 5.4 is unavailable to or insufficient to hold harmless an indemnified party under Section 5.5.1 5.4.1 or 5.5.2 5.4.2 above in respect of any losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as result of such losses, claims, damages or liabilities (or actions in respect thereof) based on the relative fault of the indemnifying party and the indemnified party as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or a Holder on the other and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 5.5.4 5.4.4 were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 5.5.45.4.4. The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5.5.4 5.4.4 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5.5.45.4.4, no Holder shall be required to contribute any amount in excess of the net amount received by the Holder from the sale of the Registrable Securities to which such loss relates. No person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ ' obligations in this Section 5.5.4 5.4.4 to contribute are several in proportion to their respective sales of Registrable Securities to which such loss relates and not joint.

Contribution in Lieu of Indemnity. If the indemnification provided for in this Section 5.5 5.4 is unavailable to or insufficient to hold harmless an indemnified party under Section 5.5.1 5.4.1 or 5.5.2 5.4.2 above in respect of any losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as result of such losses, claims, damages or liabilities (or actions in respect thereof) based on the relative fault of the indemnifying party and the indemnified party ), as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or a Holder on the other and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 5.5.4 5.4.4 were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 5.5.45.4.4. The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5.5.4 5.4.4 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5.5.45.4.4, no Holder shall be required to contribute any amount in excess of the net amount received by the Holder from the sale of the Registrable Securities to which such loss relates. No person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ ' obligations in this Section 5.5.4 5.4.4 to contribute are several in proportion to their respective sales of Registrable Securities to which such loss relates and not joint.

Contribution in Lieu of Indemnity. If the indemnification provided for in this Section 5.5 6.10 is unavailable to or insufficient to hold harmless an indemnified party under Section 5.5.1 6.10(a) or 5.5.2 6.10(b) above in respect of any losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as result of such losses, claims, damages or liabilities (or actions in respect thereof) based on the relative fault of the indemnifying party and the indemnified party ), as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company Purchaser on the one hand or a Holder on the other and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company Purchaser and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 5.5.4 6.10(d) were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 5.5.46.10(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5.5.4 6.10(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5.5.46.10(d), no - 28 - Holder shall be required to contribute any amount in excess of the net amount received by the Holder from the sale of the Registrable Securities to which such loss relates. No person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ ' obligations in this Section 5.5.4 6.10(d) to contribute are several in proportion to their respective sales of Registrable Securities to which such loss relates and not joint.