Common use of Due Diligence Indemnification Clause in Contracts

Due Diligence Indemnification. (a) In connection with the preparation and filing of any prospectus in connection with a Piggyback Registration as herein contemplated, the Company will give the Investor, the underwriter or underwriters of such Distribution, if any, and their respective counsel, auditors and other representatives, the opportunity to fully participate in the preparation of such documents and each amendment thereof or supplement thereto, and will insert therein such material furnished to the Company in writing, which in the reasonable judgment of the Company and its counsel should be included, and will give each of them such reasonable and customary access to the Company's books and records and such reasonable and customary opportunity to discuss the business of the Company with its officers and auditors, and to conduct all reasonable and customary due diligence which the Investor and the underwriters or underwriter, if any, and their respective counsel may reasonably require in order to conduct a reasonable investigation in order to enable such underwriters to execute any certificate required to be executed by them in Canada for inclusion in such documents, provided that the Investor and the underwriters agree to maintain the confidentiality of such information. (b) In connection with any Piggyback Registration, the Company will indemnify and hold harmless the Investor and its Affiliates and each of their respective directors, officers, employees and agents, shareholders, limited partners and underwriters, from and against any loss (excluding loss of profits), liability, claim, damage and expense whatsoever (including reasonable legal fees and expenses), including any amounts paid in settlement of any investigation, order, litigation, proceeding or claim, joint or several, incurred, arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in any prospectus, or any amendment or supplement thereto, including all documents incorporated therein by reference, or any omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or as incurred, arising out of or based upon any failure to comply with Applicable Securities Laws (other than any failure to comply with Applicable Securities Laws by the Investor); provided that the Company will not be liable under this Section 1.6(b) of this Schedule "A" for any settlement of any action effected without its written consent, which consent will not be unreasonably withheld or delayed; provided further that the indemnity provided for in this Section 1.6(b) of this Schedule "A" in respect of the Investor will not apply to any loss, liability, claim, damage or expense to the extent incurred, arising out of or based upon any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by the Investor stating that such information is being provided for use in the prospectus. (c) In connection with any Piggyback Registration, the Investor will indemnify and hold harmless the Company and each of its directors, officers, employees, agents and shareholders from and against any loss (excluding loss of profits), liability, claim, damage and expense whatsoever (including reasonable legal fees and expenses), including any amounts paid in settlement of any investigation, order, litigation, proceeding or claim, joint or several, as incurred, arising out of or based on any untrue statement or omission of a material fact, or alleged untrue statement or omission of a material fact, made or required to be made in the prospectus, as applicable, included in reliance upon and in conformity with written information furnished to the Company by the Investor about the Investor or its ownership of Qualifying Securities, stating that such information is being provided for use in the prospectus or as incurred arising out of or based upon any failure to comply with Applicable Securities Laws (other than any failure to comply with Applicable Securities Laws by the Company), including, for greater certainty, for any amounts paid pursuant to Section 1.6(b) of this Schedule "A"; provided that the Investor will not be liable under this Section 1.6(c) of this Schedule "A" for any settlement of any action effected without its written consent, which consent will not be unreasonably withheld or delayed; provided further that the indemnity provided for in this Section 1.6(c) of this Schedule "A" will not apply to any loss, liability, claim, damage or expense to the extent arising out of an untrue statement or omission or alleged untrue statement or omission contained in any prospectus relating to a Piggyback Registration if the Company or any underwriter failed to send or deliver a copy of the prospectus to the Person asserting such losses, liabilities, claims, damages or expenses on or prior to the delivery of written confirmation of any sale of securities covered thereby to such Person in any case where such prospectus corrected such untrue statement or omission; provided, further that in no event will the Investor be liable for indemnification or contribution for an amount greater than the lesser of: (i) the net sales proceeds actually received by the Investor; and (ii) the Investor's proportionate share of any such liability based on the net sales proceeds actually received by the Investor and the aggregate net sales proceeds of the Distribution. (d) Each party entitled to indemnification under this Section 1.6 of this Schedule "A" (the "Specified Indemnified Party") will give written notice to the party required to provide indemnification (the "Specified Indemnifying Party") promptly after such Specified Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and will permit the Specified Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Specified Indemnifying Party, who will conduct the defense of such claim or litigation, will be approved by the Specified Indemnified Party (whose approval will not be unreasonably withheld), and the Specified Indemnified Party may participate in such defense at such party's expense, and provided further that the failure of any Specified Indemnified Party to give notice as