Highly Confidential. ANNEX B In further consideration of the agreements contained in the Agreement of which this Annex B is a part, the Company agrees to indemnify and hold harmless Jxxxxx Xxxxxx, its affiliates, the respective members, directors, officers, partners, agents and employees of Jxxxxx Xxxxxx, and any person controlling Jxxxxx Xxxxxx or any of its affiliates (collectively, “Indemnified Persons”) from and against, and the Company agrees that no Indemnified Person shall have any liability to the Company or its owners, parents, affiliates, security holders or creditors for, any losses, claims, damages or liabilities (including actions or proceedings in respect thereof) (collectively, “Liabilities”) (A) related to or arising out of (i) the Company’s actions or failures to act (including statements or omissions made or information provided by the Company or its agents) in connection with the Transaction or (ii) actions or failures to act by an Indemnified Person with the Company’s consent or in reliance on the Company’s actions or failures to act in connection with the Transaction or (B) otherwise related to or arising out of the Agreement, Jxxxxx Xxxxxx’x performance thereof or any other services Jxxxxx Xxxxxx is asked to provide to the Company (in each case, including related activities prior to the date hereof), except that this clause (B) shall not apply to any Liabilities to the extent that they are finally determined by a court of competent jurisdiction to have resulted primarily from the gross negligence, fraud or willful misconduct of such Indemnified Person. If such indemnification is for any reason not available or insufficient to hold an Indemnified Person harmless, the Company agrees to contribute to the Liabilities involved in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and by Jxxxxx Xxxxxx, on the other hand, in respect of the Agreement or, if such allocation is determined by a court of competent jurisdiction to be unavailable, in such proportion as is appropriate to reflect other equitable considerations such as the relative fault of the Company on the one hand and of Jxxxxx Xxxxxx on the other hand; provided, however, that, to the extent permitted by applicable law, the Indemnified Persons shall not be responsible for expenses and Liabilities which in the aggregate are in excess of the amount of all fees actually received by Jxxxxx Xxxxxx from the Company pursuant to the Agreement. Relative benefits to the Company, on the one hand, and Jxxxxx Xxxxxx, on the other hand, in respect of the Agreement shall be deemed to be in the same proportion as (i) the total value received or proposed to be received by the Indemnifying Parties in connection with any financing contemplated by the Agreement, bears to (ii) all fees actually received by or committed to Jxxxxx Xxxxxx in connection with the Agreement.
Appears in 2 contracts
Samples: Confidential (Akoustis Technologies, Inc.), Confidential (Akoustis Technologies, Inc.)
Highly Confidential. ANNEX B In further consideration of the agreements contained in the Agreement of which this Annex B is a part, the The Company agrees represents and warrants to indemnify and hold harmless Jxxxxx Xxxxxx, its affiliates, the respective members, directors, officers, partners, agents and employees of Jxxxxx Xxxxxx, and any person controlling Jxxxxx Xxxxxx or any of its affiliates (collectively, “Indemnified Persons”) from and against, and the Company agrees that no Indemnified Person shall have any liability all Information relating to the Company or its owners, parents, affiliates, security holders or creditors for, any losses, claims, damages or liabilities (including actions or proceedings which the Company provides in respect thereof) writing (collectively, the “LiabilitiesMaterials”) (A) related will be materially complete and correct. The Company further represents and warrants that any projections provided by it to or arising out Jxxxxx Xxxxxx will have been prepared in good faith and will be based upon assumptions, which, in light of the circumstances under which they