provided herein will not relieve the Specified Indemnifying Party of its obligations under this Section 1.6 of this Schedule "A" unless the failure to give such notice is materially prejudicial to a Specified Indemnifying Party's ability to defend such action. A Specified Indemnified Party will have the right to retain its own counsel, with fees and expenses to be paid by the Specified Indemnifying Party, if representation of such Specified Indemnified Party by the counsel retained by the Specified Indemnifying Party would be inappropriate due to actual or potential conflicting interests between such Specified Indemnified Party and any other party represented by such counsel in such proceeding. No Specified Indemnifying Party, in the defense of any such claim or litigation, will, except with the consent of each Specified Indemnified Party, consent to entry of any judgment or enter into any settlement unless such settlement includes as an unconditional term thereof: (i) the giving by the claimant or plaintiff to such Specified Indemnified Party of a release from all liability in respect to such claim or litigation; (ii) no admission on the part of the Specified Indemnified Party that it violated any Law or infringed the rights of any person; and (iii) provides as the claimant's or plaintiff's sole relief monetary damages (that are paid in full by the Specified Indemnifying Party). (e) If the indemnification provided for in this Section 1.6 of this Schedule "A" is held by a court of competent jurisdiction to be unavailable to a Specified Indemnified Party with respect to any loss, liability, claim, damage, or expense referred to therein, then the Specified Indemnifying Party, in lieu of indemnifying such Specified Indemnified Party hereunder, will contribute to the amount paid or payable by such Specified Indemnified Party as a result of such loss, liability, claim, damage, or expense in such proportion as is appropriate to reflect the relative fault of the Specified Indemnifying Party on the one hand and of the Specified Indemnified Party on the other in connection with the statements or omissions that resulted in such loss, liability, claim, damage, or expense as well as any other relevant equitable considerations, provided, however, that the liability of the Investor under this Section 1.6(e) of this Schedule "A" will not exceed the lesser of: (i) the net sales proceeds actually received by the Investor; and (ii) the Investor's proportionate share of any such liability based on the net sales proceeds actually received by the Investor and the aggregate net sales proceeds of the Distribution. The relative fault of the Specified Indemnifying Party and of the Specified Indemnified Party will be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the Specified Indemnifying Party or by the Specified Indemnified Party and the parties' relative intent with respect to, knowledge regarding and opportunity to correct, such information. No Person guilty of fraudulent misrepresentation will be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.

Due Diligence Indemnification. (a) In connection with the preparation and filing of any prospectus in connection with a Piggyback Registration as herein contemplated, the Company will give the Investor, the underwriter or underwriters of such Distribution, if any, and their respective counsel, auditors and other representatives, the opportunity to fully participate in the preparation of such documents and each amendment thereof or supplement thereto, and will insert therein such material furnished to the Company in writing, which in the reasonable judgment of the Company and its counsel should be included, and will give each of them such reasonable and customary access to the Company's ’s books and records and such reasonable and customary opportunity to discuss the business of the Company with its officers and auditors, and to conduct all reasonable and customary due diligence which the Investor and the underwriters or underwriter, if any, and their respective counsel may reasonably require in order to conduct a reasonable investigation in order to enable such underwriters to execute any certificate required to be executed by them in Canada for inclusion in such documents, provided that the Investor and the underwriters agree to maintain the confidentiality of such information. (b) In connection with any Piggyback Registration, the Company will indemnify and hold harmless the Investor and its Affiliates and each of their respective directors, officers, employees and agents, shareholders, limited partners and underwriters, from and against any loss (excluding loss of profits), liability, claim, damage and expense whatsoever (including reasonable legal fees and expenses), including any amounts paid in settlement of any investigation, order, litigation, proceeding or claim, joint or several, incurred, arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in any prospectus, or any amendment or supplement thereto, including all documents incorporated therein by reference, or any omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or as incurred, arising out of or based upon any failure to comply with Applicable Securities Laws (other than any failure to comply with Applicable Securities Laws by the Investor); provided that the Company will not be liable under this Section 1.6(b) of this Schedule "“A" ” for any settlement of any action effected without its written consent, which consent will not be unreasonably withheld or delayed; provided further that the indemnity provided for in this Section 1.6(b) of this Schedule "“A" ” in respect of the Investor will not apply to any loss, liability, claim, damage or expense to the extent incurred, arising out of or based upon any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by the Investor stating that such information is being provided for use in the prospectus. (c) In connection with any Piggyback Registration, the Investor will indemnify and hold harmless the Company and each of its directors, officers, employees, agents and shareholders from and against any loss (excluding loss of profits), liability, claim, damage and expense whatsoever (including reasonable legal fees and expenses), including any amounts paid in settlement of any investigation, order, litigation, proceeding or claim, joint or several, as incurred, arising out of or based on any untrue statement or omission of a material fact, or alleged untrue statement or omission of a material fact, made or required to be made in the prospectus, as applicable, included in reliance upon and in conformity with written information furnished to the Company by the Investor about the Investor or its ownership of Qualifying SecuritiesInvestor, stating that such information is being provided for use in the prospectus or as incurred arising out of or based upon any failure to comply with Applicable Securities Laws (other than any failure to comply with Applicable Securities Laws by the Company), including, for greater certainty, for any amounts paid pursuant to Section 1.6(b) of this Schedule "“A"”; provided that the Investor will not be liable under this Section 1.6(c) of this Schedule "“A" ” for any settlement of any action effected without its written consent, which consent will not be unreasonably withheld or delayed; provided further that the indemnity provided for in this Section 1.6(c) of this Schedule "“A" ” will not apply to any loss, liability, claim, damage or expense to the extent arising out of an untrue statement or omission or alleged untrue statement or omission contained in any prospectus relating to a Piggyback Registration if the Company or any underwriter failed to send or deliver a copy of the prospectus to the Person asserting such losses, liabilities, claims, damages or expenses on or prior to the delivery of written confirmation of any sale of securities covered thereby to such Person in any case where such prospectus corrected such untrue statement or omission; provided, further that in no event will the Investor be liable for indemnification or contribution for an amount greater than the lesser of: (i) the net sales proceeds actually received by the Investor; and (ii) the Investor's ’s proportionate share of any such liability based on the net sales proceeds actually received by the Investor and the aggregate net sales proceeds of the Distribution. (d) Each party entitled to indemnification under this Section 1.6 of this Schedule "“A" ” (the "“Specified Indemnified Party"”) will give written notice to the party required to provide indemnification (the "“Specified Indemnifying Party"”) promptly after such Specified Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and will permit the Specified Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Specified Indemnifying Party, who will conduct the defense of such claim or litigation, will be approved by the Specified Indemnified Party (whose approval will not be unreasonably withheld), and the Specified Indemnified Party may participate in such defense at such party's ’s expense, and provided further that the failure of any Specified Indemnified Party to give notice as provided herein will not relieve the Specified Indemnifying Party of its obligations under this Section 1.6 of this Schedule "“A" ” unless the failure to give such notice is materially prejudicial to a Specified Indemnifying Party's ’s ability to defend such action. A Specified Indemnified Party will have the right to retain its own counsel, with fees and expenses to be paid by the Specified Indemnifying Party, if representation of such Specified Indemnified Party by the counsel retained by the Specified Indemnifying Party would be inappropriate due to actual or potential conflicting interests between such Specified Indemnified Party and any other party represented by such counsel in such proceeding. No Specified Indemnifying Party, in the defense of any such claim or litigation, will, except with the consent of each Specified Indemnified Party, consent to entry of any judgment or enter into any settlement unless such settlement includes as an unconditional term thereof: (i) the giving by the claimant or plaintiff to such Specified Indemnified Party of a release from all liability in respect to such claim or litigation; (ii) no admission on the part of the Specified Indemnified Party that it violated any Law or infringed the rights of any person; and (iii) provides as the claimant's ’s or plaintiff's ’s sole relief monetary damages (that are paid in full by the Specified Indemnifying Party). (e) If the indemnification provided for in this Section 1.6 of this Schedule "“A" ” is held by a court of competent jurisdiction to be unavailable to a Specified Indemnified Party with respect to any loss, liability, claim, damage, or expense referred to therein, then the Specified Indemnifying Party, in lieu of indemnifying such Specified Indemnified Party hereunder, will contribute to the amount paid or payable by such Specified Indemnified Party as a result of such loss, liability, claim, damage, or expense in such proportion as is appropriate to reflect the relative fault of the Specified Indemnifying Party on the one hand and of the Specified Indemnified Party on the other in connection with the statements or omissions that resulted in such loss, liability, claim, damage, or expense as well as any other relevant equitable considerations, provided, however, that the liability of the Investor under this Section 1.6(e) of this Schedule "“A" ” will not exceed the lesser of: (i) the net sales proceeds actually received by the Investor; and (ii) the Investor's ’s proportionate share of any such liability based on the net sales proceeds actually received by the Investor and the aggregate net sales proceeds of the Distribution. The relative fault of the Specified Indemnifying Party and of the Specified Indemnified Party will be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the Specified Indemnifying Party or by the Specified Indemnified Party and the parties' ’ relative intent with respect to, knowledge regarding and opportunity to correct, such information. No Person guilty of fraudulent misrepresentation will be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.