are made, are reasonable. The Company recognizes and confirms that Jxxxxx Xxxxxx (i) will use and rely primarily on the Company’s actions or failures to act (including statements or omissions made or Materials and on information provided available from generally recognized public sources in performing the services contemplated by this Agreement without having independently verified the Company or its agents) in connection with the Transaction or same; (ii) actions is authorized to transmit to any prospective investor the Materials and other legal documentation supplied to Jxxxxx Xxxxxx for transmission to parties that have entered into a customary form of confidentiality agreement (including a “click-through” on a secure website) by or failures on behalf of the Company; (iii) does not assume responsibility for the accuracy or completeness of the Materials and such other information; (iv) will not make an appraisal of the Company; and (v) retains the right to continue to perform due diligence during the course of its engagement hereunder to the extent that it is reasonably necessary for it to perform the services contemplated hereby (it being understood that Jxxxxx Xxxxxx will not be authorized to act by as an Indemnified Person with initial purchaser or underwriter but will merely be acting as a placement agent without underwriter liability under the Company’s consent or in reliance on the Company’s actions or failures to act in Securities Act of 1933). In connection with the Transaction or (B) otherwise related to or arising out of the Agreement, Jxxxxx Xxxxxx’x performance thereof or any other services Jxxxxx Xxxxxx is asked to provide engagement, for all Transactions reasonably satisfactory to the Company (in each casethe sole discretion of the Company), it is understood and agreed that Jxxxxx Xxxxxx will manage and control all aspects of the placement of any Transaction in consultation with you, including related activities prior decisions as to the date hereofselection of prospective Investors, when commitments will be accepted and the final allocations of the commitments among the Investors (which shall be done solely with the Company’s approval). It is understood that no Investor investing in any Transaction will receive compensation from you in order to obtain its commitment, except that this clause (B) shall not apply as contemplated herein, including upfront fees paid to all Investors to ensure a successful placement of any Liabilities to the extent that they are finally determined by a court of competent jurisdiction to have resulted primarily from the gross negligenceTransaction, fraud or willful misconduct of such Indemnified Person. If such indemnification is for any reason not available or insufficient to hold an Indemnified Person harmless, the Company agrees to contribute to the Liabilities involved in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and otherwise directed by Jxxxxx Xxxxxx, on the other hand, in respect of the Agreement or, if such allocation is determined by a court of competent jurisdiction to be unavailable, in such proportion as is appropriate to reflect other equitable considerations such as the relative fault of the Company on the one hand and of Jxxxxx Xxxxxx on the other hand; provided, however, that, to the extent permitted by applicable law, the Indemnified Persons shall not be responsible for expenses and Liabilities which in the aggregate are in excess of the amount of all fees actually received by Jxxxxx Xxxxxx from the Company pursuant to the Agreement. Relative benefits to the Company, on the one hand, and Jxxxxx Xxxxxx, on the other hand, in respect of the Agreement shall be deemed to be in the same proportion as (i) the total value received or proposed to be received by the Indemnifying Parties in connection with any financing contemplated by the Agreement, bears to (ii) all fees actually received by or committed to Jxxxxx Xxxxxx in connection with the Agreement.
Appears in 2 contracts
Samples: Confidential (Akoustis Technologies, Inc.), Confidential (Akoustis Technologies, Inc.)