Due Diligence Indemnification. (a) In connection with the preparation and filing of any prospectus Prospectus in connection with a Piggyback Registration as herein contemplated, the Company Corporation will give the InvestorMDCI, the underwriter or underwriters of such Distribution, if any, and their respective counsel, auditors and other representatives, the opportunity to fully participate in the preparation of such documents and each amendment thereof or supplement thereto, and will insert therein such material furnished to the Company Corporation in writing, which in the reasonable judgment of the Company Corporation and its counsel should be included, and will give each of them such reasonable and customary access to the Company's Corporation’s books and records and such reasonable and customary opportunity to discuss the business of the Company Corporation with its officers and auditors, and to conduct all reasonable and customary due diligence which the Investor MDCI and the underwriters or underwriter, if any, and their respective counsel may reasonably require in order to conduct a reasonable investigation in order to enable such underwriters to execute any certificate required to be executed by them in Canada for inclusion in such documents, provided that the Investor MDCI and the underwriters agree to maintain the confidentiality of such information. (b) In connection with any Piggyback Registration, the Company Corporation will indemnify and hold harmless the Investor MDCI and its Affiliates and each of their respective directors, officers, employees and agents, shareholders, limited partners and underwriters, from and against any loss (excluding loss of profits), liability, claim, damage and expense whatsoever (including reasonable legal fees and expenses), including any amounts paid in settlement of any investigation, order, litigation, proceeding or claim, joint or several, incurred, arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in any prospectusProspectus, or any amendment or supplement thereto, including all documents incorporated therein by reference, or any omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or as incurred, arising out of or based upon any failure to comply with Applicable Canadian Securities Laws (other than any failure to comply with Applicable Securities Laws by the Investor)Laws; provided that the Company Corporation will not be liable under this Section 1.6(b6(b) of this Schedule "A" A for any settlement of any action effected without its written consent, which consent will not be unreasonably withheld or delayed; provided further that the indemnity provided for in this Section 1.6(b6(b) of this Schedule "A" A in respect of the Investor MDCI will not apply to any loss, liability, claim, damage or expense to the extent incurred, arising out of or based upon any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company Corporation by the Investor MDCI or underwriter stating that such information is being provided for use in the prospectusProspectus. (c) In connection with any Piggyback Registration, the Investor MDCI will indemnify and hold harmless the Company Corporation and each of its directors, officers, employees, agents and shareholders from and against any loss (excluding loss of profits), liability, claim, damage and expense whatsoever (including reasonable legal fees and expenses), including any amounts paid in settlement of any investigation, order, litigation, proceeding or claim, joint or several, as incurred, arising out of or based on any untrue statement or omission of a material fact, or alleged untrue statement or omission of a material fact, made or required to be made in the prospectusProspectus, as applicable, included in reliance upon and in conformity with written information furnished to the Company Corporation by the Investor about the Investor or its ownership of Qualifying SecuritiesMDCI, stating that such information is being provided for use in the prospectus or as incurred arising out of or based upon any failure to comply with Applicable Securities Laws (other than any failure to comply with Applicable Securities Laws by the Company), including, for greater certainty, for any amounts paid pursuant to Section 1.6(b) of this Schedule "A"Prospectus; provided that the Investor MDCI will not be liable under this Section 1.6(c6(c) of this Schedule "A" A for any settlement of any action effected without its written consent, which consent will not be unreasonably withheld or delayed; provided further that the indemnity provided for in this Section 1.6(c6(c) of this Schedule "A" A will not apply to any loss, liability, claim, damage or expense to the extent arising out of an untrue statement or omission or alleged untrue statement or omission contained in any prospectus Prospectus relating to a Piggyback Registration if the Company Corporation or any underwriter failed to send or deliver a copy of the prospectus Prospectus to the Person asserting such losses, liabilities, claims, damages or expenses on or prior to the delivery of written confirmation of any sale of securities covered thereby to such Person in any case where such prospectus Prospectus corrected such untrue statement or omission; provided, further that in no event will the Investor MDCI be liable for indemnification or contribution for an amount greater than the lesser of: (i) the net sales proceeds actually received by the InvestorMDCI; and (ii) the Investor's MDCI’s proportionate share of any such liability based on the net sales proceeds actually received by the Investor MDCI and the aggregate net sales proceeds of the Distribution. (d) Each party entitled to indemnification under this Section 1.6 6(c) of this Schedule "A" A (the "“Specified Indemnified Party"”) will give written notice to the party required to provide indemnification (the "“Specified Indemnifying Party"”) promptly after such Specified Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and will permit the Specified Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Specified Indemnifying Party, who will conduct the defense of such claim or litigation, will be approved by the Specified Indemnified Party (whose approval will not be unreasonably withheld), and the Specified Indemnified Party may participate in such defense at such party's ’s expense, and provided further that the failure of any Specified Indemnified Party to give notice as provided herein will not relieve the Specified Indemnifying Party of its obligations under this Section 1.6 6 of this Schedule "A" “A unless the failure to give such notice is materially prejudicial to a Specified Indemnifying Party's ’s ability to defend such action. A Specified Indemnified Party will have the right to retain its own counsel, with fees and expenses to be paid by the Specified Indemnifying Party, if representation of such Specified Indemnified Party by the counsel retained by the Specified Indemnifying Party would be inappropriate due to actual or potential conflicting interests between such Specified Indemnified Party and any other party represented by such counsel in such proceeding. No Specified Indemnifying Party, in the defense of any such claim or litigation, will, except with the consent of each Specified Indemnified Party, consent to entry of any judgment or enter into any settlement unless such settlement includes as an unconditional term thereof: (i) the giving by the claimant or plaintiff to such Specified Indemnified Party of a release from all liability in respect to such claim or litigation; (ii) no admission on the part of the Specified Indemnified Party that it violated any Law law or infringed the rights of any person; and (iii) provides as the claimant's ’s or plaintiff's ’s sole relief monetary damages (that are paid in full by the Specified Indemnifying Party). (e) If the indemnification provided for in this Section 1.6 6 of this Schedule "A" A is held by a court of competent jurisdiction to be unavailable to a Specified Indemnified Party with respect to any loss, liability, claim, damage, or expense referred to therein, then the Specified Indemnifying Party, in lieu of indemnifying such Specified Indemnified Party hereunder, will contribute to the amount paid or payable by such Specified Indemnified Party as a result of such loss, liability, claim, damage, or expense in such proportion as is appropriate to reflect the relative fault of the Specified Indemnifying Party on the one hand and of the Specified Indemnified Party on the other in connection with the statements or omissions that resulted in such loss, liability, claim, damage, or expense as well as any other relevant equitable considerations, provided, however, that the liability of the Investor MDCI under this Section 1.6(e6(e) of this Schedule "A" A will not exceed the lesser of: (i) the net sales proceeds actually received by the InvestorMDCI; and (ii) the Investor's MDCI’s proportionate share of any such liability based on the net sales proceeds actually received by the Investor MDCI and the aggregate net sales proceeds of the Distribution. The relative fault of the Specified Indemnifying Party and of the Specified Indemnified Party will be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the Specified Indemnifying Party or by the Specified Indemnified Party and the parties' ’ relative intent with respect to, knowledge regarding and opportunity to correct, such information. No Person person guilty of fraudulent misrepresentation will be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.