Highly Confidential. ANNEX B In further consideration of the agreements contained in the Agreement of which this Annex B is a part, the Company agrees to indemnify and hold harmless Jxxxxx XxxxxxDxxxxx Xxxxxxxx, its affiliates, the respective members, directors, officers, partners, agents and employees of Jxxxxx XxxxxxDxxxxx Xxxxxxxx, and any person controlling Jxxxxx Xxxxxx Dxxxxx Xxxxxxxx or any of its affiliates (collectively, “Indemnified Persons”) from and against, and the Company agrees that no Indemnified Person shall have any liability to the Company or its owners, parents, affiliates, security holders or creditors for, any losses, claims, damages or liabilities (including actions or proceedings in respect thereof) (collectively, “Liabilities”) (A) related to or arising out of (i) the Company’s actions or failures to act (including statements or omissions made or information provided by the Company or its agents) in connection with the Transaction or (ii) actions or failures to act by an Indemnified Person with the Company’s consent or in reliance on the Company’s actions or failures to act in connection with the Transaction or (B) otherwise related to or arising out of the Agreement, Jxxxxx Xxxxxx’x Dxxxxx Xxxxxxxx’x performance thereof or any other services Jxxxxx Xxxxxx Dxxxxx Xxxxxxxx is asked to provide to the Company (in each case, including related activities prior to the date hereof), except that this clause (B) shall not apply to any Liabilities to the extent that they are finally determined by a court of competent jurisdiction to have resulted primarily from the gross negligence, fraud or willful misconduct of such Indemnified Person. If such indemnification is for any reason not available or insufficient to hold an Indemnified Person harmless, the Company agrees to contribute to the Liabilities involved in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and by Jxxxxx XxxxxxDxxxxx Xxxxxxxx, on the other hand, in respect of the Agreement or, if such allocation is determined by a court of competent jurisdiction to be unavailable, in such proportion as is appropriate to reflect other equitable considerations such as the relative fault of the Company on the one hand and of Jxxxxx Xxxxxx Dxxxxx Xxxxxxxx on the other hand; provided, however, that, to the extent permitted by applicable law, the Indemnified Persons shall not be responsible for expenses and Liabilities which in the aggregate are in excess of the amount of all fees actually received by Jxxxxx Xxxxxx Dxxxxx Xxxxxxxx from the Company pursuant to the Agreement. Relative benefits to the Company, on the one hand, and Jxxxxx XxxxxxDxxxxx Xxxxxxxx, on the other hand, in respect of the Agreement shall be deemed to be in the same proportion as (i) the total value received or proposed to be received by the Indemnifying Parties in connection with any financing contemplated by the Agreement, bears to (ii) all fees actually received by or committed to Jxxxxx Xxxxxx Dxxxxx Xxxxxxxx in connection with the Agreement.
Appears in 1 contract
Highly Confidential. ANNEX B In further consideration of the agreements contained in the Agreement of which this Annex B is a partconnection with Dxxxxx Xxxxxxxx’x engagement, the Company agrees will actively assist Dxxxxx Xxxxxxxx in achieving a placement of the Transaction that is reasonably satisfactory to indemnify the Company in the Company’s sole discretion. Such assistance shall include (a) furnishing to, or causing to be furnished to, Dxxxxx Xxxxxxxx such information concerning the Company that Dxxxxx Xxxxxxxx and hold harmless Jxxxxx Xxxxxxthe Company may reasonably deem necessary or appropriate to complete such distribution (including, its affiliatesbut not limited to, financial projections) (the respective members“Information”); (b) making reasonably available your officers, directors, officersemployees, partnersaccountants, agents counsel and employees of Jxxxxx Xxxxxx, and any person controlling Jxxxxx Xxxxxx or any of its affiliates other representatives (collectively, the “Indemnified PersonsRepresentatives”); (c) using commercially reasonable efforts to ensure that the distribution efforts of Dxxxxx Xxxxxxxx benefit materially from your existing investor relationships and against, your existing banking relationships (without jeopardizing the anticipated financial benefits of identifying new investors); and the Company agrees that no Indemnified Person shall have any liability to the Company or its owners, parents, affiliates, security holders or creditors for, any losses, claims, damages or liabilities (including actions or proceedings in respect thereof) (collectively, “Liabilities”) (A) related to or arising out of (i) the Company’s actions or failures to act (including statements or omissions made or information provided by the Company or its agents) in connection with the Transaction or (ii) actions or failures to act by an Indemnified Person with the Company’s consent or in reliance on the Company’s actions or failures to act in connection with the Transaction or (Bd) otherwise related to or arising out of the Agreement, Jxxxxx Xxxxxx’x performance thereof or any other services Jxxxxx Xxxxxx is asked to provide to the Company (reasonably assisting Dxxxxx Xxxxxxxx in each caseits distribution efforts, including related activities prior to by making presentations regarding the date hereof), except that this clause (B) shall not apply to any Liabilities to the extent that they are finally determined by a court of competent jurisdiction to have resulted primarily from the gross negligence, fraud or willful misconduct of such Indemnified Person. If such indemnification is for any reason not available or insufficient to hold an Indemnified Person harmless, the Company agrees to contribute to the Liabilities involved in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, business and by Jxxxxx Xxxxxx, on the other hand, in respect of the Agreement or, if such allocation is determined by a court of competent jurisdiction to be unavailable, in such proportion as is appropriate to reflect other equitable considerations such as the relative fault affairs of the Company on the and its subsidiaries, as appropriate, at one hand or more one-on-one meetings of prospective Investors that have agreed to mutually acceptable confidentiality arrangements. In performing its services hereunder, Dxxxxx Xxxxxxxx shall be entitled to rely upon and of Jxxxxx Xxxxxx on the other hand; provided, however, that, to the extent permitted by applicable law, the Indemnified Persons shall not be responsible for expenses the accuracy or completeness of information supplied to it by the Company or any of its Representatives and Liabilities shall not be responsible for conducting any appraisal of assets or liabilities. The Company represents and warrants to Dxxxxx Xxxxxxxx that all Information relating to the Company or which the Company provides in writing (collectively, the aggregate are “Materials”) will be materially complete and correct. The Company further represents and warrants that any projections provided by it to Dxxxxx Xxxxxxxx will have been prepared in excess good faith and will be based upon assumptions, which, in light of the amount of all fees actually received by Jxxxxx Xxxxxx from the circumstances under which they are made, are reasonable. The Company pursuant to the Agreement. Relative benefits to the Company, on the one hand, recognizes and Jxxxxx Xxxxxx, on the other hand, in respect of the Agreement shall be deemed to be in the same proportion as confirms that Dxxxxx Xxxxxxxx (i) will use and rely primarily on the total value received or proposed to be received by Materials and on information available from generally recognized public sources in performing the Indemnifying Parties in connection with any financing services contemplated by this Agreement without having independently verified the Agreement, bears to same; (ii) all fees actually received is authorized to transmit to any prospective investor the Materials and other legal documentation supplied to Dxxxxx Xxxxxxxx for transmission to parties that have entered into a customary form of confidentiality agreement (including a “click-through” on a secure website) by or committed on behalf of the Company; (iii) does not assume responsibility for the accuracy or completeness of the Materials and such other information; (iv) will not make an appraisal of the Company; and (v) retains the right to Jxxxxx Xxxxxx in connection with continue to perform due diligence during the Agreementcourse of its engagement hereunder to the extent that it is reasonably necessary for it to perform the services contemplated hereby (it being understood that Dxxxxx Xxxxxxxx will not be authorized to act as an initial purchaser or underwriter but will merely be acting as a placement agent without underwriter liability under the Securities Act of 1933).
Appears in 1 contract
Highly Confidential. ANNEX B In further consideration of the agreements contained in the Agreement of which this Annex B is a part, the The Company agrees represents and warrants to indemnify and hold harmless Jxxxxx Xxxxxx, its affiliates, the respective members, directors, officers, partners, agents and employees of Jxxxxx Xxxxxx, and any person controlling Jxxxxx Xxxxxx or any of its affiliates (collectively, “Indemnified Persons”) from and against, and the Company agrees that no Indemnified Person shall have any liability all Information relating to the Company or its owners, parents, affiliates, security holders or creditors for, any losses, claims, damages or liabilities (including actions or proceedings which the Company provides in respect thereof) writing (collectively, the “LiabilitiesMaterials”) (A) related will be materially complete and correct. The Company further represents and warrants that any projections provided by it to or arising out Jxxxxx Xxxxxx will have been prepared in good faith and will be based upon assumptions, which, in light of the circumstances under which they are made, are reasonable. The Company recognizes and confirms that Jxxxxx Xxxxxx (i) will use and rely primarily on the Company’s actions or failures to act (including statements or omissions made or Materials and on information provided available from generally recognized public sources in performing the services contemplated by this Agreement without having independently verified the Company or its agents) in connection with the Transaction or same; (ii) actions is authorized to transmit to any prospective investor the Materials and other legal documentation supplied to Jxxxxx Xxxxxx for transmission to parties that have entered into a customary form of confidentiality agreement (including a “click-through” on a secure website) by or failures on behalf of the Company; (iii) does not assume responsibility for the accuracy or completeness of the Materials and such other information; (iv) will not make an appraisal of the Company; and (v) retains the right to continue to perform due diligence during the course of its engagement hereunder to the extent that it is reasonably necessary for it to perform the services contemplated hereby (it being understood that Jxxxxx Xxxxxx will not be authorized to act by as an Indemnified Person with initial purchaser or underwriter but will merely be acting as a placement agent without underwriter liability under the Company’s consent or in reliance on the Company’s actions or failures to act in Securities Act of 1933). In connection with the Transaction or (B) otherwise related to or arising out of the AgreementJxxxxx Xxxxxx'x engagement, Jxxxxx Xxxxxx’x performance thereof or any other services Jxxxxx Xxxxxx is asked to provide for all Transactions reasonably satisfactory to the Company (in each casethe sole discretion of the Company), it is understood and agreed that Jxxxxx Xxxxxx will manage and control all aspects of the placement of any Transaction in consultation with you, including related activities prior decisions as to the date hereofselection of prospective Investors, when commitments will be accepted and the final allocations of the commitments among the Investors (which shall be done solely with the Company’s approval). It is understood that no Investor investing in any Transaction will receive compensation from you in order to obtain its commitment, except that this clause (B) shall not apply as contemplated herein, including upfront fees paid to all Investors to ensure a successful placement of any Liabilities to the extent that they are finally determined by a court of competent jurisdiction to have resulted primarily from the gross negligenceTransaction, fraud or willful misconduct of such Indemnified Person. If such indemnification is for any reason not available or insufficient to hold an Indemnified Person harmless, the Company agrees to contribute to the Liabilities involved in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and otherwise directed by Jxxxxx Xxxxxx, on the other hand, in respect of the Agreement or, if such allocation is determined by a court of competent jurisdiction to be unavailable, in such proportion as is appropriate to reflect other equitable considerations such as the relative fault of the Company on the one hand and of Jxxxxx Xxxxxx on the other hand; provided, however, that, to the extent permitted by applicable law, the Indemnified Persons shall not be responsible for expenses and Liabilities which in the aggregate are in excess of the amount of all fees actually received by Jxxxxx Xxxxxx from the Company pursuant to the Agreement. Relative benefits to the Company, on the one hand, and Jxxxxx Xxxxxx, on the other hand, in respect of the Agreement shall be deemed to be in the same proportion as (i) the total value received or proposed to be received by the Indemnifying Parties in connection with any financing contemplated by the Agreement, bears to (ii) all fees actually received by or committed to Jxxxxx Xxxxxx in connection with the Agreement.
Appears in 1 contract
Highly Confidential. ANNEX B In further consideration of the agreements contained in the Agreement of which this Annex B is a part, the Company agrees to indemnify and hold harmless Jxxxxx Xxxxxx, its affiliates, the respective members, directors, officers, partners, agents and employees of Jxxxxx Xxxxxx, and any person controlling Jxxxxx Xxxxxx or any of its affiliates (collectively, “Indemnified Persons”) from and against, and the Company agrees that no Indemnified Person shall have any liability to the Company or its owners, parents, affiliates, security holders or creditors for, any losses, claims, damages or liabilities (including actions or proceedings in respect thereof) (collectively, “Liabilities”) (A) related to or arising out of (i) the Company’s actions or failures to act (including statements or omissions made or information provided by the Company or its agents) in connection with the Transaction or (ii) actions or failures to act by an Indemnified Person with the Company’s consent or in reliance on the Company’s actions or failures to act in connection with the Transaction or (B) otherwise related to or arising out of the Agreement, Jxxxxx Xxxxxx’x performance thereof or any other services Jxxxxx Xxxxxx is asked to provide to the Company (in each case, including related activities prior to the date hereof), except that this clause (B) shall not apply to any Liabilities to the extent that they are finally determined by a court of competent jurisdiction to have resulted primarily from the gross negligence, fraud or willful misconduct of such Indemnified Person. If such indemnification is for any reason not available or insufficient to hold an Indemnified Person harmless, the Company agrees to contribute to the Liabilities involved in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and by Jxxxxx Xxxxxx, on the other hand, in respect of the Agreement or, if such allocation is determined by a court of competent jurisdiction to be unavailable, in such proportion as is appropriate to reflect other equitable considerations such as the relative fault of the Company on the one hand and of Jxxxxx Xxxxxx on the other hand; provided, however, that, to the extent permitted by applicable law, the Indemnified Persons shall not be responsible for expenses and Liabilities which in the aggregate are in excess of the amount of all fees actually received by Jxxxxx Xxxxxx from the Company pursuant to the Agreement. Relative benefits to the Company, on the one hand, and Jxxxxx Xxxxxx, on the other hand, in respect of the Agreement shall be deemed to be in the same proportion as (i) the total value received or proposed to be received by the Indemnifying Parties in connection with any financing contemplated by the Agreement, bears to (ii) all fees actually received by or committed to Jxxxxx Xxxxxx in connection with the Agreement.. The Company will not permit any settlement or compromise to include, or consent to the entry of any judgment that includes, a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of an Indemnified Person, without such Indemnified Person’s prior written consent, which shall not be unreasonably delayed, conditioned or withheld. If any Indemnified Person becomes involved in any capacity in any action, claim, suit, investigation or proceeding, actual or threatened, brought by or against any person, including stockholders of the Company, in connection with or as a result of the engagement or any matter referred to in the engagement the Company also agrees to reimburse such Indemnified Persons for their reasonable and documented out-of-pocket expenses (including, without limitation, reasonable legal fees and other costs and expenses incurred in connection with investigating, preparing for and responding to third party subpoenas or enforcing the engagement) as such expenses are incurred. The Company’s obligations pursuant to this Annex B shall inure to the benefit of any successors, assigns, heirs and personal representatives of each Indemnified Person and are in addition to any rights that each Indemnified Person may have at common law or otherwise. Highly Confidential ANNEX C
Appears in 1 contract
Highly Confidential. ANNEX B In further consideration of the agreements contained in the Agreement of which this Annex B is a part, the Company agrees to indemnify and hold harmless Jxxxxx XxxxxxDxxxxx Xxxxxxxx, its affiliates, the respective members, directors, officers, partners, agents and employees of Jxxxxx XxxxxxDxxxxx Xxxxxxxx, and any person controlling Jxxxxx Xxxxxx Dxxxxx Xxxxxxxx or any of its affiliates (collectively, “Indemnified Persons”) from and against, and the Company agrees that no Indemnified Person shall have any liability to the Company or its owners, parents, affiliates, security holders or creditors for, any losses, claims, damages or liabilities (including actions or proceedings in respect thereof) (collectively, “Liabilities”) (A) related to or arising out of (i) the Company’s actions or failures to act (including statements or omissions made or information provided by the Company or its agents) in connection with the Transaction or (ii) actions or failures to act by an Indemnified Person with the Company’s consent or in reliance on the Company’s actions or failures to act in connection with the Transaction or (B) otherwise related to or arising out of the Agreement, Jxxxxx Xxxxxx’x Dxxxxx Xxxxxxxx’x performance thereof or any other services Jxxxxx Xxxxxx Dxxxxx Xxxxxxxx is asked to provide to the Company (in each case, including related activities prior to the date hereof), except that this clause (B) shall not apply to any Liabilities to the extent that they are finally determined by a court of competent jurisdiction to have resulted primarily from the gross negligence, fraud or willful misconduct of such Indemnified Person. If such indemnification is for any reason not available or insufficient to hold an Indemnified Person harmless, the Company agrees to contribute to the Liabilities involved in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and by Jxxxxx XxxxxxDxxxxx Xxxxxxxx, on the other hand, in respect of the Agreement or, if such allocation is determined by a court of competent jurisdiction to be unavailable, in such proportion as is appropriate to reflect other equitable considerations such as the relative fault of the Company on the one hand and of Jxxxxx Xxxxxx Dxxxxx Xxxxxxxx on the other hand; provided, however, that, to the extent permitted by applicable law, the Indemnified Persons shall not be responsible for expenses and Liabilities which in the aggregate are in excess of the amount of all fees actually received by Jxxxxx Xxxxxx Dxxxxx Xxxxxxxx from the Company pursuant to the Agreement. Relative benefits to the Company, on the one hand, and Jxxxxx XxxxxxDxxxxx Xxxxxxxx, on the other hand, in respect of the Agreement shall be deemed to be in the same proportion as (i) the total value received or proposed to be received by the Indemnifying Parties in connection with any financing contemplated by the Agreement, bears to (ii) all fees actually received by or committed to Jxxxxx Xxxxxx Dxxxxx Xxxxxxxx in connection with the Agreement.. The Company will not permit any settlement or compromise to include, or consent to the entry of any judgment that includes, a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of an Indemnified Person, without such Indemnified Person’s prior written consent, which shall not be unreasonably delayed, conditioned or withheld. If any Indemnified Person becomes involved in any capacity in any action, claim, suit, investigation or proceeding, actual or threatened, brought by or against any person, including stockholders of the Company, in connection with or as a result of the engagement or any matter referred to in the engagement the Company also agrees to reimburse such Indemnified Persons for their reasonable and documented out-of-pocket expenses (including, without limitation, reasonable legal fees and other costs and expenses incurred in connection with investigating, preparing for and responding to third party subpoenas or enforcing the engagement) as such expenses are incurred. The Company’s obligations pursuant to this Annex B shall inure to the benefit of any successors, assigns, heirs and personal representatives of each Indemnified Person and are in addition to any rights that each Indemnified Person may have at common law or otherwise. Highly Confidential ANNEX C
Appears in 1 contract
Highly Confidential. ANNEX B In further consideration of the agreements contained in the Agreement of which this Annex B is a partconnection with Dxxxxx Xxxxxxxx’x engagement, the Company agrees will actively assist Dxxxxx Xxxxxxxx in completing Transactions that are reasonably satisfactory to indemnify the Company in the Company’s sole discretion. Such assistance shall include (a) furnishing to, or causing to be furnished to, Dxxxxx Xxxxxxxx such information concerning the Company that Dxxxxx Xxxxxxxx and hold harmless Jxxxxx Xxxxxxthe Company may reasonably deem necessary or appropriate to complete such distribution (including, its affiliatesbut not limited to, financial projections) (the respective members“Information”); (b) making reasonably available your officers, directors, officersemployees, partnersaccountants, agents counsel and employees other representatives (collectively, the “Representatives”); (c) using commercially reasonable efforts to- ensure that the distribution efforts of Jxxxxx XxxxxxDxxxxx Xxxxxxxx benefit materially from your existing investor relationships and your existing banking relationships (without jeopardizing the anticipated financial benefits of identifying new investors); and (d) otherwise reasonably assisting Dxxxxx Xxxxxxxx in its distribution efforts, including by making presentations regarding the business and any person controlling Jxxxxx Xxxxxx affairs of the Company and its subsidiaries, as appropriate, at one or more one-on-one meetings of prospective investors that have agreed to mutually acceptable confidentiality arrangements. In performing its services hereunder, Dxxxxx Xxxxxxxx shall be entitled to rely upon and shall not be responsible for the accuracy or completeness of information supplied to it by the Company or any of its affiliates (collectively, “Indemnified Persons”) from Representatives and against, shall not be responsible for conducting any appraisal of assets or liabilities. The Company represents and the Company agrees warrants to Dxxxxx Xxxxxxxx that no Indemnified Person shall have any liability all Information relating to the Company or its owners, parents, affiliates, security holders or creditors for, any losses, claims, damages or liabilities (including actions or proceedings which the Company provides in respect thereof) writing (collectively, the “LiabilitiesMaterials”) (A) related will be materially complete and correct. The Company further represents and warrants that any projections provided by it to or arising out Dxxxxx Xxxxxxxx will have been prepared in good faith and will be based upon assumptions, which, in light of the circumstances under which they are made, are reasonable. The Company recognizes and confirms that Dxxxxx Xxxxxxxx (i) will use and rely primarily on the Company’s actions or failures to act (including statements or omissions made or Materials and on information provided available from generally recognized public sources in performing the services contemplated by this Agreement without having independently verified the Company or its agents) in connection with the Transaction or same; (ii) actions is authorized to transmit to any prospective investor the Materials and other legal documentation supplied to Dxxxxx Xxxxxxxx for transmission to parties that have entered into a customary form of confidentiality agreement (including a “click-through” on a secure website) by or failures on behalf of the Company; (iii) does not assume responsibility for the accuracy or completeness of the Materials and such other information; (iv) will not make an appraisal of the Company; and (v) retains the right to continue to perform due diligence during the course of its engagement hereunder to the extent that it is reasonably necessary for it to perform the services contemplated hereby (it being understood that Dxxxxx Xxxxxxxx will not be authorized to act by as an Indemnified Person with initial purchaser or underwriter but will be acting as a placement agent without underwriter liability under the Company’s consent or in reliance on the Company’s actions or failures to act in Securities Act of 1933). In connection with the Transaction or (B) otherwise related to or arising out of the AgreementDxxxxx Xxxxxxxx’x engagement, Jxxxxx Xxxxxx’x performance thereof or any other services Jxxxxx Xxxxxx is asked to provide for all Transactions reasonably satisfactory to the Company (in each case, including related activities prior to the date hereofsole discretion of the Company), except that it is understood and agreed that, other than as set forth in this clause (B) shall not apply to Agreement, Dxxxxx Xxxxxxxx will manage and control all aspects of the placement of any Liabilities to the extent that they are finally determined by a court of competent jurisdiction to have resulted primarily from the gross negligence, fraud or willful misconduct of such Indemnified Person. If such indemnification is for any reason not available or insufficient to hold an Indemnified Person harmless, the Company agrees to contribute to the Liabilities involved Transaction in such proportion as is appropriate to reflect the relative benefits received by consultation with the Company, on the one hand, and by Jxxxxx Xxxxxx, on the other hand, in respect of the Agreement or, if such allocation is determined by a court of competent jurisdiction to be unavailable, in such proportion as is appropriate to reflect other equitable considerations such as the relative fault of the Company on the one hand and of Jxxxxx Xxxxxx on the other hand; provided, however, that, to the extent permitted by applicable law, the Indemnified Persons shall not be responsible for expenses and Liabilities which in the aggregate are in excess of the amount of all fees actually received by Jxxxxx Xxxxxx from the Company pursuant to the Agreement. Relative benefits to the Company, on the one hand, and Jxxxxx Xxxxxx, on the other hand, in respect of the Agreement shall be deemed to be in the same proportion as (i) the total value received or proposed to be received by the Indemnifying Parties in connection with any financing contemplated by the Agreement, bears to (ii) all fees actually received by or committed to Jxxxxx Xxxxxx in connection with the Agreement.
Appears in 1 contract
